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1974 Supreme(Mad) 294
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K N MUDALIAR & THE HONOURABLE MR. JUSTICE PAUL
In Re : Karunakaran and Another - Appellant
Versus
. - Respondent
Case No : Referred Trial No. 3 of 1974
Decided On : 22 July 1974
The court held that the prosecution's case was fabricated and that the evidence of P.Ws. 1 to 5 was not reliable because the inquest report and the statements of witnesses recorded during the inquest were not sent to the Sub-Magistrate on the day they purported to have been sent, the inquest report was initialled by the Sub-Magistrate, but the date seal affixed to the inquest report contained the date written in ink, the statements of the witnesses recorded during the inquest did not contain the initials of the Sub-Magistrate at all, and there was a lurking and gnawing suspicion in the court's mind whether they were smuggled into the Court of the Sub-Magistrate belatedly and far later.
Headnote:
CRIMINAL APPEAL - MURDER - SECTION 302 READ WITH SECTION 34, INDIAN PENAL CODE - CONVICTION AND SENTENCE OF DEATH - CHALLENGE - FABRICATION OF EVIDENCE BY INVESTIGATING MACHINERY - RELIABILITY OF PROSECUTION WITNESSES - JUDICIAL CONFESSION - EXTRAJUDICIAL CONFESSION - SECTION 27 AND SECTION 8 OF THE EVIDENCE ACT - SECTION 154 OF THE CODE OF CRIMINAL PROCEDURE - SECTION 161(3) OF THE CODE OF CRIMINAL PROCEDURE - CIRCULAR, R.O.C. NO. 2272-A/74-F1 DATED 20-6-1974 - INSTRUCTIONS TO MAGISTRATES.
Fact of the Case:
The appellants were convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to death for the murder of Viswanatham Pillai, village munsif of Orathur. The prosecution alleged that the first appellant, who had a history of enmity with the deceased, took advantage of his Naxalite connection and exploited the services of the second appellant and one Thamizharasan for accomplishing the murder. The prosecution also alleged that there was a conspiracy at Orathur during the harvest season in the year 1971 "to annihilate the said Viswanatham Pillai" and that the second appellant and Thamizharasan continued the conspiracy on 25-4-1971 at Neyveli. The trial court found no difficulty in finding that the first appellant is not a Naxalite and that the testimony of P.W. 7 for proving the conspiracy at Orathur is unbelievable and also the testimony of P.W. 9 regarding the conspiracy at Neyveli on 25-4-1971.
Finding of the Court:
The court found that the prosecution's case was fabricated and that the evidence of P.Ws. 1 to 5, who were allegedly examined during the inquest, was not reliable. The court also found that the judicial confession made by the second appellant to the Sub-Magistrate, Chidambaram, in Ex. P-4, recorded as late as 2-8-1971, was not voluntary or true. The court further found that the extra-judicial confession made by the second appellant to P.Ws. 10 to 13 was also not reliable. The court, however, accepted the testimony of P.W. 4, who was an eye-witness to the occurrence, and the contents of Ex. P-1, the report given by P.W. 4 to the police, and convicted the first appellant under Section 302 of the Indian Penal Code and sentenced him to death.
Issues: 1. Whether the prosecution's case was fabricated and the evidence of P.Ws. 1 to 5 was reliable? 2. Whether the judicial confession made by the second appellant to the Sub-Magistrate, Chidambaram, in Ex. P-4, was voluntary or true? 3. Whether the extra-judicial confession made by the second appellant to P.Ws. 10 to 13 was reliable? 4. Whether the testimony of P.W. 4 and the contents of Ex. P-1 were reliable?
Ratio Decidendi: 1. The court held that the prosecution's case was fabricated and that the evidence of P.Ws. 1 to 5 was not reliable because: a. The inquest report and the statements of witnesses recorded during the inquest were not sent to the Sub-Magistrate on the day they purported to have been sent. b. The inquest report was initialled by the Sub-Magistrate, but the date seal affixed to the inquest report contained the date written in ink. c. The statements of the witnesses recorded during the inquest did not contain the initials of the Sub-Magistrate at all. d. There was a lurking and gnawing suspicion in the court's mind whether they were smuggled into the Court of the Sub-Magistrate belatedly and far later. 2. The court held that the judicial confession made by the second appellant to the Sub-Magistrate, Chidambaram, in Ex. P-4, was not voluntary or true because: a. The second appellant retracted the confession. b. The second appellant stated that he was under coercion and dictation of the C.I.D. c. The statement made to the Sub-Magistrate was not corroborated by any other evidence. 3. The court held that the extra-judicial confession made by the second appellant to P.Ws. 10 to 13 was not reliable because: a. The confession was made as late as July 1971, or even later. b. The witnesses were not examined until after the second appellant had been arrested and the charge-sheet had been filed. c. There was no general corroboration of the confession. 4. The court held that the testimony of P.W. 4 and the contents of Ex. P-1 were reliable because: a. P.W. 4 was an eye-witness to the occurrence. b. The contents of Ex. P-1 were consistent with P.W. 4's testimony. c. There was no motive for P.W. 4 to implicate the first appellant falsely.
Final Decision: The court set aside the conviction and sentence of the second appellant and acquitted him. The court confirmed the conviction and sentence of the first appellant and dismissed his appeal.
K. N. MUDALIYAR, J.
These two appeals are filed by the two appellants (Karunakaran, the first accused and Jabamani Nadar alias Kanyakumari Comrade alias Ramu, the second accused) against their conviction for an offence under Section 302 read with Section 34, Indian Penal Code and the sentence of death awarded against them.
2. At one stage, we thought that this case falls within a narrow compass, but the more we delved deeper and deeper, the case presented some complex difficulties and the entire complexity arose from the fabrication resorted to in an unabashed manner by the investigating machinery as will be dealt with fairly elaborately in the later portion of our judgment. The prosecution would have it that the two appellants and one Thamizharasan alias Ramaswami are the main participants in this dastardly crime of killing Viswanatham Pillai, village munsif of Orathur, while he was asleep on M.O.I. in front of his cattle shed.
3. It is alleged, and there is substantial amount of evidence in support of it, that there has been a history of feud ranging over nearly eight years between the deceased Viswanatham Pillai on the one hand and the first appellant and his father on the other. The causes of their bitter enmity are many and they are fairly elaborately dealt with in paragraph 4 of the judgment of the trial Court.
4. The prosecution would have it that the first appellant nurturing this enmity against Viswanatham Pillai, took advantage of his Naxalite connection and exploited the services of the second appellant and one Thamizharasan for accomplishing the murder of his enemy Viswanatham Pillai (deceased). The prosecution went to the extent of suggesting that there was a conspiracy at Orathur during the harvest season in the year 1971 "to annihilate the said Viswanatham Pillai" as though he was a mighty agrarian force and that the second appellant and Thamizharasan, as between themselves, also continued the conspiracy on 25-4-1971 at Neyveli. At this stage, we would like to dispose of this part of the story of the prosecution, namely the conspiracy on the part of the second appellant and Thamizharasan (who is still absconding) and the first appellant. The learned trial Judge found no difficulty in finding that the first appellant is not a Naxalite and that the testimony of P.W. 7 for proving the conspiracy at Orathur is unbelievable and also the testimony of P.W. 9 regarding the conspiracy at Neyveli on 25-4-1971. We are immensely impressed by the plea of the first appellant that he has absolutely nothing to do with the Naxalite movement since he is not himself a Naxalite but he is a member of the D.M.K. Party to which he appears to have migrated from the Dravida Kazhagam Party in whose leader's company he found himself in a photograph, M.O. 9. We ourselves are certain that no member of the Dravida Kazhagam would at any stage defect over to the Naxalite movement. In this background of our finding as was done by the learned trial Judge about the total disconnection between the first appellant and the second appellant, we would like to examine the case as proved by the prosecution by the evidence of P.W. 4 who is the author of Exhibit P-1.
5. P.W. 4 is the younger brother of Viswanatham Pillai (deceased). He knew first accused (first appellant). He lived with his brother Viswanatham Pillai, On 26-4-1971, he saw a tube light burning near the cattle shed of his elder brother, Viswanatham Pillai. There was also a name board of the Police Station where a light was burning from 9 O'clock to 10-30 p.m. He was sleeping on the parapet wall situated on the eastern side of the sluices near the scene of occurrence. His brother, Viswanatham Pillai the Village Munsif of Orathur, was sleeping as usual on a bench in front of the cattle shed near the Mathagu, P.W. 4 woke up on hearing a noise at about 11-15 p.m. He heard the noise to the effect : "Younger brother ! Karunakaran is running after stabbing me with knife" Catch him"." P.W. 4
