Madras High CourtParanjothi vs State on 17 November, 2006Author:S.R.SingharaveluBench:S.R.Singharavelu,K.N.BashaBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


DATED : 17/11/2006


CORAM:
THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU
and
THE HONOURABLE MR.JUSTICE K.N.BASHA


Crl.A.No.537 of 1997
and Crl.R.C.No.615 of 1997


Paranjothi				... 	Appellant in
					    	Crl.A.537 of 1997					
						Accused No.1

Selvi Faustina, D/o.Durairaj		... 	Petitioner in
					    	Crl.R.C.615/1997/
					     	P.W.1

vs.


State, by Inspector of Police,
Watrap, Koomapatti Police Station,
Virudhunagar District.
(rime No.88/1996)			... 	Respondent in
					    	Crl.A.537/1997 &
					    	Respondent No.4 in
					    	Crl.R.C.615/1997

1.Jayaprakash
2.Sekar
3.Sankaiah				... 	Respondents 1 to 3
					    	in Crl.RC.615/1997/
					    	Accused Nos.2 to 4


	Criminal Appeal under Section 374  and Criminal Revision underSections
397and401of the Code of Criminal Procedure against the judgment of the
learned Additional Sessions Judge cum Chief Judicial Magistrate, Kamarajar
District at Srivilliputtur in S.C.No.97 of 1996, dated 24.06.1997.		


!For appellant   	...   		Mr.A.Padmanabhan
					in Crl.A.537/97

^For petitioner in 	... 		Mr.K.Jegannathan
Crl.R.C.615/97


For Respondent  	...    		Mr.P.N.Pandithurai,
in Crl.A.537/97 &			Addl.Public Prosecutor.


For Respondent
No.4 in Crl.R.C.
615 of 97

For Respondents    	...  		Mr.O.Venkatachalam
1 & 2 in
Crl.R.C.615 of 97


For Respondent     	...   		Mr.M.V.Vijayakumar
No.3 in Crl.R.C.615/97



:JUDGMENTS.R.SINGHARAVELU, J


	Criminal Appeal No.537/1997 is directed against the judgment, dated
24.06.1997, of the Additional Sessions Judge at Srivilliputtur in
S.C.No.97/1996, convicting the appellant/accused No.1 underSection 302IPC and
sentencing him  for life; convicting accused No.1 underSection 201IPC and
sentencing him for four years rigorous imprisonment with a fine of Rs.5,000/-,
in default simple imprisonment for one year and acquitting the remaining accused
2 to 4.   Criminal Revision No.615/1997 is directed against the acquittal of
accused Nos.2 to 4 by P.W.1.2.The brief facts of the prosecution case is as follows.(a)Accused No.4 is the father of accused No.1, whose friends are accused
Nos.2 and 3.  The occurrence is said to have taken place at 4.00 a.m. on03.04.1995 in the pump-set room of accused No.4, situate on the west of
Ramasamipuram, the resident village of accused No.4.  Accused No.1 and the
deceased Aruljothi were co-students and were in love to each other for the past
seven years preceding the occurrence.  They belonged to different sects in the
scheduled caste and so there was an opposition for their marriage from both the
families.  At last, accused No.1 converted as a Christian so as to marry the
deceased who already belonged to Christian Religion.  P.W.6, priest of a church,
solemnised their marriage on 15.07.1993 at St.Mary's Church at Madurai.    Ex.P-
14 is the Certificate of Marriage.  By then, the deceased was employed as a
teacher in R.C.School at Paattakulam, the headmaster of which is P.W.10.  The
Attendance Register of that School are Exs.P-15 and P-16.  Connected Record is
Ex.P-17.  At that time, accused No.1 was unemployed and six months after the
marriage, accused No.1 happened to get a job in the Southern Railways and
subsequent to his training at Trichy, he was employed at Rameshwaram and then at
Sivakasi as Booking Clerk.(b)Since accused No.1 happened to get a Central Government job, his father
accused No.4 began to insist him to marry his sister's daughter, after divorcing
the deceased.  There were letter correspondences and one such letter is Ex.P-1
addressed by accused No.4 to accused No.1, which went to the hands of the
deceased, who had sent it to her elder sister P.W.1 along with Ex.P-2 letter,
dated 01.11.1994, written by the deceased to P.W.1.  Besides the pressure given
by accused No.4 to accused No.1 to divorce the deceased, there was some
suspicion in the mind of accused No.1 as to how could the deceased become
pregnant when he was away.  This suspicious mind made their matrimonial life at
Indira Nagar at Srivilliputtur a sad one.  There was no love lost between them
thereafter, as is evident also from Headmaster P.W.10.  Even the letters
addressed by the deceased, which were subsequently recovered at the instance of
P.W.1 from the house of accused No.1, would indicate the same.(c)On 02.04.1995, by representing that they are visiting P.W.1, the
deceased was taken by accused No.1, but ultimately accused No.1 took her to
Madurai, where they witnessed the film "BOMBAY', taken food in a hotel and come
to the bus-stand of Krishnankoil at 10.00 p.m. and boarded the bus to visit the
parents of accused No.1.  That was seen by P.W.2 Lawrence, along with accused
Nos.2 and 3, from whom the TVS 50 vehicle (M.O.14) obtained by accused No.1 was
utilised to carry the deceased to Ramasamipuram.  This was also seen by P.Ws.2
and 4.  But without going to parents house, she was taken to the pump-set room
of accused No.4 lying on the west of the village.  Where, when they were taking
rest, at about 4.00 a.m. on 03.04.1995, it was said that accused Nos.2 and 3
held the limbs of the deceased when accused No.1 tied M.Os.15 and 16 Nylon Ropes
around her neck and caused her death.  Subsequently, accused No.1 informed
accused No.4 and at the instance of accused No.4, at 10.00 p.m. on the night of
03.04.1995, along with accused Nos.2 and 3, the body of the deceased was buried
in the set thope belonged to accused No.4.(d)On the next day, i.e. 04.04.1995, accused No.1 went to P.W.1 and
represented as if the deceased missed at Madurai while they were coming along to
see P.W.1.  On enquiry by P.W.1, it was discovered that from 03.04.1995 onwards,
the deceased did not attend the school where she was employed.  There was a
telegram through Ex.P-3 issued to P.W.1 on 06.04.1995, as if she was called by
the deceased immediately.  A complaint was lodged on 06.04.1995 through Ex.P-29
by accused No.1 himself as if his wife, the deceased, is missing.  This telegram
and the complaint was intended to suppress the guilt of the accused.(e)On 09.04.1995, Ex.P-4 complaint was given by P.W.1 expressing doubt
upon the family of accused No.4, especially accused No.1, who had some grudge
over the deceased in order to marry another girl, namely the sister's daughter
of accused No.1.  That complaint was received by P.W.20 Sub- Inspector of Police
of Koomapatti Police Station and upon which a case was registered in Crime
No.88/1995 at 8.00 a.m. on 09.04.1995 as 'woman missing'.  Ex.P-46 is the
printed form of FIR.  P.W.20 had immediately examined Sebasthiammal, mother of
P.W.2 and the relatives of accused No.1, including his mother and brother.(f)At 7.00 a.m. on 10.04.1995, apprehending that he would be caught,
accused No.1 appeared before P.W.13, the Village Administrative Officer of
Kansapuram, and gave an extra-judicial confession statement through Ex.P-22.
P.W.13 recorded it, brought accused No.1, along with his report  Ex.P-23, to the
Police Station at Koomapatti at about      8.00 a.m. on 10.04.1995 and placed it
before P.W.20 Sub-Inspector of Police, who altered the FIR into one underSection 302IPC and sent Express Report through Ex.P-47 to the Court as well as
to the higher authorities.(g)On receipt of copy of Express FIR Ex.P-47 at 8.30 a.m. on 10.04.1995,
P.W.21 Inspector of Police, Watrap, took up the investigation, recorded the
statement accused No.1 and through the admissible portion of it    (Ex.P-24),
accused No.1 identified the place of their burial of the body of the deceased.
At 10.45 a.m., the place of burial of the dead body as located by accused No.1
was visited and an observation mahazar Ex.P-25 was prepared by P.W.21, the
Investigation Officer.  P.W.13 and his menial attested that document.  Ex.P-48
sketch of the place was prepared by P.W.21.  Telephonic message was given to
P.W.18, the Tahsildar, for inquest.  At 1.00 p.m., P.W.18 came to the spot and,
as located by accused No.1, the body of the deceased was exhumed and an inquest
was held through Ex.P-43 between 3.00 and   4.00 p.m. by P.W.18 Tahsildar.  By
then P.W.1 gave a statement which was appended along with the inquest report.
The body of the deceased was sent for post mortem and P.W.19 Dr.Paulraj
conducted post mortem at 4.30 p.m.  The following features and injuries were
found:"Its condition then was partly decomposed.  Post mortem commenced at 4.30
p.m. on 10.4.95.  Appearances found at the post mortem an exhumed body of a
female Arul Jothi aged 26. lies on its back.  Both eyes are protruded.  Peeling
of skin all over the body from face to feet.  Skin of the scalp peeled.  Reddish
fluids discharged from the Right ear.  Tongue protruded bitten by teeth.  Teeth
7\7/7\7 Body partly decomposed.External Examination:1.Huge Reddish contusion present from the left ear lobe to frontal part of
the scalp. 6 cm x 4 cm.2.Contusion on the Right parietal part of the Scalp   3 cm x 3 cm.3.Reddish blue contusion on the inner aspect of right upper arm 4 cm x 3
cm neck of Right humerus fracture.4.Reddish brown contusion on the right neck extends from the front of the
neck to the lateral side of the neck 8 cm x 1 cm.5.Right side of upper part of the chest diffuse Reddish blue contusion.Internal Examination:Skull: Parietal bone of Right and left skull fracture.  Membrane intact
except right parietal part of the membrane torn brain matter liquified.
	Thorax: Trachea, larynx Reddish brown contusion.  On dissection three
contusion on the neck pale in white in colour.  Hyoid bone fractured.  Middle of
the bone Ribs normal.  Heart Empty pale.  Lungs - Bluish black colour.  Abdomen:Stomach: Empty.  Intestine distended with gas.  Liver, Spleen, Kidneys are
reddish brown in colour.  Uterus normal size and empty.  Bladder Empty."The post mortem doctor opined through Ex.P-45 post mortem certificate that
the deceased would have died about more than 7 days prior to autopsy due to
multiple injury and due to asphyxia (strangulation).(h)Material objects M.Os.1 to 9 and jewels were recovered from the body of
the deceased.  Subsequently, at 5.30 p.m. on 10.04.1995, M.O.14 TVS 50 vehicle
was recovered through Ex.P-26 mahazar from the pump-set room of accused No.4 and
that document was attested by P.W.13.  At 6.15 p.m., on the same day, M.Os.15
and 16 Nylon Ropes were recovered through Ex.P-27 mahazar attested by P.W.13.At about 7.00 p.m., the night of the same day, M.Os.10 to 13 jewels and  M.O.17
half-trouser were recovered through Ex.P-28 mahazar from P.W.12 Kanthiah to whom
they were said to have been given by accused No.1 by removing it from the body
of the deceased before ever it was buried by the accused party.(i)Accused Nos.2 and 3 were arrested at    2.00 p.m. on 11.04.1995 at
Puduppatti Bus-Stand.  They have given voluntary confession statements and the
admissible portion of them were marked as Exs.P-49 and Ex.P-31 respectively.  It
is through that confession, recovery of M.O.20 cycle of accused No.2 was made at
3.45 p.m. from the pump-set  house  of  accused  No.4  under  a  cover of
mahazar   Ex.P-33 which was attested by P.W.15, the Village Administrative
Officer of Puduppatti village.  At about    5.00 p.m., M.O.18 crow-bar and
M.O.19 spade were recovered in the pump-set of accused No.4 based on the
confession statement of accused No.3 under a mahazar Ex.P-32.  At 9.00 a.m. on
12.04.1995, Exs.P-1 to P-3 were produced by P.W.1 to P.W.21, the Investigation
Officer, which were received under a cover of mahazar Ex.P-12.  Exs.P-6 to 11
letters and covers were also recovered from the house of accused No.1 through a
mahazar (Ex.P-13).  Subsequently, Exs.P-15 to P-19 leave letters and notes on
the subject were recovered at 1.00 p.m. on 12.04.1995 under cover of Ex.P-20
mahazar from P.W.10 Headmaster of the school in which the deceased was employed.(j)The letters were sent for Handwriting Expert through a request letter
made to the Court under   Ex.P-34.  Ex.P-35 is the letter correspondence of the
court to the Expert.  The Report of the Expert is Ex.P-36.  The handwriting of
the deceased and accused No.4 found in such letters were also sent for analysis.
The reports were marked as Exs.P-41 and P-42.  P.W.17 Head-Clerk of the Judicial
Magistrate Court has also spoken to these aspects. By then P.W.21 was
transferred and P.W.22 took up the further investigation in the case, examined
witnessed and laid charge sheet against the accused 1 to 4 on 20.07.1995.3.In order to bring home the guilt of the accused, on the side of
prosecution 22 witnesses were examined, 49 exhibits and 20 material objects were
marked.  There was no witness on the side of the accused.  The accused, when
interrogated with the incriminating circumstances against them, pleaded
innocence and said not guilty.4.Heard Mr.A.Padmanabhan, learned counsel appearing for accused No.1,
Mr.K.Jegannathan, learned counsel for the revision petitioner, learned
Additional Public Prosecutor for the State, Mr.O.Venkatachalam for the
respondents 1 and 2 in the revision and Mr.M.V.Vijayakumar for respondent No.3
in the revision.5. The entire case against the accused rests upon circumstantial evidence
and the circumstances are:(i)the last seen theory projected by P.Ws.2 and 4 along with a similar
material in a different way through P.Ws.8 and 9;(ii)the letters Exs.P-1 and P-2 and Exs.P-6 to P-11.  Ex.P-1 dated
16.08.1994 alleged to have been written by accused No.4 to accused No.1 to
disclose instigation.  Ex.P-2 and P-6 to P-11, letters and covers, alleged to
have been written by the deceased to accused No.1;(iii)extra judicial confession alleged to have been given by accused No.1
to P.W.13 Village Administrative Officer on 10.04.1995 at 7.00 a.m. through
Ex.P-22;(iv)the other evidentiary aspect is from P.W.10, the Headmaster of the
Middle School, Paattakulam, who say that the deceased absented herself from duty
from 03.04.1995; P.W.7, the Station Master of Sivakasi Railway Station, that
accused No.1 attended duty on 01.04.1995 and he was on leave on 3rd and 4th of
April, 1995, reported sick on 06.04.1995 and never turned up for duty from
07.04.1995; and(v)accused No.1 gave a report on 06.04.1995 through Ex.P-29 to the
Commissioner of Police, Madurai, complaining that his wife was missing; that
letter was forwarded to the Sub-Inspector of Police, Thideer Nagar Police
Station, who registered a case under the head of 'woman missing'.  On the same
day, a telegram was shown to have been sent through  Ex.P-3 to P.W.1 as if the
deceased had sent it.  Since the deceased had died even earlier, the learned
Additional Public Prosecutor submitted that this should be the handy work of
accused No.1 as a defensive tactics.  that tactics was said to have been adopted
by accused No.1 by enquiring about the whereabouts of his wife with P.W.10 on
05.04.1995 also.6.It is only based upon the above said five points, the prosecution case
is rested and we have to testify the veracity of the same and also as to whether
they would form a continuous link  indicating nothing than the guilt of the
accused.  It is so because in a case of circumstantial evidence, the settled
position of law as decided by  the Apex Court inBalwinder Singh v. State of
Punjab(AIR 1996 SC 607), is as follows:"The circumstances from which the conclusion of guilt is to be drawn
should be fully proved and those circumstances must be conclusive in nature to
connect the accused with the crime.  All the links in the chain of events must
be established beyond any reasonable doubt and the established circumstances
should be consistent only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence.  In a case based on circumstantial
evidence the Court has to be on its guard to avoid the danger of allowing
suspicion to take the place of legal proof and has to be watchful to avoid the
danger of being swayed by emotional considerations, however strong they may be,
to take the place of proof."7.  Before ever we discuss about the veracity of the above circumstances,
it is to be noted that the fact remains that the death of Aruljothi was proved
by the report of post mortem through Ex.P.45 and also as spoken to by the author
P.W.19, Doctor Paulraj.  There is no suggestion raised that deceased had a
natural death.8. Among the internal injuries on dissection, it was found that there was
fracture in the skull as well as hyoid bone.  As per the opinion of the Doctor,
the deceased would have died out of skull fracture and asphyxia.  In a suicidal
case, there will not be a skull fracture.  There is no circumstance found in
this case that the deceased would have committed suicide and the fact that there
was skull fracture would also exclude the same.  Thus, it is seen that the death
of the deceased was due to homicidal offence.9. So far as the last seen theory is concerned, the evidence of P.W.8 is
seeing the accused 1 to 3 going on the Ramasamipuram by-pass road towards east
to west in a TVS 50 vehicle at 9.00 p.m. on 03.04.1995.  Similarly, the evidence
of P.W.9 is also to the effect that accused Nos.1 to 3 who were found returning
from the farm-house of accused No.4 at 5.30 a.m. on 03.04.1995.  P.W.2 deposed
that on 02.04.1995 at 8.30 p.m. on his way to Puduppatti he got down at
Krishnankoil bus-stop and saw the deceased and accused No.1 travelling in the
same bus who also got down from the bus.  The evidence of P.W.4 is that at about
10.30 p.m. on 02.04.1995 he saw the deceased and accused No.1 going towards
Ramasamipuram.  This evidence of P.W.2 and P.W.4 do show that accused No.1 was
found on 02.04.1995 with the deceased.  P.W.1 also deposed that accused No.1 and
the deceased did not turn-up on 02.04.1995 to see her as promised earlier.  So,
under the pretext of going to P.W.1's house, the deceased was taken by accused
No.1 to Ramasamipuram, nearby village where of course the farm-house of accused
No.4 was said to situate.10. Now, apart from the last seen theory, we have to see as to whether
there is any other intrinsic circumstance to connect the accused with the death
of the deceased.  In this connection, there are two elements relied on by the
prosecution and they are (i) The extra judicial confession given by accused No.1
to P.W.13, the Village Administrative Officer, and, (ii) The letters written  by
the accused No.4 to accused No.1.	Coming to the  extra judicial confession, it
is found that there is no separate endorsement of time of recording such
statement.  But that was incorporated in the preamble of the statement and it
was found as 7.00a.m on 10.04.1995.  There is also signature of attester taken
by P.W.13.  More over, that statement was not in prescribed form.  It was no
also found recorded in the handwritings of the accused No.1.  There are two
contentions made about the place of recording of the statement.
One is in the office of the Village Administrative Officer and other is in the
Chavadi of the said village.  The occurrence was stated to have taken place in
the pump set room in the thope of the accused No.4.  But the evidence of P.W.4
is that he found the deceased and accused No.1  going to Ramasamypuram, but
nobody had seen them together in the farm house.  However, there is one strong
piece of evidence which will improbablise  the recording of extra judicial
confession from accused No.1, as spoken to by P.W.13.  This is so because
P.W.15, the Village Administrative Officer of Vadugapatti, in the course of his
cross examination, had deposed that at 7.00a.m on 10.04.1995, himself and
Annadurai, P.W.13, Village Administrative of Kansapuram along with Kumarpatti
Village Administrative Officer, Alagarsamy were present in the office of the
Revenue Inspector at Vathrayiruppu. It is the same time of 6.45a.m/7.00a.m on
10.04.1995, which was claimed by P.W.13 as if he was in his office at which time
accused No.1 volunteered his confessional statement before him, which was
recorded under Ex.p.22.  Thus,  the evidence of P.W.15, Village Administrative
Officer would cut at the very root of the case projected by P.W.13.  As per the
evidence of P.W.15, P.W.13 could not have been available in his office at
7.00a.m at 10.04.1995 as deposed by him in order to record the statement of
confession of A.1.11. Thus, it was shown that it is highly improbable for P.W.13, Annamalai
who have recorded the alleged extra judicial confession of A.1, because of the
fact that it was proved by P.W.15 , Co-village Administrative Officer that
himself and P.W.13 were available at 7.00a.m on 10.04.1995 at Vathrayiruppu
before the Revenue Inspector.  The non examination of the Revenue Inspector and
other persons said to have been available there may only strengthen the above
improbability.  This is so, because P.W.15 himself is very much emphatic and has
given a clear and cogent evidence in this regard and also withstood  the severe
cross examination made of him.  Thus, when the recording of extra judicial
confession by P.W.13 as unfolded by prosecution becomes improbable, then
alternatively in the absence of any other evidence the insertion of the same
should presumably be the  artistic and artificial work of the investigating
officer.  As  a matter of fact, it was suggested so to the Investigating
Officer.  In the absence of other alternative circumstances in which the said
confession was brought out, the hand work of the Investigating Officer thereon
gets probablised.   The moment that it is probablised as the handiwork of the
police officer, then it will be hit underSection 162of the Code of Criminal
Procedure.12. True it is that as observed in a case reported inSivakumar vs. State
by Inspector of Police((2006) 1SCC(Cri) 470), Village Administrative Officer
being not a police officer, he may not act as a public servant removable only
with the sanction of the local Government nor does he act in his capacity as a
Magistrate.  Therefore, the extra judicial confession before a Village
Administrative Officer, becomes  admissible.    It was also heldin that case,
that the post of a Village Magistrate is not in existence and the Village
Headman is not a Village Magistrate, and unless it is under inducement, threat
or promise and when it is voluntary; it is admissible.It was further held inState of Rajasthan vs.  Rajaramreported in (2003(8) SCC 180),  that an extra
judicial confession, if voluntary and  true and made in a fit state of mind, can
be relied upon by the court; the confession will have to be proved like any
other fact;  the value of the evidence as to confession, like any other
evidence, depends upon the veracity of the witness to whom it has been made;
the value of the evidence as to the  confession depends on the reliability of
the witness who gives the evidence;  it is not open to any court to start with a
presumption that extra-judicial confession is a weak type of evidence.13. But, it was held inParmananda Pegu vs. State of Assamreported in
(2004 SCC (Cri.) 2081), that eventhough the confession was made voluntarily and
without threat and inducement, and that it may raise a presumptive evidence
about its truthfulness, when it was retracted  by the accused and received no
corroboration by any other evidence and especially when it contradicted the
medical evidence, then it is unsafe to convict the accused solely on the basis
of retracted confession.14. However, we have already found that at the time when the extra
judicial confession was claimed to have been recorded by P.W.13, he was found
available at some other distant place at Vathrayiruppu as spoken to by the Co-
Village Administrative Officer of another village namely P.W.15.  Therefore, we
have found that in the  absence of any evidence of exclusion, the presumption
although rebuttable is that it is the handiwork of the police officer; which
ofcourse was suggested to him and he denied.  Then such a statement would be hit
under Section 162 Cr.P.C.15. Similar occasion arose inKali Ram v. State of Himachal Pradesh((1973) 2 SCC 808), which was referred to inArumugam vs. State by Inspector of
Police(2004 MLJ(Cri.) 610).  In that case, a letter containing  narration of
facts relating to the crime addressed to a police officer during the course of
investigation was sought to be relied upon to prove the guilt of the accused,
where it seems he confessed the crime.  The letter was not obtained by the
police whereas it seems it was addressed from elsewhere to police officer, but
during the course of investigation, the Apex Court considering the effect ofSection 162Cr.P.C laid down the law, which reads thus:"The prohibition contained inSec.162relates to all statements made
during 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 statement for
the purpose ofSec.162, Crl.P.C.  The prohibition relating to the use of
statement made to police officer during the course of an investigation cannot be
set at naught by the police officer not himself recording the statement of a
person but having it in the form of communication addressed by 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  inSec.162, the same would be true of a letter containing
narration of facts addressed by person to a police officer during the course of
an investigation. It is not permissible to circumvent the prohibition contained
inSec.162by the investigating officer obtaining a written statement of a
person instead of the investigating officer himself recording that statement."16. This was a case wherein the accused gave a confession to 'S' an
individual who had narrated the same in a letter addressed to the police
officer.  Therefore, it was held that it is not permissible to circumvent
prohibition contained inSec.162Crl.P.C  by the investigating officer obtaining
a written statement of a person instead of the investigating officer himself
recording that statement.  Here also the investigating officer had avoided his
own recording of the confession from the accused and it was factually made to
appear as if the Village Administrative Officer alone recorded the confession.
This conclusion is arrived because P.W.15 falsified the claim of P.W.13(V.A.O)
to have recorded the confession.  Thus, the extra judicial confession looses its
evidentiary value.17. The only other piece of evidence available are the letters through
Exs.P.1, P.2, P.6, P.8, P.10 and P.11.  Ex.P.1 is the letter written by A.4 to
A.1.  Ex.P.2 is the letter dated 01.11.1994 written by the deceased to P.W.1
wherein it is disclosed that;(i) Accused No.4, father of  accused No.1, was pressing her to sign the
divorce document,(ii) Accused No.4 was making arrangement to get accused No.1 married to
his sister's daughter,(iii) Accused No.1 also, in accordance with the instructions of accused
No.4, did not come to take her and was refusing to see her inspite of message
sent through various persons;(iv) Accused No.1 pressed her to commit suicide; and(v) the deceased got apprehension that her life was in danger at the hands
of accused No.1 or the members of his family.18. Exs.P-6, P-8, P-10 and P-11 are letters of the deceased herself
addressed to accused No.1 in which the strained relationship between her and
accused No.1 was depicted, besides the threat to her life.19. These letters are proved to have been compared with Ex.P.41, the
admitted handwriting.  There was also reasoning sheet attached  by the
handwriting experts.  These letters would indicate that there was apprehension
in the minds of the deceased that accused No.1 and 4 will play dangerous role in
her life and that they intended to solemnise the marriage between accused No.1
and his sister's daughter.20. The learned counsel Mr.A.padmanaban submitted that it is not enough
for the statements in the above letters to get admissible underSection 32(1)of
the Evidence Act, that they indicate the ill-will of the accused upon the
deceased or the latter's apprehension of accused on the ground of her
anticipation of some danger to her life at the hands of accused and that
something more should have been revealed in the letters of accused to equate it
with cause of death.  In other words, it was submitted that if any of the
contends of letters of accused had direct proximity with death of deceased, they
may become admissible underSection 32(1)of the Evidence Act.  It was further
submitted that generating suspicion in the mind of deceased is not a ground to
make the letters admissible in evidence.21.In this connection, the learned counsel relied upon the following
observation of the Privy Council made in a case law reported inPakala Narayana
Swami vs.  The King Emperor(1939 MLJ 756):-"Statement by the  deceased that he was proceeding to the spot where he
was in fact killed, or as to his  reasons for so proceeding, or that he was
going to meet a particular person, or that he had been invited by such a person
to meet him, would each of them be circumstances of the transaction, and would
be so whether  the person was unknown or was not the person accused.  The phrase
"circumstances of the transaction" is not as broad as "circumstantial evidence"which includes evidence of all relevant facts, but it is narrower than 'res
gesiae'.  The  circumstances must have some proximate relation to the actual
occurrence.  The circumstances, again, should be of the transaction which
resulted in the death of the declarant.  It is not necessary that there should
be a known transaction other than that the death of the declarant has ultimately
been caused, for the condition of the admissibility of the evidence is that "the
cause of the declarant's death comes into question."22. Thus it was held that the words ofSection 32(1)of the Evidence Act
do not mean that the statement must be made after the transaction had taken
place or that the person making it must be near death or that the circumstances
can only include the acts done, when and where the death was caused.  The
statement may be made even before the cause of death had arisen or before the
deceased had anticipated  the act of killing her.  But, it will not include
general expressions indicating fear or suspicion and which is not directly
related to the  occasion of death.  The circumstances of the transaction should
directly relate to the occasion of death.  Suppose the deceased had made a
statement about the device and also plan for being killed, then it may go to
show that it has direct relation with the occasion of death and it was a
circumstance of the transaction.  But in the letters on hand before us which
were shown to have been written around September, 1994 long back to the
occurrence which had taken place in April 1995,  no device or plan of killing
the deceased was contemplated by accused or any circumstance indicating such
plan was ever expressed by them in such letters.  Therefore, those letters may
not be held as indicating  the circumstances of the transaction as spoken to
underSection 32(1)of the Indian Evidence Act. For the foregoing reasons, those
letters cannot be legally relied upon by the prosecution.  It may  at the worse
indicate the suspicion that the deceased had developed against Accused Nos.1 and4.  Suspicion may not take the place of proof.  Thus, the extra judicial
confession and the letters of the deceased relied on by the prosecution are of
no help to it.23. That apart, the only other circumstances that is available against the
A.1 is that he had absented himself from 3rd April, 1995 reported sick on
06.04.1995 and never turned up for duty from 07.04.1995 as was spoken to by
P.W.2, the Station Master, Sivakasi Railway Station, where A.1 was employed.
The fact that A.1 was on leave on 3rd and 4th  April, 1995 may form only the
basis in order to probablise the last seen theory to be substantiated by the
other materials.  Apart from forming a basis for other materials, the act of
applying of leave by A.1 on 3rd and 4th April, 1995 may not by itself go to
prove the offence against him.  There would be an explanation forthcoming from
him that accused could not find his wife as she was missing and as he had lodged
a complaint under Ex.P.29.  In that regard, on 06.04.1995 itself, he was
searching her and so was no able to attend the job.  It is but natural that the
husband of missing lady would not be in a state of mind to attend the office.
But, that element alone will not establish that he was the main cause for the
missing.24. Again the circumstance that it was proved that Ex.P.3, telegram  was
issued by A.1 to P.W.1 on 06.04.1995, as if she was called by the deceased
immediately may go adverse to the accused only if the handwriting expert was
subjected to cross-examination.  Without giving that opportunity, no adverse
fact can be  arrived at against the accused.25. Thus, all the circumstances enunciated by the prosecution were shown
for the reasons mentioned supra as not forming a chain and that too a continuous
chain in order to arrive at an unimpeachable and solid conclusion that A.1 only
has committed the offence.  The conviction and sentence imposed on A.1 are
unsustainable in the eye of law.26. For the foregoing reasons, the criminal appeal is allowed. the
conviction and sentence imposed on A.1  is set aside.  The acquittal of
remaining  accused is upheld.  A.1 is directed to be released forthwith, unless
his custody is required in any other case.  The bail bond executed by A.1 shall
stand cancelled. Consequently, Crl.R.C.615 of  1997 is dismissed.1.The Principal District and Sessions Judge,
  Virudhunagar District at Srivilliputtur.2.The Inspector of Police,
  Watrap, Koomapatti Police Station,
  Virudhunagar District.3.The Public Prosecutor,
  Madurai Bench of Madras High Court,
  Madurai.