Anil Kumar vs State of Kerala

Joseph Francis, J.—This appeal is filed by the accused in S.C. No. 400 of 2004 on the file of the Additional Sessions Court (Fast Track Court - III), Pathanamthitta. That was a case charge sheeted by the Circle Inspector of Police, Vadasserikkara against the accused under Sections 302 and 201 of I.P.C.

The prosecution case is briefly as follows. The accused had illicit connection with Salamma, the wife of deceased Jose, for about two years and during that period deceased Jose was staying away from his house in connection with his employment in a tea shop and he used to come his house once in a week or once in two months. After two years deceased Jose abandoned his job and started to reside in his house so that the accused could not continue his illicit relationship with Salamma. Due to this, hatred developed in the mind of the accused. Due to this enmity towards Jose, with the intention to murder him, the accused invited him for a drink and took Jose from his house on 23.11.2001 at 7.30 p.m. to the nearby rubber plantation, which was uninhabited. It is alleged that after giving liquor to the deceased, the accused broke the bottle and inflicted stab injuries on various parts of his body and Jose succumbed to the injuries. Thereafter the accused dragged the dead body of Jose and placed it in a pit which was about 25 meters south to the alleged place of occurrence and the accused covered the body with soil by using MO1 iron rod.

On 24.11.2001 at about 8 a.m. the nearby residents found blood in the rubber estate of Ramakrishnan and blood trails from the said rubber estate leading to the pit situated in Ambattu Ravi''s property. Mistaking the blood to be that of wild pig they removed the soil, whereupon the body of deceased Jose was seen by them.

PW1 gave Ext.P1 F.I. statement before the police, on the basis of which, Crime No. 111 of 2001 of Vechoochira Police Station was registered and investigated. After completing the investigation, charge sheet was laid before the J.F.M.C. Ranni, from where it was committed to the Sessions Court, Pathanamthitta. Subsequently the case was made over to the Additional Sessions Court (Fast Track Court - III), Pathanamthitta for trial and disposal.

In that court, on the side of the prosecution, Pws. 1 to 24 were examined, Exts.P1 to 32 were marked and Mos.1 to 14 were identified. On the defence side Ext. D1 was marked. The learned Additional Sessions Judge, on considering the evidence, found that the accused committed murder of deceased Jose and that to destroy the evidence the dead body was concealed in a pit and the accused was convicted and sentenced to undergo imprisonment for life u/s 302 I.P.C. and R.I. for a period of seven years and a fine of Rs. 1,000/-, in default to undergo S.I. for one month for the offence u/s 201 I.P.C. with a direction that the accused to suffer the sentence of imprisonment for seven years for the offence u/s 201 I.P.C. and then to suffer the imprisonment for life for the offence u/s 302 of I.P.C. Against that conviction and sentence the accused filed this appeal.

Heard the Learned Counsel for the appellant and the learned Public Prosecutor.

Learned Counsel for the appellant submitted that the court below was carried away by the nature of allegations and thereby erred in appreciating the evidence in its correct legal perspective and that the court below thereby entered into a moral conviction, which is illegal and unsustainable. The Learned Counsel for the appellant further submitted that the court below ought to have found that the case is solely based on circumstantial evidence and therefore conviction of the accused cannot be arrived at unless complete chain of circumstances is produced without any missing link.

The Learned Counsel for the appellant submitted that the court below ought to have found that the prosecution miserably failed to prove the motive for the crime. The Learned Counsel further submitted that the court below ought to have found that the statement recorded u/s 164 Cr.P.C. is not a substantive evidence.

The Learned Counsel for the appellant submitted that the court below had treated the statement of Pws. 2 and 8 recorded u/s 164 Cr.P.C. as substantive evidence and committed an error in treating the statements of Pws. 2 and 8 recorded u/s 164 Cr.P.C. as their evidence in court. Learned Counsel for the appellant submitted that the court below ought to have found that the recovery of MO2 lungi will not be having much importance, especially when there is no convincing evidence to prove that MO2 lungi belongs to deceased Jose. The learned Public Prosecutor supported the judgment of the court below.

As already stated, there is no eye witness to the actual occurrence and the prosecution case mainly depends upon the circumstantial evidence. In the decision reported in State of Kerala Vs. Hariharan, , it is stated that:

In the absence of direct evidence for connecting the accused, the chain of circumstances must be so complete without any missing link or reasonable doubt. In order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave cannot take the place of proof.

But in the present case, the prosecution witnesses, including the wife and daughter of deceased Jose, who were examined to prove those incriminating circumstances, turned hostile.

PW1 - Jose George, who gave Ext.P1 F.I. Statement, is a neighbour of Ambattu Ravi. PW1 deposed that on 24.11.2001 at about 8 a.m. while he was going for his work, he found blood in the rubber plantation of Ramakrishnan Nair, America. One Jiju called him to the place, where blood was found and he along with Kuzhivel Jose, Elavunkal Kunjucherukkan and Kuttikkadu Philip went to the said place. Believing that it was the blood of pig, they searched for the pig and during search, they found a pit covered with stones, soil and waste in the property of Ambattu Ravi. PW1 removed a portion of the soil and found a human hand. He informed the matter to the Vechoochira police station. The Sub Inspector came to the place and unearthened the dead body, which is identified to be that of Jose and PW1 gave Ext.P1 - F.I. statement.

PW2 - Salamma is the wife of deceased Jose, who was declared hostile as she did not support the prosecution case at the time of examination before the Additional Sessions Court. PW2 deposed that her husband was stabbed to death, but she pleaded ignorance about the actual occurrence. She deposed that Jose was killed on 23.11.2001. Her evidence would show that Jose was in her house till 6 p.m. and thereafter he went to the junction and after that he did not return to the house. On the next day at about 8 a.m, she heard that a dead body was seen in a pit in the property in front of the house of Ambattu Ravi and her daughter PW17 identified the dead body as that of her father Jose.

According to PW2, she saw the dead body at 4 p.m. after the dead body was taken out from the pit by the police and she later learned that Jose was stabbed with a bottle. Her evidence would further show that accused was the tapper of her property for the past 9 years and he is residing adjacent to her house. She stated that her husband and the accused were in cordial relationship. Jose was employed in a hotel at Cherukolpuzha and he used to come to his house once in a week or once in two months and after that he was permanently residing in Cherukolpuzha for the last 4 years. When cross examined by the Public Prosecutor, PW2 admitted that she gave Ext.P17 statement before the Magistrate u/s 164 Cr.P.C. and that she gave that statement due to compulsion from the police.

PW2 deposed that in Ext.P17 statement she had stated before the Magistrate that accused had stabbed Jose to death and it was disclosed by the accused that on 23.11.2001 in the evening Jose was in her house. His parents and her children were also there. She stated to the Magistrate that while she was in the kitchen the accused came in the premises of the kitchen and called Jose. Her daughter informed Jose that Anil (accused) had called him and Jose went out through the kitchen with Anil. She further stated that the accused returned and told her that he killed Jose. She could not believe that and she again asked him whether he killed him and he told that he killed Jose. She asked him what he did thereafter, the accused told her that his dead body was lying in the rubber plantation situated adjacent to her house.

While she was lying in bed, the accused came there and asked her to accompany him to dispose of the dead body and when she refused his request he told her that he would dispose of the dead body near her house. She told him that she would not allow the same. Then the accused requested her to give the lamp to him and she gave the lamp and the accused left the place with the lamp. She also admitted that she had given the statement that her husband heard from others that herself and the accused were in intimacy with each other and she had given statement before the Magistrate that accused told her that he would kill Jose. Though PW2 admitted that she gave Ext.P17 statement before the Magistrate, she did not say that what is stated by her before the Magistrate is true. While examined before the Additional Sessions Court, PW2 did not repeat the statements given by her before the Magistrate.

PW8 is a Carpenter by profession, who is examined for the purpose of proving the alleged extra judicial confession made by the accused. But PW8 turned hostile when he was examined before the Additional Sessions Court. PW8 deposed that he does not know anything about the occurrence and that he had not gone to the house of the deceased on 23.11.2001. When cross examined by the Public Prosecutor, he admitted that he had given a statement before the Magistrate which is recorded u/s 164 Cr.P.C. In that statement PW8 has stated that when he went to the house of Jose for carpentry work he made enquiry about Jose to his wife and she informed that the accused called him out and thereafter Jose did not return to the house. She requested the witness to make enquiry about Jose. The witness took torch from the mother of Jose and went out to the back of the house of Jose for searching Jose and at that time the accused called him near to him and he saw blood on his body in the light of the torch.

In that statement PW8 has stated that the accused requested him to assist him in disposing the dead body of Jose. He also stated that on 23.11.2001 at about 1.30 in the night accused Anil came to his house and called him twice and his wife told the accused that he did not return after his work. But before the Additional Sessions Court PW8 did not depose what is stated by him before the Magistrate is true fact. PW8 deposed that he made such statement before the Magistrate due to the intervention of the police.

PW14 was the Asst. Surgeon attached to Primary Health Centre, Vechoochira. He examined accused on 26.11.2001. PW14 noted the following injuries on his body.

(i) Incised wound on th face of right index finger on the front outer aspect 1 cm x 0.5 cm in size covered with honey coloured crust.

(2) lacerated wound 1.5 cm long on the base of nail of left thumb.

Ext.P2 is the wound certificate issued by him. PW14 deposed that the injuries can be caused by handling a broken glass bottle. He stated that injuries were about two days old. In cross examination, he stated that sharp object also can cause lacerated incised wound in certain parts of the body, which is called apparent incised wound. He could not rule out that lacerated wound can be caused by hard and rough object. According to him, a worker during his work when come in to contact with hard and rough object can sustain that injury.

PW15 was the Professor of Forensic Medicine and police Surgeon, Medical college, Kottayam. He conducted postmortem examination on the body of Jose on 25.11.2001 at 1.30 p.m. and issued Ext.P13 postmortem certificate. In the postmortem certificate he noted the following injuries:

1) Incised wound 4 x 0.8 x 1 cm horizontal on the left side of upper lip, inner end in mid line

2) Incised wound 1.5 x 0.7 x 0.5 cm on the right side of face just outer to angle of mouth.

3) Incised wound 6 x 0.6 cm horizontal on the middle of back of neck 5 cm above the root of neck

4) Incised wound 7 x 0.3 cm x 0.2 cm on the middle of root of neck at the back

5) Incised wound 3.5 x 0.7 x 0.5 cm horizontal on right side of back of root of neck 4.5 cm outer to mid line

6) Incised wound 5 x 1.3 x 4 cm on the right side of neck lower front end being 9 cm below right ear lobule with internal jugular vein and common carotid artery underneath found clearly cut.

7) Incised wound 3.5 cm x 1.5 x 0.5 cm on the outer aspect of right shoulder

8) Incised wound 2 x 0.7 x 0.3 cm on the front of right shoulder

9) multiple linear abrasions over an area 6 x 2 cm on right side of front of chest. 6.3 cm outer to mid line and 1 cm below collar bone

10) Incised wound 3.5 x 1.5 x 1.5 cm on right side of front of chest, lower inner end 6 cm outer to mid lien and 8 cm below collar bone

11) incised wound 3 x 1.4 x 1 cm on right side of front of abdomen lower outer end 3 cm outer ambilicus

12) Incised wound 5 x 0.3 x 0.3 cm on the back of right forearm 3 cm below elbow

13) incised wound 2 x 1 cm x 0.5 cm on the back of left wrist.

14) curved incised wound 11 x 1 x 4.5 cm with convexity upwards on the back of trunk on the right shoulder blade 4.5 cm outer to mid line, 5 pieces of glass were found embedded in the wound

15) Incised wound 2.5 x 0.5 x 0.3 cm over right shoulder blade 2 cm below injury No. 14

16) Incised wound 1.8 x 1.5 x 0.5 cm over right shoulder blade 3.5 cm below injury No. 15

As per the evidence of PW15, five glass pieces recovered from the wound were handed over to the police constable after postmortem examination. He identified the said glass pieces, which were sealed and marked as MO4 series. The label on the bottle contains his signature. His evidence would show that injury No. 6, incised wound 5 x 1.3 x 4 cm on the right side of neck lower front end being 9 cm below right ear lobule with internal jugular vein and common carotid artery underneath found clearly cut, was sufficient in the ordinary course to cause death. According to him, injury No. 9, i.e., multiple linear abrasions over an area 6 x 2 cm on right side of front of chest 6.3 cm outer to midline and 1 cm below collar bone, can be caused while dragging through the ground. He deposed that all the injuries, except injury No. 9, can be caused by stabbing with a broken glass bottle in irregular shape.

According to him, the death might have been caused within six hours after taking his last meal. He stated that the injuries except injury No. 9 can be caused by stabbing with the broken glass bottle produced in court. The broken neck portion of the bottle from MO11 series was shown to him. In cross examination, he stated that the injuries and the width of the blade portion of the weapon have no co- relation. He stated that the suggestion that length of the wound cannot be much less than the width of the blade portion of the weapon is not correct.

According to him, even a small blade can cause such injuries and the injuries in Ext.P13 are possible during stabbing process. His evidence wound show that the possibility of more than one assailant cannot be ruled out. According to him, from the injuries, using of knife in all the injuries is not possible since there are glass pieces in injury No. 14, and that if the glass bottle is wielded the possibility of embedding of glass pieces in the wound is higher. His evidence would show that sharp cutting weapons, including glass pieces, can cause incised injuries and the injuries can be caused from front, back or sides. He stated that it is not necessary that broken neck of bottle marked in this case should cause irregular injuries. He categorically stated that glass pieces recovered from injury No. 14 were entrusted by him in sealed bottle to the police and it contained label. He identified his signature on the bottle. His evidence would show that he handed over the glass pieces in the sealed bottle immediately after postmortem examination and he affixed his signature thereon which is still intact.

In the top portion the date is noted as 25.11.2001 and mistakenly he put the date of the bottom under the signature as 23.11.2001 and it is only a mistake. According to him, since all the material objects collected from the dead body were handed over to the police constable only after sealing and labelling it was not mentioned in the postmortem certificate that glass pieces were packed and sealed in bottle. There is no reason for manipulation of the sealed bottle containing glass pieces since seal and label and signature of witness were found on the same.

PW17 is the daughter of deceased Jose and PW2. PW17 turned hostile. She deposed that on 23.11.2001 when she returned from her school, her father Jose was in the house. She deposed that she does not know whether Jose was in the house in that night. PW17 stated that PW8 had not come to the house for doing carpentry work. PW17 stated that she has not stated to the police that the accused came to the house at 7.30 p.m. and called Jose and Jose went out along with the accused.

PW18 was the Judicial First Class Magistrate, Pathanamthitta, who recorded Section 164 Cr.P.C. statements of Pws. 2 and 8 after complying with the necessary formalities.

PW12 is a neighbour to the house of accused and the deceased. He deposed that Circle Inspector of Vadasserikkara recovered a cover containing blood stained lungi from the back side of the house of deceased. He identified MO2 as the lungi recovered from the back side of the house of the deceased as per Ext.P11. His evidence would show that lungi was blood stained and muddy and that MO2 lungi was recovered in the presence of PW2, the wife of deceased Jose and his daughter. The plastic cover in which the lungi was placed was identified by him and marked as MO3. His evidence would show that MO2 and 3 were recovered from the place shown by accused. According to him, it was got identified by PW2 the wife and daughter of deceased Jose. PW12 did not depose that MO2 lunki belonged to deceased Jose.

PW13 is the sister of deceased Jose. According to her, she used to visit his brother''s house in Vechoochira occasionally. She stated that she had seen the accused when she visited the house of Jose and the accused was the rubber tapper of Jose. Her evidence would show that her husband visited the house of Jose two days before the death of Jose. She was cited to prove the motive for the murder of Jose by the accused. She stated that the accused used to come to the house of Jose for rubber tapping and the visit of the accused was disliked by deceased Jose and Jose used to tell her and her husband about the same and Jose told her husband to warn the accused that he should not come to his house. Her husband disclosed the same to the wife of Jose and told her that she must tell the accused not to come to the house of Jose. Thereafter her parents were in the hospital and deceased Jose abandoned the hotel employment and started residing with her parents for one month. Since there was illicit intimacy with Salamma and the accused deceased Jose told the accused not to come to his house and due to the said animosity the accused murdered him.

PW23 was the Circle Inspector of Police, Vadasserikkara, who conducted the investigation. PW23 deposed that he arrested the accused on 26.11.2001 at 6 a.m. from Kunnam Junction and on questioning the accused he gave a confession statement, which led to the recovery of the lungi of deceased Jose kept in a plastic cover from the property on the back side of the house of deceased Jose. MO2 is the lungi and MO3 is the plastic cover. MO2 lungi alleged to have been worn by Jose at the time of occurrence was shown to Pws. 2 and 17, but they did not depose that the lungi belonged to deceased Jose.

On going through the judgment of the court below, it is seen that the learned Additional Sessions Judge relied on the Section 164 Cr.P.C. statement given by Pws. 2 and 8, which was recorded by PW18 Magistrate. But as already mentioned, Pws. 2 and 8 did not state before the Additional Sessions Court that what is stated by them before the Magistrate is the true version of the occurrence and they did not repeat the statements given by them before the Magistrate.

In the decision reported in Ram Kishan Singh Vs. Harmit Kaur and Another, it was held that a statement u/s 164 Cr.P.C. is not substantive evidence. It can be used to corroborate a statement of a witness and can be used to contradict a witness.

In the decision reported in Ram Charan and Others Vs. State of U.P., , it was held that:

If a statement of a witness is previously recorded u/s 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded u/s 164 will not be sufficient to discard it. The court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon.

In dealing with an extra judicial confession it should be remembered that it is quite easy for a witness to fabricate wholly or in part a confession statement and it is very difficult to expose the falsity. Though by itself it is a weak piece of evidence it can be taken into consideration along with other evidence.

In the present case, Pws. 2 and 8 did not support the prosecution case before the trial court and therefore their statement u/s 164 Cr.P.C. cannot be used as a substantive piece of evidence. While examined before the trial court, Pws. 2 and 8 did not support their statement earlier recorded u/s 164 Cr.P.C. and that would not be available to the prosecution for corroboration and conviction of the accused cannot be recorded on the basis of statement recorded u/s 164 Cr.P.C. Since MO2 lungi seized on the basis of the alleged confession of the accused is not identified by Pws. 2 and 17 as that of deceased Jose, the recovery of MO2 cannot be relied on.

One of the circumstances relied on by the learned Additional Sessions Judge is the injuries found on the finger of the accused, which are incised wounds and which could be caused with broken neck of a bottle. When questioned u/s 313 Cr.P.C. the accused has explained that those wounds were healed wounds which were caused earlier. The accused is a rubber tapper. PW14, the doctor, has opined that such injury could be caused to the accused while doing his work and coming into contact with hard and rough object. Another incriminating circumstance relied on by the Additional Sessions Judge is the recovery of MO1 iron rod and MO12 lunki of the accused and MO13 shirt of the accused, all blood stained, from the house of the accused at the instance of the accused. MO12 and MO13 were also found to contain ''B'' blood group, i.e., blood group of deceased Jose. But there is no evidence to show that the blood group of accused is not ''B''.

As already mentioned, the prosecution case is based on circumstantial evidence. 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. In the present case, the evidence on record throws serious suspicion about the involvement of the accused in the crime. But that suspicion however strong cannot take the place of poof. On appreciating the evidence on record, we are of the view that the prosecution has not succeeded in proving its case against the accused beyond reasonable doubt and therefore the learned Additional Sessions is not justified in convicting the accused.

Accordingly this appeal is allowed. The conviction and sentence of the appellant/accused in S.C. 400 of 2004 on the file of the Additional Sessions Court, Fast Track Court - III, Pathanamthitta under Sections 302 and 201 I.P.C. are set aside and the accused is found not guilty and he is acquitted and set at liberty. The Registry is directed to issue necessary direction to release the appellant/accused from jail, if his detention is not required in connection with any other case.