Kalam @ Abdul Kalam vs The Inspector of Police

S. Nagamuthu, J.—The Appellant is the 1st Accused in S.C. No. 91 of 2002 on the file of the Additional Sessions Judge, Fast Track Court

No. III, Poonamallee, Chengalpattu District. There were altogether two accused in the case. The 2nd Accused has been acquitted by the trial

court. The Appellant has been convicted for offence u/s 304 (ii) of IPC and Section 201 r/w 34 of IPC and sentenced to undergo R.I. for 5 years

for the offence u/s 304 (ii) of IPC and to undergo R.I. for 1 year for the offence u/s 201 r/w 34 of IPC by the judgment dated 26.08.2003. Both

the sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the Appellant is before this Court with this

criminal appeal.

The facts of the prosecution case in brief is as follows:

The deceased in this case was one Nabisha @ Asha. The Appellant/A1 had developed intimacy with her. But, he doubted her conduct. Therefore,

according to the prosecution, he wanted to do away with her. P.W.10 claims to be an eye witness to the occurrence. According to her, on the

date of occurrence, she and P.W.9 along with their friends were sitting at Palavanthangal Railway Station. The deceased Nabisha came there some

time late. These two accused also came there thereafter. At that time, P.W.10 and one Geetha had gone to the nearby hotel for buying food.

When they returned, they found the deceased Nabisha lying on the platform and froth was coming from her mouth. They also found the deceased

omitting. The body temperature of the deceased was on the higher side. While she omitted some tablets also came out. The 1st Accused told them

that Nabisha was not alright and she was unwell. But, Geetha told her that Kalam attacked Nabisha on her chest. P.W.15 Geetha has stated that

1st Accused fisted the deceased on her chest. She would further state that since Nabisha became unconscious, they all took her along with the 1st

accused to Puzhidhivakkam to an semi constructed building. Then P.W.15, P.W.9, P.W.10 and the 2nd Accused took Nabisha to the said

incomplete building. There, all of them sprinkled water on her face. They found Nabisha alive. All the four stayed in the same building. At about

4.00 a.m. the accused put Nabisha in a bathroom of the house and thereafter all of them fled away from the scene of occurrence.

On 16.08.2001, P.W.2 was at his house which is nearby the said incomplete building. He felt some foul smell. He informed P.W.1 who

happened to be his friend. P.W.1 went to the house of P.W.2 and thereafter, after ascertaining that the foul smell was emanating from the semi

constructed building, P.W.1 preferred a complaint to the police. On receiving the complaint, the police rushed to the spot, where they found the

body of deceased in a highly decomposed condition. At that time, identity of the deceased could not be made out by P.W.1 and P.W.2. The

police took up the investigation and proceeded to the place of occurrence. Since the bathroom of the house could not be opened, P.W.4 was

directed by the police to open the bathroom where they found the dead body. An observation mahazar was prepared for the same in the presence

of P.W.4 and a saree found on the body of the deceased was also recovered. The dead body was taken to Royapettah Government Hospital and

kept in the mortuary. Thereafter, on information by the investigating officer, P.W.5, the grand father of the deceased Nabisha came to the police

station where from he was taken to Royapettah Government Hospital. On 16.08.2001 at about 10.00 p.m. He identified the body as that of

Nabisha. P.W.6 is the son of P.W.5. He also identified the body at Royapettah Government Hospital. P.W.7 is the Judicial Magistrate, who

recorded the statements of witnesses Sathya and Geetha u/s 164 of Code of Criminal Procedure On completing the inquest by P.W.17 at

Royapettah Government Hospital, the body was forwarded for post-mortem. P.W.12 Doctor conducted autopsy. Ex.P.7 is the Post-mortem

Certificate. He found that the body was in a highly decomposed condition. The findings and opinion of P.W.12 Doctor are as follows:

partly skeletonised, highly decomposed, moderately nourished female body with plenty of maggots. Hair could be easily plucked off. Eye balls

were not found and maggots were coming out of orbital sockets. Nose was not found. Post mortem loosening of some of the teeth seen. Post

mortem disarticulation of right hand fingers at the level of meta carpo phalangeal joints, left shoulder joint, right ankle joint and left foot toes at the

level of meta tarsophalangeal joints. Post mortem disarticulation of cervical vertebra between C4 and C5, temporo mandibular joints,

sternochondral junction and most of the costo vertebral joints.

Most of the internal organs were highly decomposed liquified and not found.

Intermittent bruised areas with variegated colours seen over the scalp and ectocranial surface of the vault of the skull on both sides. Fissured

fracture of the right parietal bone extending from the middle of right coronal suture to the middle of right parieto temporal sutures measuring 5.5

cms long. The fracture margins showed evidence of bruising. All sutures were intact and not fused. The brain was not found. The skull cavity

empty.

Length of the right humerus measured 28 cms in length. So by applying the multiplication factor the stature of the individual was about 149 cms.

He opined that the deceased would have died of head injuries and the death would have happened 5 to 10 days prior to the post mortem.

The accused surrendered before the learned XIII Metropolitan Magistrate on 17.08.2001. On 29.08.2001, P.W.17 took up police custody on

the orders of the learned Magistrate. He requested the Tahsildar (P.W.13) to come over to Madipakkam Police Station in order to be a witness to

the confessions to be given by the accused. Accordingly, in the presence of P.W.17, the Inspector of Police and P.W.13, the Tahsildar, the 1st

Accused (Appellant herein) and the other accused gave confessions. The said confessions were all video graphed. Apart from that, the confessions

were also recorded in writing, in which, P.W.13 signed as a witness. On completing the investigation, P.W.17 laid the final report against the

Appellant herein and another for offences under Sections 201 and 302 r/w 34 of IPC.

Based on above materials, the trial court framed charges under Sections 302 of IPC against the 1st Accused alone and for offence u/s 201 r/w

34 of IPC as against both 1st Accused and 2nd Accused. The accused denied the charges. They were put on trial. During trial, on the side of the

prosecution, as many as 17 witnesses were examined, 28 documents were exhibited and 7 material objects were marked. When the incriminating

materials were put to the accused, they denied the same. They examined one Ms. Selvi as D.W.1. However, no document was exhibited on their

side. Having considered all the above materials, the trial court found the Appellant/A1 alone guilty and accordingly convicted him. That is how, the

Appellant is now before this Court with this criminal appeal.

I have heard Mr. J.R. Prabhakaran, the learned Counsel appearing for the Appellant / A1 and Mr. R. Muniyapparaj, learned Government

Advocate (Criminal Side) for the State and also perused the records carefully.

The learned Counsel for the Appellant would point out that the evidence of P.W.15 Geetha cannot be relied on for any purpose. According to

him, the conduct of P.W.15 as spoken to by her would itself go to show that she is not a believable witness. He would further submit that the

evidences of P.W.9 and P.W.10 also of the same character. Therefore, their evidences also cannot be believed.

The learned Counsel for the Appellant would further submit that apart from the above, the prosecution relies on the confession said to have

given by the accused which were video graphed in the presence of P.W.13, the Tahsildar and P.W.17, the Inspector of Police. The learned

Counsel would submit that these confessions are not admissible in evidence in any manner since there was no discovery of fact made out of the

same. The learned Counsel would further submit that the medical evidence also does not support the case of the prosecution.

The learned Government Advocate (Criminal Side) would, however, refute all the above grounds. According to him, the evidence of P.W.15 is

believable as she happens to be an eye-witness. The evidences of P.W.9 and P.W.10 duly corroborate the evidence of P.W.15. He would submit

that the presence of the deceased in the company of the accused was lastly witnessed by P.W.9 and P.W.10 and that P.W.15 had seen the

accused beating the deceased on her chest. He would further submit that because of the fall on the platform, the deceased sustained head injuries

and due to the injuries, she died as opined by the Doctor. Therefore, according to the learned Government Advocate, the prosecution has proved

the case and, therefore, the findings of the trial court does not require any interference at the hands of this Court.

I have carefully considered the above rival submissions.

At the out set, I have to state that the so-called confession said to have been given by the 1st accused to the police in the presence of P.W.13,

the Tahsildar is not admissible in evidence in view of the clear bar contained in Section 25 of the Evidence Act. Admittedly, at the time when the

confession was allegedly made in the Police Station A1 was in the police custody. Therefore, u/s 26 of the Evidence Act, if the same has been

recorded by a Judicial Magistrate, certainly, the same would be admissible. But, the same was recorded by an Executive Magistrate. Here, the

term ""Magistrate"" referred to in Section 26 of the Evidence Act does not refer to the Executive Magistrate in view of Section 3(3) of the Code of

Criminal Procedure. Section 26 of the Evidence Act and Section 3(3) of the Code of Criminal Procedure read as follows:

Section 26 of the Evidence Act, 1872

Confession by accused while in custody of police not to be proved against him.-No confession made by any person whilst he is in the custody

of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

(Explanation.-In this section ""Magistrate"" does not include the head of a village discharging magisterial functions in the Presidency of Fort St.

George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure.)

Section 3(3) of the Code of Criminal Procedure, 1973

Construction of references.

(1) In this code,

(a) ....

(b) ....

(c) ....

(d) ....

(2) ....

(3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this code,

(a) To a magistrate of the first class, shall be construed as reference to a judicial Magistrate of the first class;

(b) To a magistrate of the second class or of the third class, shall be construed as a reference to a judicial Magistrate of the second class;

(c) To a presidency Magistrate or chief presidency magistrate, shall be construed as a reference respectively, to a metropolitan magistrate or the

chief metropolitan magistrate;

(d) To any area, which is included in a metropolitan area, as a reference to such metropolitan area, and any reference to a magistrate of the first

class or of the second class in relation to such area, shall be construed as reference to the metropolitan magistrate-exercising jurisdiction in such

area.

Admittedly, the Evidence Act was enacted before the commencement of the Code of Criminal Procedure, 1973 and, therefore, as per the

above provision, the term ""Magistrate"" as referred to in Section 26 of the Evidence Act will mean only a Judicial Magistrate. Therefore, the

confession either video graphed or recorded by the police in the presence of P.W.13, the Executive Magistrate will be hit by Sections 25 and 26

of the Evidence Act. Thus, the confessions said to have given by the accused to the police in the presence of P.W.13, the Executive Magistrate is

not admissible in evidence as the same does not fall u/s 27 of the Evidence Act as well.

Now, coming to the evidences of P.W.9, P.W.10 and P.W.15, the narration of the facts would go to show that they are not innocents but,

accomplices. They have stated that they were together along with the accused and the deceased Nabisha at Palavanthangal Railway Station for

some time and after the accused had fisted the deceased on her chest, they accompanied the accused to take the deceased while she was

unconscious to a distant place and even after knowing that she was alive they allowed her to die and then they left the body in a bathroom in the

semi constructed building. They did not inform the same to the police or even to the relatives of the deceased. This conduct of P.W.9, P.W.10 and

P.W.15 would go to show that they are only accomplices. Though they were not arrayed as accused and also as approvers, still they are only

accomplices in legal sense. For this I may refer to a judgment of the Hon''ble Supreme Court in Laxmipat Choraria and Others Vs. State of

Maharashtra, wherein it has been held as follows:

On the side of the State many cases were cited from the High Courts in India in which the examination of one of the suspects as a witness was

not held to be illegal and accomplice evidence was received subject to safeguards as admissible evidence in the case. In those cases, Section 342

of the Code and Section 5 of the Indian Oaths Act were considered and the word ''accused'' as used in those sections was held to denote a

person actually on trial before a court and not a person who could have been so tried. The witness was, of course, treated as an accomplice. The

evidence of such an accomplice was received with necessary caution in those cases. These cases have all been mentioned in In Re: Kandaswami

Gounder, , and it is not necessary to refer to them in detail here. The leading cases are: Queen Empress v. Mona Puna ILR (1892) 16 Bom 661:

Banu Singh v. Emperor ILR (1906) 33 Cal 1353; Keshav Vasudeo v. Emperor ILR 59 Bom 355 : AIR 1935 Bom 186; Empress v. Durant

ILR(1899) 23 Bom 213; Ashok Kumar Mookerjee v. Emperor ILR 45 Cal 720 : AIR 1919 Cal 1021; A.V. Joseph v. Emperor ILR 3 Rang 11 :

AIR 1925 Rang 122; AIR 1937 17 (Nagpur); Gallagher and Another Vs. Emperor, ; and Emperor Vs. Har Prasad Bhargava, . In these cases

(and several others cited and, relied upon in them) it has been consistently held that the evidence of an accomplice may be read although he could

have been tried jointly with the accused. In some of these cases the evidence was received although the procedure of Section 337, Code of

Criminal Procedure was applicable but was not followed. It is not necessary to deal with this question any further because the consensus of opinion

in India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was

instead made to give evidence in the case. Section 5 of the Indian Oaths Act and Section 342 of the Code of Criminal Procedure do not stand in

the way of such a procedure.

In view of the above settled position of law there can be no difficulty to conclude that P.W.9, P.W.10 and P.W.15 are only accomplices.

u/s 114(b) of the Evidence Act, the evidences of accomplices are always untrustworthy unless they are corroborated in material particulars. u/s

133 of the Evidence Act, though it is not illegal to convict an accused on the basis of an uncorroborated testimony of an accomplice, still a conjoint

reading of the two provisions namely Sections 114(b) and 133 of the Evidence Act would go to show that without corroboration in material

particulars, it is difficult to base conviction solely on the basis of the tainted evidences of accomplices unless the court finds that their evidences

inspire the confidence of the court and that it will not be unsafe to convict on the basis of the same. In this regard, I may refer to a judgment of the

Hon''ble Supreme court in Bhiva Doulu Patil Vs. State of Maharashtra, wherein the Hon''ble Supreme Court in paragraph 9 has held as follows:

The combined effect of Sections 133 and 114, illustration (b) may be stated as follows: According to the former, which is a rule of law, an

accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his

testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will,

as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. The law may be stated in the words

of Lord Reading C.J. in R. v. Baskerville 1962 2 KB 658 as follows:

There is no doubt that the uncorroborated evidence of an accomplice is admissible in law (R. v. James Attwood (1787) 1 Leach 464. But it has

been long a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony

of an accomplice, and in the discretion of the Judge, to advise them not to convict upon such evidence, but the judge should point out to the jury

that it is within their legal province to convict upon such unconfirmed evidence (R. v. Stubbs (1855) Dears C C 555; In Re: Meunier 1894 2 Q.B.

415

We, therefore, allow this appeal, set aside the order of conviction and direct that the Appellant be released forthwith.

Applying the above settled principle of law to the facts of the present case, if the evidences of P.W.9, P.W.10 and P.W.15 are analysed, they

are not corroborated in any material particulars by any other source. As a matter of fact, the medical evidence contradict their evidences. There is

no sign of any injury on the chest of the deceased. Further, the evidence of Doctor also does not go to prove the time of death. Apart from all

these things, these witnesses, as I have already stated, are untrustworthy which is so evident from their conduct. Above all, the tainted testimony of

one accomplice cannot draw corroboration from the tainted testimony of another accomplice.

In view of all the above, I am of the firm opinion, that it is not safe to convict the Appellant/A1 on the evidences of P. Ws.9, P.W.10 and

P.W.15 alone. Thus, I hold that the prosecution has failed to prove the case beyond any reasonable doubt and, therefore, the Appellant/A1 is

entitled for acquittal.

In the result, the criminal appeal is allowed; and the conviction and sentence recorded by the trial court against the Appellant/A1 are set aside.

Bail Bond executed by the Appellant shall stand cancelled.