Murugan vs State of Kerala

P. Bhavadasan, J.—1. Murukan, accused in this case, was tried for the offence punishable under Section 302 of Indian Penal Code on the allegation that he had caused death of his brother Kannankutty. After trial, he was found guilty of the offence and was therefore convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/- with default clause of imprisonment for one month. Benefit of set off was granted to him provided appropriate Government exercises powers under Sections 432 or 433 Cr.P.C.

The prosecution story runs thus:

"PW1, deceased and accused are brothers. The deceased was staying in the Tharavad house and the accused with his wife and children staying a little distance away. On the date of incident, i.e. on 10.10.2009, while PW1 was standing in front of his house, he happened to see the accused going towards a place called Pothampadam proclaiming that he had done away with Kannan who is deceased."

PW2 is yet another brother of deceased. PW1 would say that no sooner than he saw the accused going away to Pothampadam side, PW2 informed him that the accused had done away with Kannan using a wooden stump. PW1 went to the Tharavad house and when he reached there, he found Kannan, the deceased, lying in the veranda of the house soaked in blood with injuries on his face and head. The weapon used for attack was found nearby. Wasting no time, PW1 went to the Kollengode Police Station and laid Ext. P1 First Information Statement. That was recorded by PW12 Sub Inspector of Police who registered crime as per Ext. P1(a) First Information Report.

PW13 took over investigation. He went to the scene of occurrence first and had made arrangement to guard the body of deceased. Since it was odd hours of the day, he did not conduct inquest on the same day. On 11.10.2009 in the morning, he went to the place of occurrence and prepared Ext. P2 inquest report. Body was then entrusted to PW9 who took the body for autopsy. PW14, Forensic Surgeon conducted autopsy and furnished Ext. P14 postmortem certificate and also had proved Ext. P13 chemical analysis report. In the meanwhile, PW13 had prepared Ext. P3 scene mahazar. He had seized the clothes found on the body of deceased. He had also seized other articles found on the body of deceased and they are M.O.s 4 to 7. He went to the Medical College Hospital, Thrissur and got in touch with the Doctor who had conducted postmortem and had questioned him with reference to the stump he had seized. On 11.10.2009 at about 5 p.m, the accused was located at the place called Meppadam and he was arrested as per Ext. P9 arrest memo. According to the prosecution allegation, the accused was then seen wearing the clothes which he had worn at the time of incident and after making alternate arrangements, those clothes were seized as per Ext. P4 mahazar. The clothes seized were M.O.s 3 and 6. He had the properties collected during investigation sent to court as per Ext. P11 property list and also had forwarded forwarding note to court as evidenced by Ext. P12. The report so received is Ext. P13. He recorded the statement of witnesses, obtained necessary certificate from the local authority showing the ownership of the house where the body was found, completed the investigation and laid charge before court.

The court before which the final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Palakkad under Section 209 Cr.P.C after following necessary procedures. The said court made over the case to Additional Sessions Court, Palakkad for trial and disposal. The latter court, on receipt of records and on appearance of accused, framed charge for the offence under Section 302 IPC against the accused. To the charge read out to him, accused pleaded not guilty and claimed to be tried.

The prosecution therefore had PWs 1 to 15 examined and Exts. P1 to P14 marked. From the side of defence, Ext. D1 was marked. M.O.s 1 to 7 were got identified and marked.

After the close of the prosecution evidence, accused was questioned under Section 313 Cr.P.C regarding the incriminating materials brought out in evidence against him. He denied all the incriminating circumstances and maintained that he is innocent. In addition, he stated that he was aged 52 at the time of incident and he had wife and five children. He is a casual labourer by profession and that his family is dependent on him. He further says that he was working at a place called Nenmeni which is about 20KMs away from his house and on the date of incident, in the morning, his wife had called him and told him that the deceased had pestered her. He claimed that he replied that they will make a complaint before Police. When he and his wife proceeded to the Police Station to file a complaint, to his surprise, he was placed under arrest and his wife left to her house.

Finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. He chose to adduce no evidence.

The court below, greatly impressed and persuaded by the so called extra judicial confession said to have been made by PWs 1, 3 and 6 and so also greatly impressed with the chemical analysis report Ext. P13 and taking aid of the evidence of PW15, wife of accused, came to the conclusion that the above aspects establish beyond reasonable doubt that it was the accused who had committed the offence. Accordingly, he was found guilty and the conviction and sentence as already mentioned followed.

The appeal has been preferred from prison. Sri. A.K. Alex was appointed on State Brief to present the appeal on behalf of the convict. Learned counsel contended that the grounds raised by the prosecution are too brittle and they cannot stand legal scrutiny.

Referring to the extra judicial confession, learned counsel pointed out that apart from the fact that PWs 1, 3 and 6 have not stated the exact word as has been spoken to by the accused, it is also clear that the so called extra judicial confession spoken to by these witnesses were not made to them and they are general statements said to have been made by the accused. Such omnibus statement cannot form basis of extra judicial confession. Apart from the said fact, the inherent inconsistencies and contradictions in the evidence of PWs 1, 3 and 6 have been overlooked by the court below. Learned counsel pointed out that a casual reading of the evidence of PW2 would clearly show that he had only hearsay knowledge about the incident. As far as PW6 is concerned, it was brought out in his cross examination that his case of extra judicial confession does not find a place in his previous statement i.e. statement under Section 161 Cr.P.C to the Police and if that be so, there is clear omission amounting to contradiction impeaching the evidence of that witness in that regard.

Learned counsel then pointed out that the motive is not property established. It is alleged that the deceased has misbehaved to the wife of accused in the morning on the date of incident and that was the cause of the incident. For this, prosecution relies on the evidence of PW15, wife of accused. Apart from making a general statement, she does not make reference to any particular incident on the date of incident and that is insufficient to constitute motive.

In support of his contention that exact words have not been spoken to by PWs 1, 3 and 6, learned counsel relied on the decision in Subhash Chand v. State of Rajasthan (, (2002) 1 SCC 702). According to learned counsel, the disparity in the blood group determined from the forensic laboratory and the result of blood test as made available to PW14 consequent upon him sending viscera and other parts collected for examination are sufficient to show that the accused is not responsible for the death of deceased. As well, the result obtained by PW14 indicated that the blood group of deceased was ''O''. Ext. P13 Forensic Lab Report where clothes of accused and deceased and also the weapon used for committing the offence were examined shows that the blood group found on these articles is of ''A'' group. No acceptable reason is offered for this disparity and the court below could not have readily accepted the stray sentence in the evidence of PW14 that it is possible that there is change in the blood group under several circumstances.

Learned counsel emphasised that while he would not completely agree with the proposition that extra judicial confession is a weak piece of evidence, it is trite that in cases built on circumstantial evidence when the prosecution banks on extra judicial confession, it has to be proved beyond reasonable doubt that it is similar to a case where extra judicial confession is treated as corroborative piece of evidence if there are other evidence available. These vital aspects have been omitted to be noticed by the court below and the court below has blindly accepted the statements of PWs 1, 3 and 6 and found the accused guilty. According to the learned counsel, conviction and sentence are clearly unsustainable in law.

Learned Public Prosecutor, on the other hand, contended that the court below has analysed the evidence meticulously and has come to the conclusion that there is no infirmity attached to the oral testimony of PWs 1, 3 and 6 and they pass scrutiny. It was emphasised that in fact PWs 1 and 3 are related to accused as well and there is nothing brought out in cross examination to show that they had any axe to grind against the accused and there is no reason as to why their evidence should be rejected. Extra judicial confession relied on by the court below clearly reveals the complicity of accused and the contention raised on behalf of the appellant that it is vague and ambiguous cannot be countenanced. The statements made by those witnesses are clearly spoken to by them and that shows that it was the accused who had committed the offence. Learned Public Prosecutor pointed out that it is idle for the appellant to contend that the motive is not established since evidence of PW15 is clear to that effect. Though she speaks that generally accused is of good character, she specifically speaks about the incident in which she was harassed by the deceased which fact was reported to her husband.

Countering the argument based on blood group, it was pointed out that evidence of PW14 is very clear to the effect that exposure to moisture and several other factors can bring changes to blood group and if that is accepted, that explains the reason for appearance of change of blood group in Ext. P13 which is the chemical analysis report. These circumstances prove the motive, extra judicial confession and identity of blood group and also the weapon used for committing offence and are sufficient to establish the complicity of accused and the court below was convinced that there is foolproof evidence exactly. Learned Public Prosecutor pointed out that unless it is shown that the findings of the court below are very perverse, interference is not called for.

The initial duty of the court is to find out the cause of death. In the case on hand, there is not much dispute in that regard. True, there is no eye witness to the incident as such and PWs 1, 3 and 6 only speak about certain utterance said to have been made by the accused and thereafter when they went to the place where the deceased resided, they found his body in the veranda. He was seen lying in a pool of blood and the weapon used for committing offence was lying a little away from his body. PW13 had conducted inquest and prepared Ext. P2 report. Ext. P2 report makes mention of the injuries found on the body of the deceased. Autopsy was conducted by PW14, Forensic Surgeon. He noted the following antemortem injuries:

"1) Lacerated wound 7 x 3 cavity deep on forehead across the midline, right end 3 cm outer to midline and eyebrow. The frontal bone underneath stowed depressed comminuted fracture over an area 13 x 5cm exposing the dura and brain matter underneath. The fracture extended through both the sides of head along both the temporal and occipital bone separating the vault of skull. There was scalp contusion 22 x 8 cm on occipital region. There were comminuted fracture of anterior cranial fossa and left middle cranial fossa. Multiple lacerated wounds over an area 7 x 5 cm on under aspect of left temporal lobe.

2) Lacerated wound 3 x 1 x 1cm on inner 1/3rd position of right eyebrow.

3) Lacerated wound 3 x 1 x 0.5cm on outer 1/3rd of right eyebrow.

4) Lacerated wound 3 x 1 x 1cm on right cheek.

5) Lacerated wound 4 x 1 x 0cm on outer side of left eyebrow, inner end 3.5cm outer to midline.

6) Multiple superficial lacerated wounds over an area 4 x 3 cm on left side of face over the cheek and lower part of left eye.

7) Lacerated wound 3 x 1 x 1 cm on left side of forehead 5cm above eyebrow and 5cm outer to midline.

The injuries No. 1 to 7 were placed on the forehead and upper part of face over an area 15 x 10 am.

8) Lacerated wound 3 x 2 x 1.5cm (oral cavity deep) on right side of upper lip, lower end 2cm outer to midline. Underneath the facture separation of maxilla between central and lateral incisors.

9) Lacerated wound 3 x 1 x 1 cm on left side of lower lip, inner end at midline. Underneath this fracture separation of mandible between premolar and canine with fracture separation of incisors and canine teeth.

10) Lacerated wound 5 x 1 x 3cm on right of chin inner end at midline.

11) Lacerated wound 3 x 1 x 0.5cm inner aspect of left side of lower lip, inner end at premolar.

12) Lacerated wound 2 x 0.5cm on under aspect of right side of chin, inner end 2cm outer to midline and 1cm below jaw margin".

His opinion as to cause of death was that death was caused due to the injuries sustained to him. PW14 is also of the opinion that injuries Nos. 1 to 7 can be caused by the use of a weapon like M.O.1.

A perusal of the ante mortem injuries seen in the face and the head shows that there are severe injuries on the face. Taking note of the ante mortem injuries and also the opinion furnished by PW14, irresistible conclusion is that deceased died of inflicted injuries and the case is one of homicide.

The next important question that arises for consideration is whether the prosecution has established that it was the accused who was responsible for inflicting injuries which led to the death of deceased. At the outset itself, it may be noticed that there is no direct evidence in this case for the incident. The case is built on circumstantial evidence. The parameters of a case built on circumstantial evidence are well settled. Each link in the chain should be independently established and the links so established should form a complete chain and the chain so constructed should lead to irresistible conclusion that it was the accused and the accused alone was responsible for the incident. While the accused is entitled to reasonable doubt, it is not proper to convict him and benefit of doubt should be extended to him. These aspects do not stand in isolation and they are well settled by now by various decisions of the Apex Court.

The court below was impressed by three main circumstances. They are, 1) extra judicial confession spoken to by PWs 1, 3 and 6, 2) motive and 3) clothes of deceased, accused and the weapon seized during investigation found to contain same blood group.

The attack of the appellant regarding the above aspects has already been noticed. The evidence of PW1 is to the effect that on the date of incident, in the morning, while he was standing outside his house, he found his brother, the accused, going along the road to Pothampadam and he was saying that there will be no further problem with Kannan as he had done away with him. Hearing the same, PW1 would say that he had gone to Tharavad house where deceased was residing and on the way he received a call from PW2 about the incident. On reaching the Tharavad house, he says that he found the deceased lying in the veranda in a pool of blood with a weapon of offence nearby. His brother was already dead. The accused, according to the evidence of this witness, was residing a little away on the south eastern side of the Tharavad house. He would then say that he had gone to the Police Station and furnished Ext. P1 First Information Statement. He identified the weapon of offence and the clothes said to have been worn by the accused on the date of incident. How far the so called extra judicial confession qualifies to be acceptable will be considered little later after referring to the evidence of PWs 3 and 6.

It may not be quite necessary to go into the evidence of PW2 since a reading of his evidence would clearly show that he had only hearsay knowledge about the incident. Of course, he would say that he had gone to the place of incident and found his brother lying in pool of blood. He also stated that he did not find anyone from the family of accused at the place of occurrence.

The next witness on whose evidence court below placed reliance is PW3. He is related to the deceased and accused. According to him, he was grazing cattle when he heard a cry as He then says that soon thereafter he saw the accused passing by and he heard the utterance made by the accused as He, Vellappan and Kandachami went to the Tharavad house of Kannankutty and found him lying dead in the veranda.

Next is the evidence of PW6. The evidence of PW6 is to the effect that both the accused and deceased are familiar to him. According to him, quarrel between deceased and accused was a routine affair and Kannan was residing in the Tharavad house. The accused and his family were residing nearby. On the date of incident, he says that he happened to see the accused going along the way proclaiming that he had done away with Kannankutty. He hastened to the Tharavad house and found Kannankutty lying in drenched blood. He also found M.O.1 lying nearby. He is also a witness to Ext. P3 mahazar.

The court below found that the claim of utterances said to have been made by the witnesses namely, PWs 1, 3 and 6 qualifies to be extra judicial confession. Admittedly, none of these witnesses have a case that it was addressed to any one of them categorically or to a group of people. A reading of the evidence of PWs 1 and 3 would indicate that the accused was going along the way making utterances which were heard by these witnesses. As far as the evidence of PW6 is concerned, it was brought out in cross examination that his claim of having heard extra judicial confession is conspicuously absent in his previous statement given to Police under Section 161 Cr.P.C. Obviously, that amounts to omission and the omission leads to contradiction making evidence in that respect extremely vulnerable.

Coming back to the evidence of PWs 1 and 3, as rightly pointed out by the learned counsel for the appellant, the statements are very vague and addressed to none particularly. Neither PW1 nor PW3 have a case that it was addressed to them individually or to any group of people. The question as to whether such proclamation addressed to none in particular can qualify as extra judicial confession was considered in the decision in Jadumani Khanda v. State (, 1993 Cri LJ 2701) wherein it was held as follows:

"6......... We cannot consider this as an extra judicial confession before P.W.2, because it is well settled that the confession must be addressed to somebody and not the way one goes on shouting in the street that he/she had killed some one. No reliance can be put on the evidence of P.W.2 which has been so held by the learned Sessions Judge and the finding being erroneous cannot be sustained.........

7.......... Considering the evidence of P.Ws 1 and 5 that the appellant did not make any extra judicial confession before any of the two witnesses, we are of the view that his confession before an assembly of the villagers which was called solely for the purpose of confronting the appellant as to whether he had killed Bayani cannot be considered to be a confession voluntarily made. There is no evidence from the side of the prosecution that at any particular point of time, the accused voluntarily confessed either before any person or an assembly of persons. Therefore the extra judicial confession as relied on by the learned Sessions Judge as one of the corner stones of the prosecution case cannot be accepted".

Of course, if confession is addressed to a group of people or to any class of people, it can certainly qualify as extra judicial confession. There is considerable debate regarding whether extra judicial confession can itself form basis of main evidence. While some decisions go on to hold that it is a weak piece of evidence, the general principle seems to be that conviction based solely on the basis of extra judicial confession cannot be termed as legal. The court must look for corroboration before accepting the extra judicial confession. Of course, if the extra judicial confession is found to be convincing and cogent, there is no reason as to why the same should not be accepted.

In the case on hand, it is difficult to accept the version given by PWs 1 and 3 that the accused was seen going along the road murmuring utterances which they spoke before court. It is significant to notice that these witnesses say differently regarding the so called utterances made by the accused. Neither PW1 nor PW3 or PW6 has got a case that same utterances were being made by the accused. It is difficult to say that accused had gone along the way proclaiming that he has done away with Kannankutty in different modes. Even assuming that the accused had made such utterances in the context of such evidence, it cannot be treated as a strong item of evidence as such adduced in the result of which a conviction can be safely made. In such cases, it will be appropriate to look for corroboration. When we look for corroboration, we find there is almost none available. The motive spoken to by PW15 is relevant if that relates to any particular date though from the statement made by the accused under Section 313 Cr.P.C, it could be discerned that it was on the date of incident. However, it will be improper and imprudent on the part of court to take a portion of the statement under Section 313 Cr.P.C, highlight them and hold it against the accused. Read as a whole, accused seems to have a case that while his wife, PW15, had been pestered by the deceased, he and his wife decided to give a complaint to the Police and when they were gone to Police Station, he was arrested and his wife left him. Of course, he has not adduced any evidence in support of his defence. But, he has got a version of his own regarding the incident. The evidence of PW15 does not support PW1 so far as going to the Police Station is concerned. However, it could not be said that the motive is properly established. Apart from motive being vague, it will be imprudent on the part of court to take it as a substantive piece of evidence.

Coming next to the evidence regarding blood stains found on the clothes said to have been worn by the deceased and accused at the time of incident so also the weapon of offence, court below was greatly impressed by the fact that it all contains the same group of blood stains. The evidence of PW14 who had conducted autopsy is to the effect that the blood group of the deceased was ''O''. On the other hand, Ext. P13 Forensic Lab Report shows that the blood group found on various articles sent for chemical examination i.e. clothes worn by the deceased and accused and the weapon used by accused is ''A''. Of course, this Court is not overlooking the fact that PW14 in his evidence has stated that it is possible that due to various factors, there may be changes in the blood group. The said statement made by the Forensic Surgeon cannot be easily swallowed. It is for the prosecution to establish beyond reasonable doubt that there would be changes in the blood group based on various circumstances. It is not a matter for ready reference. One is left in serious doubt as to which exactly is the group of blood that belong to the deceased. It is well settled that if there is any doubt regarding the proof of evidence, that should go in favour of accused. Thus, on analysis of evidence, we are unable to accept the finding of the court below that extra judicial confession, motive and blood group found as a result of Ext. P13 report are sufficient to complete the chain leading to irresistible conclusion that the accused had committed the offence. The above three aspects have not been established beyond reasonable doubt and therefore it could not be said that there is complete chain so as to lead to the irresistible conclusion already made mention of. We are therefore unable to sustain the conviction and sentence passed by the court below.

In the result, this appeal is allowed. The conviction and sentence passed by the court below for the offence under Section 302 of Indian Penal Code are set aside and it is held that the accused is not guilty of the said offence. He stands acquitted of all the charges levelled against him. He shall be released forthwith unless wanted in any other case.