Padmanabhan @ Padma vs State Of Kerala

C. Jayachandran, J.

Under challenge before us is the judgment of the Additional Sessions Judge, North Paravoor dated 4.1.2007 in S.C.No.358/2003, as per which, the

accused persons, two in number, were found guilty of offences under Sections 302 and 201, read with Section 34 of the Indian Penal Code. They

were sentenced to undergo life imprisonment for the offence under Section 302, and rigorous imprisonment for one year for offence under Section 201

of the Penal Code, both sentences being directed to run concurrently. An appeal carried by the first accused â€" Crl.Appeal No.859/2008 â€" was

allowed by a Division Bench of this Court as per judgment dated 3.7.2012. The first accused thus stands acquitted. The second accused is the

appellant herein. As per Order dated 25.11.2021 in Criminal MA No.1/2021, we condoned the delay in preferring the present appeal.

The prosecution case:-

According to prosecution, on 09.10.2000 at about 6.45 p.m, the accused persons, in furtherance of their common intention, caused the death of

Nandakumar @ Kumar, also known as “M.G.R.â€, aged 24 years, by drowning him in the Panchayath pond. Thereafter, a stone was tied on the

dead body to prevent it from surfacing. The dresses worn by Nandakumar, which were kept on the bank, were thrown into the pond, thus causing

disappearance of evidence, with the intention of screening themselves from legal punishment.

The prosecution paraded 17 witnesses, through whom Exts.P1 to P9 were marked and MO1 to MO5 were identified. On the defence side, DW1

was examined and Exts.D1 to D3 and X1 were marked. On an analysis of the facts and evidence, the learned Sessions Judge convicted the accused

persons by the impugned judgment as indicated above.

Appellant's arguments

The first and foremost contention of Sri.P.T.Jose, learned counsel for appellant/A2, is that the body recovered by the investigating agency is not

that of the deceased, Nandakumar @ Kumar. As per the prosecution case, the deceased was aged 24 years, as could be seen from the final report

and court charge. However, the age of the individual, whose body was recovered, as per Ext.P5 postmortem report is between 40 and 45 years. PW8,

the doctor who conducted autopsy, deposed that the age of the body examined is between 40 and 45 years. His subsequent opinion in Ext.P5

postmortem report that the age could be above 22 years and below 40 years, is nothing but an act in aid of the prosecution version, not supported by

any scientific or logical basis and, therefore, wholly unacceptable in evidence.

Learned counsel pointed out that the age of the corpse, as stated in Ext.P1 F.I.S, is 40-45 years, whereas it is 40 years as per Ext.P9 inquest report.

Thus, the prosecution failed to establish the foundational fact regarding the death of the deceased, wherefore, the judgment of conviction cannot be

sustained at all. Learned Counsel would conclude by pointing out that the above contention has been accepted in the judgment in Crl.Appeal

No.859/2008, leading to acquittal of the first accused, which principle is liable to be adopted in this appeal, as well.

Learned counsel also assailed the evidence of PW2 and PW3 relied upon by the learned Sessions Judge, in construing the same as effective links in

the chain of circumstantial evidence against the accused persons. The alleged identification of the body by PW2 as that of deceased is of no moment,

as the same is in the teeth of Ext.D1 contradiction marked, while cross examining PW2. Ext.D1 pertains to his former statement given before the

Court in S.C. No.81/2002 (a connected case, wherein the same accused persons have allegedly committed the murder of the wife of deceased herein)

to the effect that the body could not be identified, since it was decomposed substantially. Again, the said identification cannot be accepted in the light

of evidence tendered by PW1, who preferred F.I.S, as also, Ext.P9 inquest report. As regards contradictions marked on behalf of prosecution as

Ext.P2 series, it was submitted that the same is not substantive evidence, since it only refers to the witness having given former statements before the

police.

As regards the evidence of PW3, learned counsel canvassed the same argument with respect to Exts.P3 and P3(a) contradictions, the said witness

also being declared hostile at the instance of the prosecution. Learned counsel would conclude that the defence had maintained a stand that

Nandakumar @ Kumar is alive, which contention, in juxtaposition with the evidence regarding the age of the corpus delicti, would cut at the very root

of the prosecution case.

Arguments of the Public Prosecutor.

While arguing to sustain the judgment impugned, learned Public Prosecutor pointed out that PW8/doctor had opined in Ext.P5 postmortem report

that the age of the body recovered could be above 22 years and below 40 years. More over, PW2 specifically identified the dead body recovered as

that of the deceased. Therefore, it cannot be contended on that count that the death of the deceased has not been established. According to the

learned Public Prosecutor, findings in the judgment in Crl.Appeal No.859/2008 will not bind this Court and it is open for us to take an independent

view, this appeal being a separate and distinct one preferred by the second accused. Learned Public Prosecutor, thereafter, submitted that the

evidence tendered by PW2 and PW3 would form a complete chain of circumstantial evidence, pointing to guilt of the accused persons, unerringly.

Learned Prosecutor further pointed out that the evidence tendered by PW3, though he was declared hostile, were substantially voluntary in nature,

incriminating the accused, which has been rightly taken stock of by the learned Sessions Judge to find the accused persons guilty. The judgment

impugned warrants no interference, concludes the learned Public Prosecutor.

Having heard the learned counsel appearing on both sides, we will now analyse the respective contentions. We may indicate, at the outset, that we

find considerable force in the arguments advanced by the learned counsel for the appellant as regards the proof regarding the death of the deceased,

Nandakumar @ Kumar. As rightly pointed out by the learned counsel, the age of the deceased as per final report and court charge is 24 years. PW1

would specifically state in Ext.P1 F.I.S that the age of dead body is approximately between 40 and 45 years. In Ext.P9 inquest report, age of the body

is stated to be, approximately 40 years (see clause-Xiv). The age, as stated by two witnesses whose statements were recorded in Ext.P9, is also

approximately 40 years.

More importantly, the age of the individual, whose body was examined, is stated to be about 40 years in the beginning portion of Ext.P5 postmortem

report. However, in the second page, which deals with 'Opinion', vide Clause 3, the age is stated to be above 22 years and below 40 years. It is in this

factual matrix that the question of identification of the body recovered as that of the deceased, surfaces.

We find it extremely difficult to accept the version of PW8 as regards the probable age of the individual, whose body is recovered. The range of

age shown in Ext.P5 postmortem report is between 22 and 40, which is quite a wide range, incapable of supporting the prosecution version that the

deceased was aged 24 years. In this regard, it is relevant to note that what has been spoken to by PW8 before court towards the beginning of his

deposition is that he had conducted postmortem on the body of a male unknown, aged about 40 years. Of course, in the later portion of the

examination, PW8 had opined the age as between 22 and 40 years.

Having regard to the unusually wide range of the age, suggested as an opinion in Ext.P5 postmortem report, we are not in a position to accept the

same. This is all the more so, in the light of the evidence tendered by PW1 before the court, as also, in Ext.P1 F.I.S. and the age referred to in Ext.P9

inquest report. Of course, PW1, or for that matter, PW15, who prepared Ext.P9 inquest report, are not experts to speak about the age of the corpse

recovered and it could possibly be contended that PW8 doctor has the status of an expert, wherefore, his version regarding the age should be given

complete credence of. We are not persuaded to endorse the above proposition, for two reasons. Firstly, the age made mention of in the beginning

portion of Ext.P5 postmortem report, as also, in the deposition of PW8 before court, is approximately 40 years. The subsequent opinion regarding the

possible range of age in Ext.P5 report, re-stated by PW8 before court, is not referable to any scientific basis. No reason/explanation is forthcoming as

to why such a wide range of age is suggested as an opinion, quite unusually. The contention that the said suggestion is made only to support the

prosecution version cannot be thrown overboard in the factual setting, as established by the materials on record in this case. Secondly, as rightly taken

note of by the Division Bench of this Court in Criminal Appeal No.859/2008 (paragraph no.13), the evidence tendered by an expert is only an opinion.

It is for the court to take a final call in the matter, based on expert's evidence, as also, other relevant facts established in evidence. At any rate, it

cannot be said that the opinion of an expert is binding on the court, although courts attach due weight to such opinion. For reasons already adverted to

above, we cannot accept the opinion regarding the range of age, indicated in clause 3 of Ext.P5 postmortem report, for, it revolts against the opinion of

the same expert as indicated in the beginning of Ext.P5, as also, in his deposition before court.

Before concluding the point, we will deal with the evidence tendered by PW2 also, as regards identification of the corpus delicti. PW2 would

specifically state in chief examination that the dead body he saw in the pond was that of the deceased. The veracity of this statement is seriously

rendered suspect, in view of Ext.D1 contradiction brought out in cross examination. Ext.D1 pertains to evidence tendered by PW2 in a connected

crime, S.C.No.81/2002. There, PW2 gave evidence to the effect that the dead body could not be identified, since it was substantially decomposed.

Therefore, the evidence of PW2 purporting to identify the dead body as that of the deceased is completely unbelievable. That apart, PW1 gave

evidence to the effect that the body was lying upside down and that the face was not visible. It is so stated in Ext.P1 F.I.S. also. Thus, there is little

possibility for PW2 to identify the dead body as that of the deceased. Again, the identification of the dead body by PW2 is not based on any peculiar

feature of the deceased. Nothing is forthcoming in evidence as to how and on what basis PW2 had identified the deceased. Pw2 had acquaintance

with the deceased only for 2 months. His evidence is, therefore, eschewed.

Thus, we conclude that the prosecution failed to establish that the dead body recovered is that of the deceased, Nandakumar @ Kumar. In other

words, the death of the deceased itself, leave alone whether it is homicide or otherwise, could not be established by the prosecution. For this reason

alone, the appeal is liable to be allowed, acquitting the appellant/A2.

Of the evidence tendered, the one which apparently supports the prosecution, at least to a limited extent, is that of PW3, who was prematurely got

declared hostile by the prosecution. In the evidence tendered by PW3, after he was got declared hostile, some aspects here and some aspects there,

apparently supports the prosecution, to certain extent. However, any amount of evidence tendered, in the absence of establishing the homicide of the

deceased, is of little avail to the prosecution. We are, therefore, not discussing the effect of the remaining evidence, as the same would not serve any

useful purpose.

In the result, this appeal is allowed. The appellant/A2 is acquitted of the charged offences. However, he is not directed to be set at liberty, since he is

undergoing life imprisonment, pursuant to the judgment of conviction in S.C. No.81/2002 of the Additional Sessions Court, Paravoor, as confirmed by

this Court vide judgment in Crl.Appeal No.168/2003.