Ponnumani @ Ayyappankutty vs State of Kerala

Bhat, J.—The five accused were tried in the court of Session, Palghat for offences under sections 302, 201 and 109 IPC. Accused 1 and 2 were tried for offences under sections 302 and 201 IPC. Accused 3 and 4 were tried for offences u/s 302 read with section 34 I.P.C. as also section 201 I.P.C. Fifth accused was tried for the offence u/s 302 I.P.C. read with section 109 I.P.C. Ultimately the Sessions Court convicted the fourth accused u/s 302 I.P.C. and imposed sentence of death subject to confirmation by this court and further convicted him u/s 201 I.P.C. and sentenced him to undergo R.I. for three years. The court also convicted the fifth accused u/s 302 I.P.C. read with section 109 I.P.C. and sentenced her to undergo imprisonment for life. Accused 1 to 3 were acquitted of all charges. Referred trial has arisen on account of sentence of death. Fourth accused has filed Crl. A. 158 of 1987 and fifth accused has filed Crl. A. 278 of 1987. Prosecution case can be summarised thus. Deceased Narayanan Guptan, husband of fifth accused, was conducting a tea shop at Madurai in Tamil Nadu. He contracted leprosy and about six months prior to the occurrence he left his business at Madurai and settled down with his wife, fifth accused, his son, P.W. 2, and younger daughter in their house at Azhiyannor. Meanwhile fifth accused developed illegal intimacy with a neighbour and worker, fourth accused. Narayanan Guptan used to complain about this to others including his younger brother, P.W. 4, and maternal aunt, P.W. 3. He had cautioned fourth accused not to visit his house. Accused 4 and 5 conspired and decided to kill Narayanan Guptan. Fifth accused procured the assistance of labourers, accused 1 to 3, for consideration. On the evening of 22-12-1985 accused 1 to 3 were seen in the company of 4th accused. Earlier they were found near the house of Narayanan Guptan. During the night they were seen in the house of fourth accused. As usual 5th accused along with her son and daughter slept in a room in the house while Narayanan Guptan slept in the veranda. At about midnight fourth accused went to the house of Narayanan Guptan and told fifth accused that everything was ready and money had to be given. Fifth accused opened the box, took Rs 300/- and paid the same to fourth accused. Fourth accused left the room. Fifth accused closed the door and went back to bed. This incident was seen by P.W.2. Some time later P.W.2 heard loud cries of his father saying that he was being killed. His attempt to wake up fifth accused was unsuccessful as she was pretending to asleep. P.W.2 got up and peeped through the gap of the door. He heard foot steps and loud voices near the place where his father was sleeping. A short while later he heard 4th accused addressing second accused and asking him to raise the head. Neighbours also heard the cries Next morning 5th accused raised an outcry saying, that her husband had committed suicide by hanging on a tree in the neighbouring compound of P.W.4. Neighbours gathered. A tile was seen removed from a corner of the house and placed near the tree with some words written in charcoal to the effect that Narayanan Guptan ended his life of his free will.

P.W. 1 went to Sreekrishnapuram Police station and gave Ext. P1 statement at 10 a. m. case suggested was one of suicide. S. I. of Police P.W. 19, registered the case as unnatural death. He deputed P. W, 18. Head Constable, to conduct investigation. P.W. 18, questioned P. Ws 2, 5, fifth accused and others and prepared Ext. P2 inquest report and seized M.O. 4 tile. P.W. 18 gathered that case was not of suicide but one of homicide and that accused 4 and 5 were responsible for the same. Post mortem was conducted by P.W. 12 of the Palghat District Hospital. On 26-12-1985, P.W. 19 took over investigation. He prepared Ext., P5 scene mahazar and seized M. O. 5 blood stained sand. He sent Ext. P15 report incorporating sections 302 I.P.C. and 34 I.P.C. On 27-12-1985 Circle Inspector of police. P.W. 20, took over investigation. Another report. Ext. P16, was sent implicating accused and incorporating section 109 I.P.C. In due course accused were arrested and specimen handwriting of fourth accused was taken as per sanction of court and handwriting compared with the writing in the tile. After completing investigation final report was laid against the five accused.

Prosecution examined 20 witnesses and marked Exts. P1 to P19 and M. Os.. 1 to 14. Defence marked Exts. D1 to D6, but did not adduce any oral evidence. Defence was one of total denial Sessions court held that it was a case of homicide and not one of suicide. There was sufficient circumstantial evidence to show that fifth accused was the brain behind the murder and that fifth accused was in conspiracy with 4th accused. But the evidence was not sufficient to uphold the guilt of accused 1 to 3. It was on these findings that the court below proceeded to convict and sentence accused 4 and 5.

P.W. 12 who conducted post mortem examination and issued Ext. P6 certificate stated: nails were blue and vertical salivary dribbling mark over the left side of front of chest, tongue was protruding partly and ligature was not in situ over the neck. He noted irregular abraded contusions on the top of the right shoulder, over the top of the outer part of right shoulder, over the back and upper part of right shoulder, linear abrasions over the right upper limb, right side of chest, right side of neck, multiple abraded contusions over both sides of nose and right side of forehead, over back of the left elbow and over the front of right knee, multiple irregular contusions over the right side of the fore arm and abraded contusions on the top of the left shoulder, right side of the front of chest and left side of the neck. He deposed that these injuries were anti mortem. Internal organs were congested. He gave the opinion that death was on account of pressure over the nose and the neck. There were certain post-mortem injuries, viz., abraded contusion over the neck, over and above the adam''s apple, and horizontal abrasion over the back of the neck. He disposed that post mortem injuries were not consistent with death due to hanging. Abraded contusion on the left side of the neck above the collar bone with infiltration of blood over the soft tissues over the lower part of left side of thyroid cartilages (injury No. 13 in Ext. P6) rules out case of suicide. There was no antemortem ligature mark suggesting suicide. Post mortem injuries in his opinion can be caused by tying around the neck with a cloth immediately after death. He deposed that the abrasions and abraded contusions can be caused by the body coming into contact with a rough surface or in the process of applying pressure to the ground. This could have been done while the victim was lying or sleeping. The above evidence clearly shows that Narayanan Guptan died on account of pressure applied on the nose and neck and structures. It was clearly a case of homicide and not suicide.

There is no eye witness to the occurrence in which Narayanan Guptan died. Prosecution relied on circumstantial evidence consisting of evidence regarding certain events during the night of the occurrence provided by P.Ws. 2, 5, 7 and 8, the evidence regarding motive provided by P.Ws. 2 to 5, the evidence regarding recovery of M.O. 4 tile with charcoal writing alleged to be in the handwriting of the fourth accused.

P.W. 2 is the son of Narayanan Guptan and fifth accused. He was twelve years old when he was examined. There is incontrovertible evidence of P.Ws. 2, 4 and 8 corroborated by the evidence of Doctor, P.W. 12, that Narayanan Guptan was suffering from leprosy and his hands and feet were partly affected. That was why about six months prior to the occurrence he wound up his tea shop at Madurai and settled down in his own house with his wife and children. P.W. 2 deposed that on the night of the occurrence he along with fifth accused slept in a cot in the room of the house while Narayanan Guptan slept in the veranda. He went to bed at 8 p.m. During night he woke up on hearing the sound of the northern door of the room being opened by the fifth accused. Fourth accused came in and sat on the cot. P.W. 2 pretended to be asleep. Fourth accused told fifth accused (They have come. Everything is arranged. Money is necessary) to which fifth accused replied (children will wake up, you do as agreed). Thereafter fifth accused opened the box, took out money and paid it to 4th accused, who left the room. Fifth accused shut the door and went back to bed. These events were witnessed by P.W. 2. He heard his father''s cry from the veranda. Father called out his name Father also cried out (do not kill me). He attempted to wake up his mother. According to him, fifth accused laid as he was pretending to be asleep. The witness went to the door and peeped through the door space, but could see nothing. He heard loud voices and foot steps in the veranda where his father was sleeping, He also heard a groaning sound. He further heard 4th accused saying "Kutta, raise the head and hold it." The boy went back to bed. The window of the room had no shutters and there was moon light coming into the room. Therefore he could see accused 4 & 5 and the payment of money.

The evidence of P.W.2 is most important piece of evidence adduced by the prosecution and the court below accepted the evidence as true. According to the prosecution, this evidence to an extent has been corroborated by other witnesses. P.W. 5 is the sister in law of Narayanan Guptan and a neighbour. She deposed that at about 1 A.M. at night she heard cry from Narayanan Guptan''s house and woke up. She heard the cry three times. She was alone with her child, her husband having gone to Madras and therefore she did not come out. She also heard foot steps. She saw shadow of four persons, one of whom she identified as fourth accused. She could do so because there was moon light. She heard cry calling and shouting and other sounds. P.W. 7 who resides 1 k.m. away from the scene had seen fourth accused and three others walking towards the house of the fifth accused. He purported to identify the three persons as accused 1 to 3, but that was not acted upon by the court. P.W. 8, sister of the fourth accused and hestile witness deposed that she heard groaning sound from Narayanan Guptan''s house at night. She declined to speak that at about 10 p.m. she had seen 4th accused and three others together.

Learned counsel seriously challenged the above evidence, in particular the evidence of P.W. 2 described as child witness. At the commencement of the deposition of P.W. 2 learned Sessions Judge recorded "Child questioned by court. Witness sworn. Capable of understanding questions and answering the same." Witness has been sworn also. It is pertinent to notice the observations of the learned Sessions Judge regarding this witness. In Paragraph 43 of the judgment learned Sessions Judge observed:

No doubt, he is technically a child witness, while he is in the margin. He has given his age as 12 Preliminary questions have been put to him to see whether he is capable of understanding things and answering them correctly. He presented himself as fully competent to do so. No hesitation is felt by him in answering questions. As the prosecution mostly depends on his evidence for establishing their case and as he is also the most material witness, his version requires to be scrutinised closely and with certain amount of caution.

In paragraph 44 the learned Sessions Judge observed:

He answered many of the questions very promptly and without hesitation. He appears to be intelligent and smart. He told clearly and legibly as to what happened on the night, when A4 came to his mother. The way he narrated it appears to be natural and it never appears to be a tutored version. Vigorous cross examination would not shake him any manner apart from succeeding in eliciting more informations in support of the prosecution. It is to be remembered that a child normally is unable to keep up a consistent false story through various questions of a cross examiner and, unlike adults, often commit mistakes. But nothing of the sort happened in his case. If he was amenable to tutoring there is no reason why he is made to stop where he stopped. He could have been compelled to go further and state he witnessed everything..................................he has been speaking only the truth.

Often in the witness box he was found in tears and once he was found in uncontrollable sobs. It took a long time to subside and his mother in the box also was found in tears while he was giving evidence and probably this provoked him to cry out. The fact that during the examination he and his mother were emotionally upset and that he was giving his evidence in that state of mind rules out any possibility that he was giving false evidence,

In paragraph 45 the learned Sessions Judge observed:

The grounds urged against the acceptance of his evidence as not reliable, that he is a child witness capable of being tutored, that he has been living with his relations inimical towards A5 and that he had not disclosed what he had seen on the first occasion itself have to be examined before his evidence is held as fully reliable. It is already stated above that the nature of deposition does not suffer any infirmity of a child witness and that he has not been giving a tutored version..............

........He is speaking against his own mother that she is responsible for the death of his father. We cannot say any son will come forward to swear falsely against his parents..........

Learned Judge proceeded to consider the other reasons urged against the credibility of the witness and rejected them. This is seriously challenged before us. Learned counsel also pointed out that preliminary questions put by the court and answers given by the witness, which convinced the court about the competency of the witness to give evidence and his under standing the nature of the oath have not been recorded in the deposition. Since such a contention is urged in many cases, we think it necessary to consider the matter in some detail.

There is no provision in the Indian Evidence Act specifically dealing with child witness, nor is the expression ''child'' defined therein. The case law regarding child witness has grown mainly on the basis of Section 118 of the Evidence Act. Section 118 deals with persons who may testify. All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. We may also advert to the provisions of the Oaths Act, 1969, which replaced 1873 Act-Section 4 (1) (a) prescribes all persons who shall make oath or affirmation. It says, inter alia, that oath or affirmation shall be made by all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence. Proviso to sub section (1) states that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does note understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath, or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. Section 7 states, inter alia, that no omission to take any oath or make any affirmation, and no irregularity in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place or shall affect the obligation of a witness to state the truth. Section 8 states that every person giving evidence on any subject before any court or person hereby authorised to administer oaths and affirmation shall be bound to state the truth on such subject.

Section 118 of the Evidence Act deals with competency of witness The rule generally is in favour of admission of evidence though the weight to be attached to it will naturally be a matter for consideration by the court. No witness is incompetent unless the court considers he is unable to understand the questions put to him or to give rational answers by reason of disability as contemplated in the section such as tender years etc. There is always competency unless the court considers otherwise. If a witness is not competent, he cannot be examined in court. In this connection it is instructive to refer to the observations of Brewer in George L. Wheeler v. United States-159 U.S. Page 523, which have been quoted with approval by various courts in India.

This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial Judge, who sees the proposed witnesses, notices his manner, his apparent possession, or lack of intelligence and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. As many of these matters cannot be photographed into the record, the decision of the trial Judge will not be disturbed in review, unless from that which is preserved, it is clear that it was erroneous.

See Krishna Kahar Vs. Emperor, , Ram Hazoor Pandey v. State (AIR 1959 All. 409) and Vasu v. State of Kerala (1960) I. L. R. Ker 256.

The provisions of the Oaths Act referred to earlier deal not with competency of witnesses but with the administration of oath to witnesses including child witnesses. Oath or affirmation shall be made by all witnesses. In the case of a witness who is a child under twelve years of age where the court is of the opinion that though the witness understands the duty of speaking the truth, he does not understand the oath or affirmation, there is no question of administering oath or affirmation to him. But the absence of oath or affirmation shall not render his evidence in admissible, it shall also not affect his obligation to state the truth. It is clear that oath or affirmation could be administered to a witness only if he understands the duty of speaking truth and nature of an oath or affirmation. There must be clearly present in the mind of the witness his obligation to speak the truth and the consequence of not speaking the truth. While it is mandatory to administer oath or affirmation to all witnesses, where the witness is child under twelve years of age and does not understand the nature of an oath or affirmation, the same cannot be administered to him.

Oath or affirmation is administered to a witness before commencement of his evidence. The general rule is that oath or affirmation is to be administered to all witnesses. However, it is not to be administered in the case of a witness, who is a child below twelve years of age, where he does not understand the nature of the oath or affirmation. This rule does not apply to witness, who is or who has passed twelve years of age. Where a witness is below twelve years of age the court would question him in order to satisfy itself that he understands the duty of speaking the truth and the nature of the oath or affirmation.

We have already indicated that all persons are competent to testify unless court considers differently. Competency to testify depends on ability to understand questions and to give rational answers. Ordinarily the court can proceed on the basis that a witness who appears before it is competent to testify. But where witness is a child (or of extreme old age or disease etc.), the court is put or the alert and applies its mind to consider whether the witness can understand questions put to him and give rational answers and is competent to testify. Ordinarily this satisfaction is to be arrived at by preliminary examination of the witness by the court. This is not to say that preliminary examination is mandatory in the sense that in its absence evidence should be treated as inadmissible; general rule is in favour of competency and satisfaction, if necessary, can be arrived at in the course of the evidence. However, court would do well to conduct preliminary examination to satisfy itself on this score in regard to witnesses suffering from disability as contemplated in section 118; of the Evidence Act. It is desirable to bring on record questions and answers put to witness and to record satisfaction in terms of section 118. This is not to say that in the absence of record or specific note the evidence would become inadmissible. Whether the court has been so satisfied is a matter which can also be inferred from the record. See Arulan Isreal v. State (AIR 1955 T. C. 6), Marianthony Mariasoosa v. State (AIR 1955 T. C. 81), Rameshwer v. State of Rajasthan (AIR 1955 S.C. 54), Govind Natha Vs. The State, and State of Rajasthan v. Vijairam ( 1968 Crl. L. J. 270 (Raj.). This principle would apply to satisfaction of the court in regard to administering oath or affirmation to a child witness under the provisions of Oaths Act.

In the present case we find that note made by the learned Sessions Judge would clearly indicate that he conducted preliminary examination of the witness to decide on the competency of the witness. Since the witness was not a child under twelve years of age learned Sessions Judge evidently did not conduct preliminary examination to verify whether the witness understands the nature of oath or affirmation. We find no infirmity in the procedure adopted by the learned Sessions Judge though we feel that he would have done well to record the questions and answers themselves Having read the evidence of P.W. 2 we have no doubt in our mind that be was competent to testify and that he knew his duty to speak the truth.

There is absolutely no indication that P.W. 2 had any reason, other than the alleged complicity of his mother in the occurrence, to entertain any ill-will towards her. His conduct in the witness box as noted in the judgment clearly shows that he had all affection towards his mother and was upset in giving evidence against her. Nevertheless he gave evidence against her and successfully withstood cross-examination. He was questioned during inquest. On that occasion he did not inform the police about the sounds heard by him and events seen by him at night. However, he himself explained that his mother was nearby and he was afraid to narrate the events to the police, The evidence of the Investigating Officer would show that P.W.2 was questioned three days thereafter. There is no case for the appellants that on that occasion the witness did not narrate all the events. Instinctive re-action of the boy not to implicate his mother and not to implicate even the fourth accused (for implicating 4th accused would implicate her also) is perfectly understandable. The boy would have been in a state of utter shock, to see his ailing father dead and at the same time his mind would have been full of suspicion against his mother. Within the next few days he would have recovered equanimity and talked to the police in detail. His failure to narrate the events to the police on the first occasion or even to others cannot be a ground to reject his testimony. A child witness is naturally susceptible to tutoring, but, as rightly pointed out by the learned Sessions Judge, reading his evidence would show that he was not a tutored witness. He has given natural and consistent version of the events transpired in the night.

Learned counsel for the appellants would contend that P.W. 2 must be treated as a child witness and the evidence of child witness cannot be acted upon without corroboration in material particulars. This aspect has been considered by the courts in India in several decisions. The leading case is the one in Rameshwar Vs. The State of Rajasthan, . Bose, J, speaking for the bench quoted with approval the observations of Lord Reading, the Lord Chief Justice of England in The king v. Baskerville (1916) 2. K.B. 658 and held:

In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the Judge. In a jury case he must: tell the jury of it and in a non-jury case he must show that it is present to his mind by indicating that in his judgment. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him either the jury, or, when there is no jury, he himself, is satisfied that it is safe to do so. The rule, which according to the cases has hardened into one of law, it is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case such, for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence, must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them., There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.

The learned Judge also indicated that it is not necessary that there should be independent confirmation of every material circumstance to sustain conviction; independent evidence must make it safe to believe that crime was committed and in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. The corroboration need not be by direct evidence. It is sufficient if there is circumstantial evidence of his connection with the crime.

Learned Sessions Judge had these principles in his mind when he dealt with the evidence of P.W.2. The witness was twelve years old at the time when he gave evidence. He cannot be described as child of tender years. Learned Sessions Judge, noticed the demeanour and conduct of P.W.2 in the witness box and unlikelihood of tutoring. Going through the deposition of the witness we are also satisfied on this count. It is true that immediately after the occurrence he was for some time staying with P.W.3 and thereafter with P.W.5, both close relations of Narayanan Guptan. There is some indication to show that they were not very friendly with fifth accused, though there is nothing to show any hostility towards fourth accused. We do not think we can hold that the boy would have been influenced by them. The manner in which the boy gave evidence and his conduct in the witness box discounts any possibility of tutoring. Though it was night there was moon light and the window of the room had no shutters. Fourth accused being a close neighbour and person who was helping these persons in work in the field was very familiar to the boy. There would have been no difficulty to identify the 4th accused during the night. He not only saw them, but also heard their voices.

We have to consider whether any other corroboration is available. P.W. 2 deposed that his parents used to quarrel because fifth accused was friendly with the fourth accused who used to come to the house almost daily. About one and half months before the occurrence there was a quarrel between his father and fourth accused and the father asked the latter not to come to the house. Thereafter fourth accused used to come only at night and sleep in the house. P.W. 3 deposed that fifteen days before the occurrence Narayanan Guptan went to his house and complained that he was living in his house as stranger and the fifth accused was on terms of intimacy with fourth accused. P, W. 3 made some enquiries in this behalf. Similar is the evidence given by P.W.4 P.W.5 deposed that there were quarrels between 4th accused and Narayanan Guptan and he had seen 4th accused coming to the house of 5th accused on several occasions. P.W.8, sister of the fourth accused deposed that fourth accused married six moths before the occurrence and after a quarrel the wife is living separately. She denied knowing the reason for the quarrel. It is shown that in her statement to police she had stated that the quarrel was because the fourth accused was going to the house of the fifth accused and because the wife of the fourth accused came to know about the intimacy between 4th accused and fifth accused. We find no reason to reject the above evidence which corroborates the evidence of P.W.2.

The next morning dead body of Narayanan Guptan was discovered hanging on a cashew nut tree in the untenanted compound of his brother. Body was hanged using M.Os 1 and 2 cloths belonging to Narayanan Guptan The evidence of P.Ws 2 to 5 and that of the Doctor is that there were injuries on the dead body. P.Ws 2, 4 and 10 clearly deposed that M. 0.4 tile with writing in charcoal was found at the bottom of the cashew nut tree. The tile was identified as M.O. 4 by P.Ws. 4 and 10. After obtaining permission from the court. Investigating Officers went to Sub Jail and obtained specimen handwriting of the fourth accused on two tiles M.Os 7 and 8, and on several papers, Ext. P9 series. That is spoken to by these officers as well as the Superintendent of the Sub Jail P.W. 15 and this evidence is corroborated by the contents of the mahazar. Ext. P8. P.W. 13 photographer took photographs of M.O. 4, photograph being M.O. 6 and negatives being M.O. 6 series. P.W. 14 took photograph of M.Os 7and 8 and photographs and the negatives are also marked. The standard writings and the disputed writing were sent to P.W. 17, Assistant Director of Document Division attached to Kerala State Forensic Science Laboratory, Trivandrum. After a detailed examination he submitted Ext. P11 report. P.W. 17 gave evidence in terms of Ext. P11 report. In his opinion the writing on M. O. 4 is by the same person who wrote on M. Os 7 and 8. That can only be the fourth accused. The reasons are given in Ext. P12 and spoken to by the witness. He marked the various writings and made comparison. The standard writings are A-l, A-2 and S-1 to S12. The questioned writing is Q-1. He noticed the habit of writing the Malayalam letter in a particular manner and finishing the Malayalam word the manner of writing the Malayalam letter the nature and location of start and movement of writing the Malayalam letter the movement of writing Malayalam letter with its twisted slant, the manner of writing the letter with nature of movement at the terminal part, the location of start, movement and finish in the execution of vowel sigh ''E'' the location and nature of start of letter the direction of finish of letter the manner of writing the letter the nature of execution of the letter the manner of writing the letter the movement of writing the finishing part of the letter the location and nature of execution of the crescent mark ''U'' over the letters; these clearly indicate the identity of the author. These features were found in spite of the fact that some of the letters were not legible. The lower court went into the reasons and accepted the same. We have also examined the photographs We agree with the view taken by the expert. It must necessarily follow that the tile found at the bottom of the tree from which Narayanan Guptan was found hanging contained the writing by the fourth accused.

M.O. 4 tile purported to contain writing by Narayan Guptan that he had committed suicide and none else was responsible for it. Narayanan Guptan, as the evidence would clearly show, had leprosy and his hands and feet were affected. The evidence of P.W.4 would show that Narayanan Guptan could not even hold a tumbler in his hand. P.W. 2 would say that Narayanan Guptan could not climb a tree or even tie a cloth Obviously he could not have done the various acts which resulted in hanging or the writing on M.O 4. The evidence would suggest that M.O. 2 was taken from the roof of the house. It is clear that fourth accused wrote in M.O. 4 in order to create an impression that it was a case of suicide and not homicide. These circumstances provide ample corroboration to the evidence of P.W. 2.

We now deal with the motive alleged by the prosecution. According to the prosecution, motive also provides corroboration to the evidence of P.W. 2. P.W.2 deposed that his parents used to quarrel because mother was very friendly with the fourth accused, fourth accused used to come daily to the house, that one and half months prior to the occurrence his father cautioned fourth accused against coming to the house and thereafter the latter used to come only at night and also sleep in the house. P. Ws. 2, 3 and 4 deposed that few days before the occurrence deceased met them and complained of the intimacy between fourth accused and fifth accused. P.W. 5 had seen fourth accused visiting the house of fifth accused on several occasions. Even P.W.8 deposed that on coming to know of this fourth accused''s wife left him Learned Sessions Judge accepted the evidence arid we find no reason to take a different view. It is clear that accused 4 and 5 were on terms of illicit intimacy and found Narayanan Guptan standing in the way of their continued intimacy. This would have provided strong motive for them to end the life of Narayanan Guptan. This again strongly corroborates the version of P.W. 2 regarding the events at night. On a careful and cautious re-appraisal of the evidence of P W.2 and keeping in mind the rule of prudence regarding corroboration, we are inclined to agree with the view taken by the learned Sessions Judge that corroboration is froth coming in a significant measure; we are also inclined to agree that-even in the absence of corroboration, evidence of P.W.2 could be acted upon as his evidence stands out as truthful.

The existence of strong motive on the part of accused 4 and 5, the movements of the fourth accused during the night in the company of certain others, evidence establishing attack on Narayanan Guptan during this night, the conduct of accused 4 and 5 as spoken to by P.W. 2, and the outcry of Narayanan Guptan not to kill him are clear circumstances to show that fourth accused with the assistance of one or more others was responsible for applying pressure on the nose and throat of Narayanan Guptan and causing the latter''s death. They and they alone were responsible for creating evidence suggestive of suicide by taking the body and hanging it an the tree. Satisfactory proof that M.O. 4 tile contains writing in the handwriting of fourth accused proclaiming the case of suicide is yet another strong circumstance implicating the fourth accused. An attempt is made to suggest that writing on the tile is manipulated after the arrest of the fourth accused. Fourth accused, when questioned stated that after 4 p.m. Narayanan Guptan''s relations came to him with the tile and asked him whose writing was seen in the tile. This would clearly indicate that the writing on the tile was not an after thought, or a manipulation. The motive factor as well as the conversation between accused 4 and 5 during the night, assurance of arrangement having been made and demand for money by the fourth accused and compliance by the fifth accused would clearly establish her guilt as an abettor or as an instigator. There could be no doubt that in causing the death of Narayanan Guptan, an offence u/s 302 was committed, as the application of pressure on the nose and throat could only have been with the intention of causing death.

However, there is no evidence to show who exactly applied pressure on the nose and throat of Narayanan Guptan. It may have been the forth accused or one of his companions who ever they were. Therefore fourth accused could not have been convicted u/s 302 I.P.C. simpliciter. The act could not have been Committed by one person alone. The talk and loud voices heard by P.W. 2, the fact that body would have been carried to some distance and hung on a tree would clearly indicate the presence of more than one person, though identity of others is not established. The death would have been caused only by the acts of this group of persons and acts could have been committed only in pursuance of the common intention to commit murder of Narayanan Guptan. Fourth accused, therefore'' is guilty of the offence u/s 302 I.P.C. read with section 34 I.P.C. Fifth accused is guilty of offence u/s 302 read with section 109 I.P.C. The circumstances clearly establish that the fourth accused with the help of others was responsible for hanging the dead body and arranging a tile with writing to suppress the fact of murder. This is sufficient to find him guilty u/s 201 I.P.C.

The learned Sessions Judge persuaded himself that this was a fit case to impose the extreme penalty of law on the fourth accused by describing the crime brutal and cruel. The facts and circumstances would not show that this is one of the rare cases where extreme penalty could be imposed. We are of opinion that sentence of imprisonment for life would be sufficient. We find no ground to interfere with the sentence imposed u/s 201 I.P.C. against fourth accused or conviction and sentence entered against fifth accused. In the result, we confirm the conviction and sentence entered against the fifth accused. We confirm the conviction and sentence entered against fourth accused u/s 201 I.P.C. We alter the conviction entered against the fourth accused from one u/s 302 to one u/s 302 read with section 34 I.P.C. We alter the sentence from one of death to one of imprisonment for life. The sentences entered against the fourth accused under sections 302 read with section 34 I.P.C. and 201 I P.C. will run concurrently. The referred trial as well as the appeals are disposed of in this manner.