Pushpangadhan vs State of Kerala and Another

J.B. Koshy, J.—Originally there were four accused in this case. The first accused became approver and he was examined in the case as P.W. 13. The prosecution case as correctly summarised by the Sessions Judge is as follows:

Prosecution case can be briefly stated as deceased Moideenkannu alias Thampy, S/o. Kochapparavuthar (hereinafter referred to as deceased) is a native of Neilippally Village, Punaloor. It is alleged that the deceased had promised A-2 Abraham alias Avarachan, A-3, Dr. K.T. Peter (committed suicide on 30th May 1988 and hereinafter referred to as A-3) and A-4 Pushpangadhan alias Pushpan to counterfeit Indian Currency notes for them. In this connection the deceased had received huge amounts from them for the purchase of printing press and other necessary articles, for counterfeiting Indian Currency. But he has failed to do so. He has neither supplied to them counterfeit currency as promised by him nor returned the amount. When A-2 to A-4 demanded the repayment of the amount through the first accused Aravindan (turned approver hereinafter referred to as P.W. 13) the deceased told him that he is already an accused in 4 or 5 counterfeit cases and he had to undergo sentence in connection with those cases and hence nobody could do anything against him and if found necessary he will not hesitates to implicate A-2 to A-4 in counterfeit cases. The said threat raised by the deceased was informed to A-2 to A-4 by P.W. 13 and this has created enmity in A-l to A-4 towards the deceased. Following this on 24th June 1986 at about 8.30 p.m. A-1 to A-4 had conspired to murder deceased Moideenkannu from House No. X/237 of Mulakulam Panchayat, which belongs to the second accused Abraham alias Avarachan. Following this on 25th June 1986 at about 6 a.m. A-1 (approver P.W. 13), A-3, A-2, and A-4 in pursuance of their common intention to murder deceased Moideenkannu assembled in the hall, which is situated in the east west direction inside the said house and A-4 Pushpangadhan in order to render the deceased helpless had sprinkled chilly powder on his eyes, face and A-3 caught hold of the deceased Moideenkannu by his nape and took him forcibly to the dining hall on the northern side. A-2 followed them carrying a karate belt. Then A-2 to A-4 in pursuance of their common intention to murder Moideenkannu tied the karate belt around his neck and strangulated him. Meanwhile, A-3 with the intention of murdering Moideenkannu hit him with a dangerous iron belt, which was concealed in the cover of an umbrella on his nape and back and mere by caused fatal injuries. Consequently Moideenkannu died. After the death of Moideenkannu, A-2 and A-3 had removed the pants and the shirt which were worn by the deceased from his body and with the intention of destroying the evidence of murder A-3 had put them in the hearth and burned them. Then A-2 and A-3 together removed a chain weighing 1 and 1/2 sovereigns, a ring weighing 1/2 sovereign, one seiko wrist watch and a girdle made of silver which were found in the dead body. Later the legs of the dead body was folded and the body was placed inside a gunny bag and all the accused together carried the gunny bag bundle and placed it in the dicky of Ambassador Car KLO-6907 and then all of them got into the car. A-2 drove the car to the house of A-3 Dr. K.T. Peter at Kuruppanthara. The car reached at that house at about 11 a.m. and all the accused together took the gunny bag bundle which contained the body of Moideenkannu from the dicky of the car and carried it to the house of A-3 and placed it inside a room. At about 12 in the night A-3 had untied the gunny bag bundle and cut opened the stomach of the dead body using a knife and as per the instructions given by A-3, A-1 (approver P.W. 13) took a heavy granite stone and placed it inside the gunny bag along with the dead body. Following this A-3 had tied the mouth of the gunny bag using a rope and then all the accused together carried the gunny bag bundle from the house and placed it in the dicky of the said car. Again all the accused got into the car and A-2 drove it. When the car reached at the bridge in the Moovattupuzha Vettikattumukku junction, the accused in pursuance of their common intention to destroy the evidence of murder, took the gunny bag bundle from the dicky of the car and dropped it from the bridge to the river below. The gunny bag bundle was sub-merged in the river water and till date that was not traced out.

The accused were convicted and sentenced only on the basis of the evidence of the approver, P.W. 13. P.W. 1 registered Ext. P-1 F.I.R. on the basis of Ext. P-2 report, on 24th June 1988. In that report, suspicion against the accused is not mentioned. P.W. 2 is the wife of A-2, P.W. 3 is the mother of A-2 and P.W. 4 is the wife of A-3. P.W. 5 is the mother of P.W. 6, who is alleged to be a keep of the deceased. P.W. 2 to P.W. 6 were declared hostile and their evidence are of no way helpful to the prosecution. All other material witnesses, other than the official witnesses, were declared hostile in this case.

Now we will consider the evidence of P.W. 13. He is an accomplice. He was given pardon after complying with the provisions of Section 306 of the Criminal Procedure Code. The very object of this provision is that if his evidence is accepted, other co-accused can be convicted. But approver''s evidence has to satisfy a double test. (1) His evidence must show that he is a reliable witness like any other witness and (2) the approver''s evidence must receive sufficient corroboration as held by the Apex Court in various Judgments. See Saravanabhavan and Govindaswamy Vs. State of Madras, and Piara Singh Vs. The State of Punjab, . The law with regard to appreciation of approver''s evidence is based on Sections 133 and 114 illustration (b) of the Indian Evidence Act. Those sections are quoted below:

Accomplice.--An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Court may presume existence of certain facts.-- * * *

Illustrations:

The Court may presume-

(a) * * *

(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;

It is true that an accomplice is a competent witness and if his evidence inspires confidence in the mind of the Court, he can be believed and on his evidence guilt can be inferred. However, as a matter of prudence, the Court will always insist on corroborative evidence. Even though no direct corroboration is necessary, there should be some corroboration by circumstantial or additional evidence to inspire confidence of the Court that the approver is deposing true facts in all material particulars to connect the accused with the crime. The Supreme Court in Sheshanna Bhumanna Yadav Vs. State of Maharashtra, , held that it is not only corroborated with some of the circumstances but also must confirm that part of the testimony which suggest that the crime was committed by the accused. In paragraph 12 of the Judgment, the Apex Court observed as follows:

The law with regard to appreciation of approver''s evidence is based on the effect of Sections 133 and 114 illustration (b) of the Evidence Act, namely, that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. The warning of the danger of convicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to die crime charged and someone who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required. Corroboration must connect or tend to connect the accused with the crime. When it is said that me corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated. That evidence must, confirm that part of the testimony which suggests that the crime was committed by the accused. If a witness says that the accused and he stole the sheep and he put the skins in a certain place. The discovery of the skins in that place would not corroborate the evidence of the witness as against the accused. But if the skins were found in the accused''s house, this would corroborate because it would tend to confirm the statement that the accused had some hand in the theft.

In Revinder Singh v. State of Haryana AIR 1975 S.C. 858, the Supreme Court observed as follows:

An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in Court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by any approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt....

In this case none of the materials brought out by the approver was corroborated. Absolutely no material or circumstance or indirect evidence is available to corroborate the evidence of P.W. 13 approver.

There was also considerable delay in getting his statement. When P.W. 13 was examined in Court he stated that he was arrested on 11th May 1988. The arrest was recorded by the police on 7th July 1988. He also deposed that his statement u/s 164 was taken after about two months of his arrest. On 12th July 1988 only Section 164 statement of the approver was taken before the Magistrate Court. Only on 2nd September 1995 he was declared as approver and final report was filed only on 28th February 1996. A-1 was examined only on 13th April 1999 before the Magistrate Court u/s 306(4) and the case was committed to the Sessions Court only in 1999. P.W. 13 gave evidence before Court on 2nd May 2003. From the contradictions and omissions proved and marked in this case, it is seen that every time there is improvement of the evidence of the accomplice from 161 statement, 164 statement, 306 deposition and deposition at trial and the undue delay in getting the statement of approver years after the occurrence and much after arrest itself is very fatal and cause doubts in the evidence of the approver. Minute details disclosed were disputed by the approver only when he was examined in Court after about one and a half decades of the incident. In Rampal Pithwa Rahidas and Others Vs. State of Maharashtra, , in paragraph 31 of the Judgment the Supreme Court observed as follows:

The statement of the approver at the trial recorded more than three years after the occurrence, is so detailed that it is difficult to believe its authenticity particularly when it also travels far beyond what was stated by the approver in his confessional statement recorded u/s 164 Code of Criminal Procedure only a few days after the occurrence. It is humanly not possible for an illiterate rustic person to remember all such minute details as have been given by the approver detailing even the sequence of events during the alleged occurrence.

The above observations are applicable on all respect in this case.

According to the Session''s Judge recovery of M.O. 1, M.O. 2 and M.O. 3 corroborates the evidence of the approver. M.O. 1 is the gold chain, M.O. 2 is the gold ring and M.O. 3 is the silver girdle. All the above articles were said to have been used by the deceased and those articles were not identified by anybody. In chief examination P.W. 13 stated that the above articles belonged to the deceased. But in cross-examination he stated that those articles were not shown to him by the police and he cannot remember any definite marks on those articles. P.W. 11, son of the deceased also did not identify those articles. There is absolutely no evidence connecting the deceased or the accused with those articles. M.O. 1 and M.O. 2 were recovered from a financier, P.W. 8, who was declared hostile. He deposed that police has taken the above from him, but it was entrusted to him not by the accused but by one Jose, who is doing spare parts business in the nearby place. Therefore, apart from the fact that M.O. 1 and M.O. 2 were not identified as that of the deceased, recovery of the same will not connect any of the accused in this case. M.O. 3 was recovered from P.W. 12, a jeweller. He was also a hostile witness it is very difficult to believe that for two years he kept the girdle without making any alteration and without selling the same. There is absolutely no evidence to show that the above silver girdle belonged to the deceased. Merely because wife of A-2 deposed that A-2 know karate or he was having a black ambassador car, she is not connecting the commission of crime or corroborating the evidence of P.W. 13. Further, according to the police charge as well as the Court charge, deceased was murdered by using a white karate belt and it was burned by A-3. M.O. 5 karate belt said to have been recovered from the house of A-2 is a green belt. Therefore, that contradicts the alleged charge-sheet. M.O. 6 cement portion said to have been taken from A-3 ''s residence though blood stained will not connect A-2 and A-4 with the incident. Further it is very difficult to believe that M.O. 6 was taken out only on 7th July 1988 and the alleged incident was in 1986. If the incident happened there, for two years it remained as same in a residential house cannot be accepted. Another is M.O. 11 watch. That watch is also not identified by anybody as that of the deceased. Even though P.W. 13 in chief examination stated that it belonged to the deceased, in cross-examination he stated that deceased had worn many type of watches including ladies watches and he is not remembering any identification marks. It is stated that the watch was recovered from P.W. 15, but P.W. 15 was also a hostile witness. Further, P.W. 13 during cross-examination stated that he handed over the watch to the police. That shows that P.W. 13''s evidence is not corroborated in any particulars. So recovery of watch as alleged by the investigating officer is totally incorrect.

A reading of the evidence of P.W. 13 would show that his endeavour was to show that he was not involved in the crime. He deposed before the Court that he has no part in the crime. He was a silent spectator. He was asked to go to the house of Abraham in a car and he accompanied the other accused in the car. He also deposed that if he knew that it was for killing of the deceased he would not have gone there. He further stated that at the time of incident, he took some brandy from the wife of A-2 and he slept. In 161 statement he stated that he also helped the other accused in putting the dead body of the deceased into a gunny bag. Before Court he deposed that he was a silent spectator and he has no part in the crime. P.W. 13 when cross-examined has also stated as follows:

He cannot be made as an approver as he has not implicated himself in any way with the murder. The Apex Court in Joga Gola Vs. State of Gujarat, , held as follows:

...The High Court while considering the evidence of die approver completely overlooked two important infirmities which appeared in the evidence of the approver and which were sufficient to discredit the entire testimony of the approver apart from the question of corroboration. In the first place, it would appear from the evidence of the approver that his confession which preceded the pardon as a result of which he became approver was wholly exculpatory and the approver did not implicate himself in any way in the murderous assault on the deceased persons.

Here, his evidence is wholly exculpatory and in no way implicating himself with the murder. At the maximum, his evidence mcriminated him with the offence of counterfeiting notes which is not a subject-matter of the case. Hence declaring him as an approver itself was wrong.

P.W. 13 deposed that deceased had lot of enemies and he was involved in large number of counterfeit cases. He also stated mat he asked one Krishnamoorthy to involve in the counterfeiting of notes and Krishnamoorthy stated that he will not be involved if the deceased is there. He also admitted that he deposed before the police that Krishnamoorthy told him that he will not go to this job unless Thampy (deceased) is killed. He stated as follows:

Apart from the fact that P.W. 13''s evidence is not corroborated in any of the particulars, there is no circumstantial of iota of evidence to connect the accused with the alleged killing of the deceased. According to P.W. 13 the dead body was thrown in the river near Vettikattumukku bridge. D.W. 1, the Village Officer has deposed that Vettikattumukku bridge is in Thalayolaparambu Emakulam road. P.W. 13 also stated in cross-examination that before reaching the bridge on the side of the road for two kilometres there is river side. Even if that is taken into account it can be only Vadayar bridge and not Vettikattumukku bridge and P.W. 13''s evidence is full of contradictions and it cannot inspire confidence of the Court and is fully unreliable.

Another circumstance which compelled us to acquit the accused is that even the death of Moideenkannu alias Thampy is not proved. As held by the Apex Court in Ram Chandra and Another Vs. State of Uttar Pradesh, , Rama Nand and Others Vs. State of Himachal Pradesh, , and in Ram Gulab Chaudary v. State of Bihar AIR 2001 S.C.W. 3802, that even though it was not necessary for conviction that a corpus delicti should be found, still there must be other clear and reliable evidence of murder. In this case apart from the inconsistent version of P.W. 13, whose evidence is found to be unreliable, that Thampy was murdered, there is no other evidence to show that Thampy died. P.W. 11 is the son of the deceased. He was a charge witness as C.W. 3. He was examined in court in April 2003. In chief examination he stated that he has not seen his father for ten years from that day. He stated that at that time he was studying in 9th standard. He further stated that his father used to wear gold ring and chain. But he did not identify M.O. 1 and M.O. 2. He also stated that with regard to counterfeiting notes many people used to visit his house, but accused had not visited his house. He also stated that he has not stated to the police that he has not seen his father after June 1986. He also stated that in 1990 his father came to his house and at that time he told that his visit should not be revealed to anybody else as lot of cases are pending against him. He also stated that his mother left to Gulf in 1992. Immediately before that also his father came there and he was categorized that his father was alive in 1992. He stated that in 1992 when his father came also he worn gold ring and chain. He deposed as follows:

In view of P.W. 11 ''s evidence and in the absence of any material to show that actually Moideenkannu alias Thampy died, it is very difficult to believe the death of Moideenkannu. Investigating officer also deposed that several cases were pending against Thampy and he was not aware of the progress of those cases. It was suggested by the counsel for the accused that possibility of he undergoing sentence in some other States or his going abroad etc. cannot be ruled out. From the evidence adduced, we are not convinced that there is evidence of his death. In any event, it cannot be confirmed that Moideenkannu was murdered as alleged by the prosecution. The prosecution failed to prove the case beyond reasonable doubt. In the above circumstances, the conviction and sentence passed on A-2 and A-4 are set aside and they are acquitted. They should be released from jail forthwith, if they are not required in any other case.

Both the appeals are allowed.