Surendran vs State Of Kerala

P.B.Suresh Kumar, J.

Appellants are the accused in S.C.No.588 of 2017 on the files of the Second Additional Sessions Court, Manjeri. Among them, the appellant in Crl.A.No.646 of 2022 is the first accused and the appellant in Crl.A.No.85 of 2021 is the second accused in the case. The appellants stand convicted and sentenced for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (IPC). They challenge in these appeals, their conviction and sentence in the said case.

The dead body of one Nazarathulla @ Cheriyappu was found lying in a pool of blood at about 8 a.m. on 30.08.2016 in the temporary shed of a granite trader in his business establishment located on the southern side of Calicut-Nilambur–Goodallur Road at the place called 'Kodathipadi'. The deceased was a person engaged in petty jobs and he used to sleep in public places in and around Kodathipadi at night. A crime was registered by Nilambur Police on the basis of the information furnished by the father-in-law of the deceased on 30.08.2016 and after investigation, a final report was filed against the accused alleging commission of the offence punishable under Section 302 read with Section 34 IPC.

The accused are also persons who were engaged in petty jobs. They used to work with the deceased as well. The accusation against them in the final report is that between 11 and 12 at night on 29.08.2016, in furtherance on their common intention to do away with the deceased, the accused caused his death by putting concrete blocks on his head.

On the accused pleading not guilty of the charge framed against them on committal of the case for trial to the Court of Session, the prosecution examined 20 witnesses as PW1 to PW20 and proved through them 25 documents as Exts.P1 to P25. The prosecution has also caused the witnesses examined on its side to identify the material objects, of which MO2 series were the concrete blocks seized from the scene of occurrence, MO3 series were the clothes worn by the first accused at the time of his arrest and MO4 series were the clothes worn by the second accused at the time of his arrest. The accused were, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating circumstances brought out by the prosecution in its evidence and they denied the same. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. The accused did not adduce any evidence. Thereupon, on an appraisal of the materials on record, the Court of Session found the accused guilty of the offence alleged, convicted and sentenced them to undergo imprisonment for life and pay a fine of Rs.50,000/-each.

Heard the learned counsel for the accused as also the learned Public Prosecutor.

The point that arises for consideration is whether the prosecution has established the guilt of the accused beyond reasonable doubt.

Before proceeding to consider the point formulated for decision, it is necessary to consider whether the case on hand is a case of homicide, although no argument was raised by the learned counsel for the accused in that regard. PW8 is the doctor who conducted the autopsy of the body of the deceased. PW8 narrated the ante-mortem injuries noted by him on the body at the time of autopsy and opined that the death was due to the head injury suffered by the deceased and the same was one that could be caused by hit with a heavy blunt object. PW8 also deposed that MO2 series concrete blocks could produce the injuries suffered by the deceased. The evidence aforesaid of PW8 was not challenged in cross-examination. In the light of the evidence tendered by PW8, there cannot be any doubt that the death of the victim was a homicide and the Court of Session was, therefore, justified in proceeding to deal with the case on that basis.

Let us now consider the evidence let in by the prosecution to prove the guilt of the accused. As there was no eye witness to the occurrence, the prosecution attempted to prove the guilt of the accused through circumstantial evidence. In order to establish the circumstances, the prosecution relied on the oral evidence tendered by PWs 3 to 7 and Ext.P25 series reports of the Forensic Science Laboratory. PW3, a friend of both the accused and deceased is the person who had last seen the deceased alive. PW3 is also a person who used to work with the accused and the deceased. PW3 deposed that all of them were friends and they used to consume liquor together. PW3 also deposed that he saw the deceased by about 9 p.m. on 29.08.2016 in a shed belonging to one Moidu near the beverage shop at Kodathipadi and they consumed liquor together in the said shed. PW3 also deposed that later he came to the Kodathipadi waiting shed and slept there. PW3 also deposed that while he was sleeping, the accused came to the said waiting shed and enquired with him as to the whereabouts of the deceased and he informed them that the deceased would be available at the shed of Moidu. PW3 also deposed that the distance between the said shed and the place where the body of the deceased was found would be approximately 50 meters. The only fact that was brought out in the cross-examination of PW3 was that the deceased used to consume 'ganja' also.

PW4, another friend of both the accused and deceased is also a person who used to work with the accused and the deceased. PW4 deposed that the accused told him that they had beaten the deceased to death. PW4 thereafter clarified that what was informed to him by the accused was that the deceased was beaten down by them first and it is thereafter that they put concrete blocks on his head. PW4 also deposed that the accused informed him that they did so on account of the dispute concerning sharing of money. PW4 also deposed that there was a physical altercation on an earlier occasion between the first accused on one side and the deceased on the other side and the deceased suffered an injury on his ear in the said altercation and that it was PW3 who took the deceased then to the hospital. PW4 also deposed that the second accused used to sell ganja and the deceased had the habit of telling others about the same once he consumes liquor. It was also deposed by PW4 that the second accused maintained enmity towards the deceased on account of the same. PW5 is a person who is running an eatery at Nilambur town. PW5 had previous acquaintance with the accused. PW5 deposed that the accused used to have food from his eatery and on 29.08.2016 between 9 p.m. and 10 p.m., they came to his eatery and had food. PW5 also deposed that they picked up a quarrel on that day with the person who came there and when PW5 dissuaded them from the quarrel, the accused moved towards Kodathipadi. PW6 is a person who is running an eatery at Kodathipadi. PW6 also had previous acquaintance with the accused. PW6 deposed that at about 11 p.m. on 29.08.2016, he saw the accused moving towards the place called 'Vadapuram' and returning after an hour and a half when he was closing down his eatery. PW7 was the Excise Inspector attached to Nilambur Excise Circle Office during August, 2016. PW7 deposed that he summoned the second accused on 29.08.2016 to his office based on the information received by him that the second accused is engaged in the sale of ganja.

As already noticed, Ext.P25 series are the reports of the Forensic Science Laboratory, of which one pertains to the result of the examination for blood and human tissue, one pertains to the examination of hairs done at the Biology Division of the laboratory and the other pertains to the examination of blood stains and hairs done at the DNA Division. As the reports are marked collectively as Ext.P25 series, for convenience, the same are referred to hereunder as Exts.P25(a), 25(b) and 25(c) respectively. Items 10 to 13 referred to in Ext.P25(a) are MO3 and MO4 series clothes worn by the accused at the time of their arrest and items 18 and 19 referred to therein are MO2 series concrete blocks. It is stated in Ext.P25(a) report that MO2, MO3 and MO4 series contain blood which are insufficient for determining the origin and group. Ext.P25(b) report recites that the hairs in item No.9 therein, namely human scalp hairs collected from the scene of occurrence are similar to the sample scalp hairs of the first accused. Similarly, in Ext.P25(c) report, it is stated that the blood stains in item No.10 referred to therein namely, the T-shirt worn by the first accused at the time of his arrest belong to the deceased and item No.9 therein, namely the human scalp hairs collected from the scene of occurrence are that of the first accused.

A close reading of the impugned judgment indicates that it is based on the evidence tendered by PWs 3 to 7 that the Court of Session came to the conclusion that the prosecution has established the guilt of the accused beyond reasonable doubt, even though the Court did not accept the evidence tendered by PW4 as regards the confession stated to have been made by the accused to him. There is no mention in the impugned judgment about Ext.P25 series reports of the Forensic Science Laboratory. Be that as it may, we have meticulously read the evidence tendered by PWs 3 to 7. We do not find any reason to disbelieve the evidence tendered by the said witnesses except the part of the evidence tendered by PW4 as regards the confession stated to have been made by the accused to him. As regards the said part of the evidence tendered by PW4, we are also of the view that it is not safe to rely on the same as has been done by the Court of Session. As the prosecution is entitled to contend that the Court of Session is not right in ignoring the said part of the evidence tendered by PW4 for the purpose of supporting the impugned judgment, it is necessary for us to indicate our reasons for having endorsed the view taken by the Court of Session in this regard. Similarly, we are of the view that the evidence tendered by PW6 needs to be explained and likewise, we need to take note of Ext.P25 series reports also in the matter of considering the point formulated for decision.

The prosecution relies on the evidence tendered by PW4 as an extra-judicial confession. After having made an elaborate survey of the various decisions rendered by the Apex Court on the question as to the reliability of extra-judicial confessions, it was held by the Apex Court in Sahadevan v. State of T.N., (2012) 6 SCC 403 that even though an extra-judicial confession is a weak piece of evidence and needs to be examined by the court with greater care and caution, the same is capable for forming the basis of a conviction, if made voluntarily and truthfully. It was also held by the Apex Court in the said case that an extra-judicial confession shall be consistent with the remaining evidence let in by the prosecution. Paragraph 16 of the said judgment reads thus:

“16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law.”

Reverting to the facts of the case on hand, the evidence tendered by PW4 in this regard reads thus:

“A1 & A2 പറഞ, ച റ യ പവ ച  അട ചച  ന. അവ  ച  ന എന ണ  പറഞത . അട ചവ ഴ യ ട  , തലയ   hollow bricks ഇടചവന പറഞ. പപസ വ ത ചപ$ ഴണ യ വ കത കച)തട ന ചണന പറഞ.”

Even though it is not the requirement of law that a witness has to reproduce the exact words spoken to by the accused while giving evidence of an extra-judicial confession, if the exact words of the accused are not reproduced by the witness, according to us, the evidence ought to be scrutinized with greater care and caution. As explicit from the extracted evidence of PW4, he has not reproduced the exact words spoken to by the accused. It is seen that the initial version of PW4 was that the accused told him that they had beaten the victim to death. But, it is later clarified by PW4 that what was told to him by the accused was that they had beaten down the deceased and then put hollow bricks on to his head. Even though it would appear that there is no inconsistency in the said statements at the first blush, on a close scrutiny of the evidence tendered by PW4, it appeared to us that PW4 was giving evidence in tune with the prosecution case. The latter part of the evidence tendered by PW4 is found to be suspicious, as we feel that PW4 was giving evidence in a manner as tutored by somebody else. Since the latter part of the evidence of PW4 is found to be suspicious, we are of the view that it is not safe to place reliance on the former part of the evidence as well. We take this view also for the reason that the evidence tendered by PW4 is not fully consistent with the remaining evidence tendered by the prosecution. What was spoken to by PW4 as informed to him by the accused is that they caused the death of the victim on account of the dispute that arose between them in connection with sharing of money, whereas the very case of the prosecution is that the accused caused the death of the victim on account of their enmity towards the deceased for having informed the excise officials about the illicit sale of ganja by the second accused.

As regards the evidence tendered by PW6, it is to be noted that what was spoken to by him was that he saw the accused moving towards 'Vadapuram' from Kodathipadi at about 11 p.m. on 29.08.2016 and saw them returning after about an hour and a half. During cross-examination, PW20, the Investigating Officer deposed that what was stated to him by PW6 was that PW6 saw the accused proceeding towards the direction of the beverage shop and after sometime, they returned and proceeded towards Nilambur direction. The accused have no case that the said versions of PW6 are contradictory. In other words, the beverage shop at Kodathipadi is one situated on the way to Vadapuram from Kodathipadi. The evidence tendered by PW3 indicates that the place where the body of the deceased was found is one located about 50 meters away from the shed of Moidu where he had liquor with the deceased on the date of occurrence. In other words, the evidence tendered by PW6 is that he saw the accused moving towards the direction of the scene of occurrence and returning after about an hour and half towards Nilambur direction.

Coming to Ext.P25 series reports of the Forensic Science Laboratory, it is necessary to note that the accused have not offered any explanation as to the cause of presence of blood stains on their clothes, even though, its origin and group could not be identified by the Laboratory due to insufficiency of blood on the said clothes. It is now settled that incriminating circumstances of this nature cannot be ignored merely for the reason that the origin and the group of the blood stains could not be found by the Laboratory [See Kiriti Pal v. State of W.B., (2015) 11 SCC 178]. Similarly, the first accused has not offered any explanation as to the cause of presence of blood stains of the deceased on MO3 series clothes worn by him at the time of his arrest and as to the cause of the presence of his hairs at the scene of occurrence.

Thus, the circumstances established by the prosecution are the following:

(i) That the accused, deceased and the witnesses, PW3 and PW4, were persons known to each other and engaged in petty jobs in and around the place called Kodathipadi.

(ii) That the accused, deceased and the witnesses, PW3 and PW4, consumed liquor together.

(iii) That the second accused is a person who is engaged in the illicit sale of ganja and that the deceased used to tell others about the said conduct of the second accused, on the deceased consuming liquor.

(iv) That the second accused maintained a grudge against the deceased on account of the conduct of the deceased telling others that he is engaged in the illicit sale of ganja.

(v) That there was a physical altercation between the deceased and the first accused on a previous occasion and the deceased suffered an injury to his ear in the said occurrence.

(vi) That PW7, the Excise Inspector summoned the second accused to his office on the date of occurrence, namely 29.08.2016 in connection with the information received by him that the second accused is engaged in the illicit sale of ganja.

(vii) That the deceased consumed liquor with PW3 a few hours prior to the occurrence at a shed near the beverage shop at Kodathipadi.

(viii) That the accused had food from the eatery of PW5 at Nilambur Town between 9 p.m. and 10 p.m. on the date of occurrence and thereafter, they proceeded towards Kodathipadi.

(ix) That the accused enquired with PW3, who was sleeping in a waiting shed at Kodathipadi after 9 p.m. on the date of occurrence as to the whereabouts of the deceased and PW3 informed them that the deceased would be available in the shed near the beverage shop at Kodathipadi.

(x) That PW6 saw the accused moving towards the direction of the beverage shop at Kodathipady at about 11 p.m. on the date of occurrence and returning to Kodathipadi after about an hour and a half.

(xi) That the body of the deceased was found in a shed which is 50 metres away from the beverage shop at Kodathipady.

(xii) That the accused have not offered any explanation as to the cause of the presence of blood stains on the clothes worn by them at the time of their arrest, even though its origin and group could not be detected by the Laboratory.

(xiii) That the first accused has not offered any explanation as to the cause of the presence of the blood stains of the deceased on the clothes worn by him at the time of his arrest and also as to the cause of the presence of his hairs at the scene of occurrence.

It is now trite that in a case of circumstantial evidence, there must be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. The circumstances aforesaid, according to us, would satisfy the said principle, for the same would not only form a chain so complete without leaving any reasonable ground for the conclusion consistent with the innocence of the accused, but also show that in all human probability, the death of the victim was caused by the accused.

Let us now consider the arguments advanced by the learned counsel for the accused. As regards the evidence tendered by PW3 that the accused enquired with him the whereabouts of the deceased a few hours prior to the occurrence, the argument advanced by the learned counsel for the second accused is that the same cannot be considered as an incriminating circumstance, as nobody had seen the accused going to the scene of occurrence as clarified by PW20, the Investigating Officer in his evidence. Similar are the arguments advanced by the learned counsel for the second accused as regards the evidence tendered by PWs 5 and 6 as well. No doubt, the evidence tendered by the said witnesses may not be incriminatory, if viewed independently, but what is to be seen by the court in a case of this nature is whether the circumstances brought out in the evidence of the witnesses together would establish the guilt of the accused. What was spoken to by PW20 is that no one had seen the accused proceeding to the scene of occurrence. PW20 did not say that no one had seen the accused proceeding to the direction of the scene of occurrence. As such, the evidence tendered by the said witness cannot be said to be inconsistent with the evidence tendered by PWs 3, 5 and 6. As regards the evidence tendered by PW7, the argument advanced by the learned counsel for the second accused is that PW7 has not furnished any official record to show that the second accused was summoned by him to his office on the basis of any information that he is engaged in the illicit sale of ganja. According to the learned counsel, in the absence of any documentary evidence in that regard, the oral evidence tendered by PW7 cannot be acted upon to hold that the second accused was summoned by PW7 on the date of the occurrence. It is seen that PW7 was examined to prove the motive of the second accused, namely to cause the death of the victim. Of course, had PW7 made available the records maintained by him in his office for summoning the second accused, the evidence tendered by him would have been more reliable. But, merely for the reason that the records have not been made available, it cannot be contended that the evidence tendered by PW7 is to be ignored, especially when no reason, whatsoever, was suggested to PW7, an official of the Excise Department of the State Government to give false evidence against the second accused in a case of this nature.

As regards the reports of the Forensic Science Laboratory, the arguments advanced by the learned counsel for the second accused is that the various objects forwarded for forensic examination were not properly packed and sealed and therefore, the chain of custody as also safe custody of the said objects cannot be said to have been proved. It was also contended by the learned counsel that all the objects which were subjected to forensic examination were forwarded to the Jurisdictional Magistrate only after the arrest of the accused, indicating that the possibility of tampering with the objects cannot be ruled out. The learned counsel reinforced the said submission pointing out that the prosecution has not let in any evidence to show that the objects stated to have been seized and forwarded for forensic examination, especially the clothes of the accused were in a tamper free condition during the period between the date of the arrest of the accused and the date on which the objects were forwarded to the Jurisdictional Magistrate. It was also argued by the learned counsel for the second accused that Exts.P9 and P10 certificates issued by PW16, the doctor at the Medical College Hospital, Manjeri do not indicate that the blood and hair samples as also the nail clippings of the accused were taken by the said doctor. According to the learned counsel, the authenticity of the hair samples referred to in Ext.P25 series reports are, therefore, questionable. It was also argued by the learned counsel that even if it is taken that the hair samples obtained from the first accused is found matching with the hair samples taken from the scene of occurrence, the authenticity of the samples sent for examination stands questionable. In order to reinforce the said arguments, the learned counsel relied on a recent decision of the Apex Court in Prakash Nishad v. State of Maharashtra, 2023 SCC OnLine SC 666 in which it was held that the chain of custody implies that right from the time of taking the sample, to the time its role in the investigation and process subsequent, is complete, each person handling the said piece of evidence must duly acknowledge in the documentation so as to ensure that the integrity is uncompromised. The learned counsel for the first accused endorsed all the aforesaid arguments of the learned counsel for the second accused. In addition, it was argued by the learned counsel for the first accused that even if it is assumed that the hairs collected from the scene of occurrence have been properly packed and sealed, it is not discernible from Ext.P25(c) report of the DNA division that the hairs collected from the scene of occurrence are the hair samples of the first accused.

No doubt, the chain of custody and the safe custody of the various objects intended to be used as evidence after forensic examination needs to be proved by the prosecution. In the case on hand, as pointed out by the learned counsel for the second accused, the material objects have been forwarded to the Jurisdictional Magistrate only after the arrest of the accused. Even though Ext.P22 report is seen filed by the Investigating Officer before the Jurisdictional Magistrate to the effect that MO2 series concrete blocks seized from the scene of occurrence need to be shown to the doctor who conducted the autopsy of the deceased to justify the delay in forwarding the said material objects to the Jurisdictional Magistrate, we do not find any justification for not forwarding the remaining objects, including the objects collected by the Scientific Officer attached to the District Crime Records Bureau from the scene of occurrence at the time of preparation of the scene mahazar. But, at the same time, merely for the reason that the material objects have been forwarded to the Jurisdictional Magistrate only after the arrest of the accused, it cannot be presumed that the material objects have been tampered with. In the present case, the relevant material objects are the clothes worn by the accused at the time of their arrest, the hairs collected by the Scientific Officer from the scene of occurrence and the hair samples of the first accused. As pointed out by the learned counsel for the second accused, there is nothing on record to indicate that the clothes worn by the accused at the time of arrest were packed and sealed while effecting the seizure of the same, even though Ext.P25 series reports recite that the same were in a packed and sealed condition when they were received by the Forensic Science Laboratory. PW20, the Investigating Officer in the case is the person who gave evidence regarding the seizure of the clothes worn by the accused at the time of their arrest. The accused have not cross-examined PW20 regarding the chain of custody and the safe custody of the clothes worn by them at the time of their arrest. Inasmuch as the accused have not challenged the evidence tendered by PW20 in this regard, according to us, the contention as regards the safe custody of the said material objects is only to be rejected. As regards the hairs collected from the scene of occurrence, the witness examined by the prosecution is PW11. PW11 is a civil police officer attached to the office of the Circle Inspector of Police, Nilambur. PW11 deposed that the various objects collected by the Scientific Assistant from the scene of occurrence were handed over by the Scientific Assistant to the Investigating Officer and that PW11 witnessed the same. PW11 also identified his signature in Ext.P6 mahazar prepared in this regard. PW11 was not cross-examined on the aspects covered by his evidence or as regards the recitals contained in Ext.P6 mahazar. The only fact that was brought out in the cross-examination of PW11 is that the material objects were handed over at the office of the Investigating Officer and not at the scene of occurrence. Ext.P6 mahazar indicates that all the objects collected by the Scientific Assistant Officer from the scene of occurrence were packed and sealed and what was handed over by her to the Investigating Officer are seven sealed packets. Ext.P23 is the list of properties prepared by the Investigating Officer while forwarding the material objects to the Jurisdictional Magistrate. Ext.P23 also indicates that the sealed packets handed over to the Investigating Officer by the Scientific Assistant were forwarded in the same condition to the Jurisdictional Magistrate. Ext.P25 series reports of the Forensic Science Laboratory also indicate that the aforesaid seven packets were received by the Forensic Science Laboratory in a packed and sealed condition. As regards the hair samples collected from the first accused, the witness examined on the side of the prosecution is PW16, a senior physician attached to the Medical College Hospital, Manjeri. PW16 deposed that he collected the hair samples of the accused and handed over the same to the police. There was no challenge to this evidence tendered by PW16. It is seen that PW16 handed over the hair samples and other objects to PW13 who has taken the accused before PW16 for the said purpose. PW16 was not cross-examined as regards the condition in which the hair samples of the first accused and other objects were handed over by him to PW13. PW13 deposed that he handed over the hair samples of the first accused and other objects to the Investigating Officer. PW13 was also not cross-examined as regards the condition in which the hair samples of the first accused and other objects were received by him from PW16. The only fact that was brought out in the cross-examination of PW13 is that no mahazar was prepared in this regard. True, a mahazar could have been prepared while collecting the hair samples of the first accused and other objects by PW13, indicating the condition in which the objects were handed over by PW16. But, merely for the reason that no mahazar was prepared, the evidence tendered by PW16 and PW13 cannot be ignored. That apart, Ext.P23 list of properties indicates that the hair samples of the accused and other objects have been handed over to PW13 in a sealed packet with the title “Rajkumar @ Kannan, 33/16, ML/18/DNA/16 Dept of forensic med Govt MCH Manjeri, crime 528/16 Nilambur. Material: Blood, Hair, Nail clipping.” Ext.P23 has been proved in the proceedings by PW20, the Investigating Officer. There is no challenge in the cross-examination against the evidence tendered by PW20 in that regard. There is, therefore, no substance in the argument advanced by the learned counsel for the second accused that the prosecution has not established the chain of custody and the safe custody of the hair samples of the second accused.

A reading of Ext.P25(a) report shows that packet No.16 referred to therein labelled as blood, hair and nail clippings of the first accused, contained three items, of which item namely, 16(b) was forwarded to the Biology Division. Ext.P25(b) report of the Biology Division shows that item 16(b) forwarded to them contained a tuft of black hairs in a paper packet. It is the very same object that is referred to in Ext.P25(c) as well. There is, therefore, no substance in the argument advanced by the learned counsel for the first accused that it is not discernible from Ext.P25 series reports that what was compared with the hairs collected from the scene of occurrence are the hair samples of the first accused.

In the facts and circumstances, there is no merit in the appeals and are accordingly, dismissed.