Thanuvan Retnakaran vs State

Govinda Pillai, J.—Accused 1 and 2 are the appellants. The 1st accused was convicted under Ss. 364 and 302 read with S. 114, I.P.C. and was sentenced to transportation for life and to a fine of Rs. 50 under S. 302/114 and to rigorous imprisonment for seven years and to a fine of Rs. 25 under S. 364, I.P.C. The sentences were to run concurrently. The 2nd accused was convicted under Ss. 302 and 364 read with S. 114, I.P.C. and sentenced to transportation for life an to a fine of Rs. 50 under S. 302, I.P.C. and to undergo rigorous imprisonment for five years and to a fine of Rs. 25 under S. 364 read with S. 114, I.P.C. These sentences also were to run concurrently.

The prosecution case against the two accused was as follows: Sumathi, the unmarried daughter of P.W. 1, was seduced by the 1st accused who was a neighbour of hers and the son of a rich man of the locality. As a result of this she got pregnant. The 1st accused with the help of the 2nd accused, a neighbour and companion, attempted to procure an abortion. But this failed. The 1st accused had given Sumathi all sorts of hopes and promised to accept her as his wife. But when the attempt to bring about the abortion failed he began to back out. By Makaram 1128, Sumathi had advanced six months in pregnancy and this fact began to gain currency in the locality.

Sumathi herself mentioned this to some of her friends and neighbours and also the fact that the 1st accused was responsible for the same. She also stated that if the 1st accused refused to accept her as his wife she would go to his house and commit suicide by hanging. The news that Sumathi was pregnant came to the notice of her father P.W. 1. Though Sumathi had denied this to her mother, the parents were able to ascertain the fact through Sumathi''s friends, particularly P.W. 5, who was her uncle''s daughter. Out of shame P.W. 1 left the house and this aggravated the feelings of Sumathi.

The 1st accused also was absent from the locality as he had arranged to stage a drama in a place called Thittuvila a few miles distant from his house. When the 1st accused was not to be seen for a number of days Sumathi began to enquire about his whereabouts. She also told a neighbour P.W. 10 who was an employee in the shop conducted by P.W. 11 that she would like to see the 1st accused. P.W. 10 mentioned this to P.W. 11. The shop of P.W. 11 was near the Karottu junction on the M.C. Road. Sumathi''s house was about a mile to the east of that junction.

When the 1st accused returned from Thittuvila, he came to know of the developments and also of Sumathi''s talk with P.W. 10. On 12-6-1128 corresponding to 25-1-1953, the 1st accused met Sumathi on his way to Karottu junction. He consoled her and promised to take to a separate house which he had arranged for her stay. This was a deliberate misrepresentation made to decoy her to a distant and secret place for the purpose of putting an end to her life.

On the 27th January the 1st accused again met Sumathi and asked her to be ready to go to her new house and wait for him for the purpose at the secret place near her house. Accordingly, she left her house in the evening saying that she was going to her mother''s elder sister''s house. She waited for the 1st accused at the appointed place. At about 8 P.M. accused 1 and 2 came and took her to the forest reserve near the place called Mylamoodu and murdered her there. Mylamoodu is 10 1/2 miles away from Karottu junction and 2 1/4 miles away from Palode.

There is a road joining Karottu junction and Palode, and Kallara and Pangode are important places on the way. From Pangode to Palode is the forest reserve on either side of the road. At Mylamoodu there is a bridge and near that a foot-path that goes into the interior of the forest. They took her along the foot-path to a distance of about 100 feet and from there to a spot about 40 feet to the south-east.

When they reached the spot Sumathi''s hands were tied behind her with her upper cloth. The 1st accused then throttled her and she fell down. He kept her in that position for some time by pressing his hands on her neck; but her breathing did not stop. It is the prosecution case that the 1st accused then got up and asked the 2nd accused to cut her neck with the chopper M.O. No. 11 which they had brought with them. The 2nd accused cut her neck with it and killed her. When the 2nd accused was inflicting the cut the 1st accused was keeping her neck in position by pressing her hair firmly under his feet.

After murdering her the chopper was thrown into the forest reserve. They left the place immediately and hurried back to their homes as there was not much time for day-break. The occurrence took place during the early hours of 28-1-1953. The dead body remained there till the morning of the 30th when P.W. 27 a Kanikkaran saw the dead body and informed P.W. 20 the Forest Watcher about it. The Watcher prepared Ex. M. report and sent it to the Range Officer who forwarded it to P.W. 36 the Sub-Inspector of Police, Nedumangad.

He got the report at about 5 p.m. that day at the Palode out-post where he had gone to investigate another case. He at once proceeded to the spot, but being too late to conduct the inquest, he returned after posting two constables to watch the dead body. The inquest was held on the dead body the next day. Ex. K is the report. As the body was then in a decomposed state the post-mortem examination was conducted at the spot by P.W. 33 the medical officer who issued Ex. Y certificate. The body was identified even at the time of the inquest. The police sent Ex. AA first information report the same day.

Though the first accused was suspected by P.W. 1 as the person responsible for Sumathi''s death, the suspicion was not confirmed at the time the police sent Ex. AA first information report that day. On further enquiry the next day the suspicion was confirmed and it came out that accused 1 and 2 caused the death of Sumathi. Ext. AE (1) report was accordingly sent to the Magistrate on 1-2-1953. On 31-1-1953, after inquest, Sumathi''s house was searched and Ext. B letter written by her was recovered by the police. Ext. D was the letter recovered by the police from the house of the 1st accused during search on 1-2-1953.

They also recovered M.O. No. 1 torch light which the, 1st accused was said to have taken with him while going to the reserve forest. Both the accused were absconding. The 2nd accused was arrested only on the 17th February near Killimanoor and the 1st accused on 18-2-1953 at an estate belonging to his father in Vamanapuram. As both the accused desired to give confessional statements they were sent to the nearest Magistrates. The 2nd accused was sent to P.W. 32 the Stationary First Class Magistrate, Attingal. Ex. W is the statement recorded by him. The 1st accused was sent to P.W. 35, the Stationary First Class Magistrate, Nedumangad. Ex. E is the confessional statement recorded by him.

On the information given by the 2nd accused, M.O. No. 11 chopper was recovered from the forest reserve where the dead body of Sumathi was found lying. On the information given by the first accused a pair of slippers M.O. No. 10 was recovered from under the bridge at Mylamoodu near the place where the dead body of Sumathi was lying. After investigation both the accused were charged before the Magistrate and he committed them to stand their trial in the Sessions Court, Trivandrum. After trial, with the help of two assessors, the accused were convicted and sentenced as mentioned in paragraph 1.

The dead body recovered from the forest reserve was identified to be that of Sumathi by her father P.W. 1, mother P.W. 2 and the younger brother P.W. 3. Ex. K is the report of the inquest held on the dead body and there was no dispute about the identity of the corpse. According to P.W. 23, the medical officer who conducted the autopsy and issued Ex. Y certificate, the cause of death was stated to be syncope due to shock and haemorrhage as the result of the injury found on her neck. There was an incised horizontal gaping wound 4" x 1 1/2" x 2 1/2" in the upper part of the neck commencing 1/2" below the right mastoid process cutting all the soft parts in front of the vertibral column, carotid arteries on both sides and the larynx.

A suggestion was made at the time of argument that the death might be due to suffocation. In that case as stated by P.W. 33, the medical officer, the left side of the heart would be empty but the right side would be full. Both the chambers of the heart were found empty and it was definitely the opinion of the medical officer that the injury was an ante-mortem one and that it was this that caused Sumatra''s death. There is therefore not much scope for speculation that the death was due to some other cause. We do not feel any doubt in holding that Sumathi met her death because of the injury inflicted on her neck with a sharp instrument.

The most important point for consideration is how Sumathi sustained this injury. There is no direct evidence and the lower Court had mainly relied on the confessional statement made by both the accused as to how the injury was inflicted. Since the confessional statements were retracted by both the accused before the Sessions Court, it was possible to act on the same only if they were corroborated on material particulars by other independent evidence.

The principle that has to be borne in mind has been thus laid down by the Supreme Court in - Hanumant Vs. The State of Madhya Pradesh, .

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

In - Kashmira Singh Vs. State of Madhya Pradesh, , the Supreme Court has laid down that the confession of an accused person is not evidence in the ordinary sense as defined in S. 3 of the Evidence Act, that it cannot be made the foundation of a conviction, and can only be used in support of other evidence. The proper way to approach a case of this kind is as pointed out by their Lordships in the above case

first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.

In - ''Pyli Jaccob v. The State'', AIR 1953 Trav-C 466 (C), this Court while considering the circumstances under which a confession could be used had occasion to review and consider all the important cases bearing on the point. Further emphasis is therefore unnecessary to show that the evidence adduced in the case has to be considered at the first instance before seeking the aid of the confessional statement. The Court below began with the confessional statements and then attempted to accept them by referring to other evidence corroborating those statements. That was not the proper procedure to be adopted. We would therefore deal with the independent evidence adduced in the case before we consider to what extent the confessional statements could be relied upon.

The deceased Sumathi was at the time of her death pregnant and this is borne out by the findings of the medical officer in Ex. Y certificate corroborated by his evidence as P.W. 33. He noticed that Sumathi''s uterus was enlarged to the size of six months of pregnancy & that it contained a male foetus 12" long. P.W. 7 a neighbour of Sumathi had seen the 1st accused and Sumathi in a secret place where they used to meet. Sumathi had disclosed the fact of her pregnancy to her friends P.W. 5 and 6; and to P.W. 8 she had mentioned that the 1st accused was responsible for the same.

It was the prosecution case that the 1st accused wanted to do away with sumathi because of her pregnancy through him. It was therefore a circumstance which had some proximate relation to her death and her statement to these witnesses of her condition and of the person responsible for it would be admissible in evidence under S. 32(1), Evidence Act. This would be a circumstance of the transaction that led to her death and so the statement is as held in - AIR 1939 47 (Privy Council) admissible in evidence. (His Lordship discussed the evidence and proceeded:)

7-11. The above is the evidence which we think is reliable. There are certain embellishments such as the recovery of Exts. B and D letters and the post card Ext. F said to have been sent by the 1st accused from Madura to P.W. 11. As the evidence relating to them is not sufficient we do not place any reliance on these documents. The 1st accused had a very strong motive to see that he was not molested or subjected to disgrace because of his relationship with Sumathi and her consequent state of pregnancy. He promised to take her to the hills and live with her there. She followed him without suspicion. Accused 1 and 2 with Sumathi went along the road giving out that they were going to witness a festival in Mathira.

Accused 1 and 2 had no intention to go to see the festival as would be evident from the fact that they did not really go to Mathira. On the other hand, they took the road to Palode. Their intention was therefore not what they expressed to others to whom they were known. They went along the Palode road to the reserve forest. The 1st accused left his slippers under the bridge near the forest and the 2nd accused threw away the chopper he had into the forest. While returning they met their friends to whom they told a deliberately false statement that they were coming after seeing the festival at Mathira.

They were also seen returning from the direction of the reserve forest by the witnesses P.Ws. 15 and 21. Not far from Pangode junction they were also seen by P.Ws. 23 and 34 to whom they repeated the same story. When Sumathi''s dead body was detected in the reserve forest on the 30th January they disappeared from the scene and remained in hiding till they were arrested. These circumstances are strong enough to show that the accused had done away with Sumathi, who had unsuspectingly accompanied them on the night of the 27th January to a place beyond Palode.

To corroborate these circumstances we can now refer to the confessional statements, though retracted, by the accused. The Magistrates who recorded them were satisfied that they were voluntary statements. The accused had been given the necessary warning. The 1st accused had in Ext. Z stated that himself and Sumathi had become friends in Makaram, 1127, that they were having sexual connection regularly, that two months prior to her death Sumathi had told him that she was pregnant, that attempt had been made with the help of the 2nd accused to cause an abortion, that it did not succeed, that some people had known that Sumathi had become pregnant, that on the 11th Makaram 1128 (24-1-1953) on the 2nd accused telling him that the matter had become public, he thought over the matter, and resolved to take her on the 14th Makaram to some place to murder her, that himself and the 2nd accused took Sumathi along the Kallara - Palode road, that at Kallara they saw a lorry being unloaded, that when they approached Pangode, a lorry came from the opposite direction, that they rested for about half an hour over the bridge at Mylamoodu, that two furlongs beyond the bridge they entered the reserve forest, that he caught Sumathi''s neck and asked to hold her hands behind her, that she obeyed, that at his instance the 2nd accused tied her hands behind her back with her own upper cloth, that he then threw her on her back and squeezed her neck with his hands, that when she threw up her legs, the 2nd accused was asked to keep them down, that on applying pressure on her neck for about 10 minutes she was silent but her breathing had not stopped, that he then got up and stood a little distance away, that the 2nd accused cut her with a chopper, that after throwing the chopper in the forest they ran away from the place and that on their way back a woman who knew the 2nd accused asked him where he had been to, that the 2nd accused had replied that he, had gone to Mathira to see the festival and that when they reached near his house they parted. He would also say in the confession that after the incident he went to Coimbatore and Trichinopoly and returned to Kilimanoor and remained there for 3 or 4 days.

He had been arrested on 18-2-1953. In his confessional statement Ext. W the 2nd accused practically repeats the same version till the unsuccessful attempt of the 1st accused to throttle Sumathi. The 2nd accused would say that when the 1st accused asked him to cut Sumathi''s neck, he refused to do so and that he cut Sumathi''s neck only after the 1st accused threatened him with death. The 1st accused had stated that he was standing a little distance away from Sumathi when the 2nd accused cut her throat, whereas the 2nd accused would say that it was the 1st accused who was keeping her head in position to enable the 2nd accused to cut the throat. Except as regards the actual cutting of the throat, there is sufficient independent evidence to corroborate the confession.

As stated by both the accused, Sumathi''s hands were seen tied behind her back with a second cloth. The cut injury on Sumathi''s throat corresponded to the injury mentioned in Exts. W and Z. The false statement made by the accused that the object of their travel at night with Sumathi was to witness the festival in Mathira and the similar false statement given to persons like P.Ws. 23 and 34 when they were returning the next day without Sumathi would show that they had something to hide and that related to Sumathi.

Sumathi was last seen alive in the company of accused 1 and 2 on the night of the 27th January when she had met with her death. The confessions lend assurance to the evidence against the accused and they are additional reasons for believing the other evidence referred to. But these confessions can be used only for the purpose mentioned in Kashmira Singh Vs. State of Madhya Pradesh, already referred to.

The learned Government Pleader argued that the 1st accused''s confession can be used to corroborate the confessional statement of the 2nd accused and vice Kashmira Singh Vs. State of Madhya Pradesh, is an answer to this as well. As laid down in - AIR 1949 257 (Privy Council) , whilst it is not illegal to act on the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material particulars so as to implicate the accused; and further, the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice.

It is therefore not possible to accept the position taken by the learned Government Pleader. Apart from this there is sufficient evidence to hold that the confession given by the 2nd accused is well corroborated. The actual cutting of the throat of Sumathi was by the 2nd accused. Accused 1 and 2 had taken her to the reserve forest under false pretence for the sake of doing away with her. Thus, even though the 2nd accused was the person who caused the actual death, the 1st accused also is liable for the same. The 2nd accused had stated that he did the act under compulsion from the 1st accused. The illegal act done by him cannot save him particularly when it is noticed that Sumathi was taken by accused 1 and 2 for putting an end to her life.

In the view that we take in this case we hold that the conclusion arrived at by the learned Sessions Judge is the correct one. We confirm the conviction and sentences except as regards the fine which we think is unnecessary in the circumstances of this case. The sentence imposing the fine on accused 1 and 2 is set aside. The sentences passed on the 1st accused under S. 302/ 114, I.P.C. and 364 and the sentences on the 2nd accused for the offences under Ss. 302 and 364/114, I.P.C. are confirmed. We also hold that the sentences passed on accused 1 and 2 are to run concurrently. Except as regards the modification relating to fine, we dismiss both the appeals.