Kerala High Court
Baby vs State Of Kerala on 12 December, 2018
Equivalent citations: AIRONLINE 2018 KER 950
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 5TH AGRAHAYANA,
1940
CRL.A.No. 126 of 2014
AGAINST THE JUDGMENT IN SC 408/2010 of PRINCIPAL SESSIONS
COURT, ERNAKULAM DATED 30-06-2011
CP 27/2010 of J.M.F.C.-I MUVATUPUZHA
CRIME NO. 112/2010 OF MUVATTUPUZHA POLICE STATION
APPELLANT/ACCUSED NO.1:
BABY, AGED 54,
S/O. KURIAKOSE, PACHAMPARAMBIL HOUSE, THURUTHI
KARA, MUDAKKUZHA VILLAGE.
BY ADV. SRI.C.P.UDAYABHANU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE C.I. OF POLICE, (CRIME
NO.112/10), MUVATTUPUZHA POLICE STATION,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.11.2018, THE COURT ON 12.12.2018 DELIVERED THE FOLLOWING:
Crl.Appeal No.126/14
-:2:-
JUDGMENT
Shaffique, J.
The appeal at hand is filed by the appellant challenging the verdict of the Principal Sessions Judge, Ernakulam in S.C. No. 408 of 2010 arising out of Crime No. 112 of 2010 of Muvattupuzha Police Station by which he was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for brevity 'IPC') and sentenced to undergo imprisonment for life and to pay fine of `3,00,000/- (Rupees Three Lakhs only) in default to undergo rigorous imprisonment for one year. A2, who is the brother of the appellant, was acquitted by the trial Court vide the same judgment.
2. The case of the prosecution is as follows: Deceased Mohanan @ Athira Mohanan was residing at Panamkuttyil House at Manari, Thrikkalathoor Kara, Mulavoor Village, along with his wife PW9 and their two children. PW11 Shibu had entered into an agreement with the deceased during the month of September 2009 for cutting stones from the property of the deceased and for selling it for a period of 11 months for a sum of `10,000/-. After Crl.Appeal No.126/14 -:3:- entering into the said agreement, PW11 made A2 also as one of his partners in the said business. A1 is the elder brother of A2. After making arrangements with A2 to continue the business, PW11 backed out from it and the work was totally entrusted with A2. The deceased had a mini lorry and A2 was one of the drivers. Later, A2 arranged the said vehicle to be sold. Thereafter A2 continued with the work of cutting and selling stones from the property of the deceased. PW9 used to make arrangements for loading the said stones and for transporting it from the property. On 16/01/2010, a lorry load of stones were transported from the aforesaid property. On that day at about 2.00 p.m., both the accused reached the house of the deceased for obtaining the cost of the stones. PW9 gave `3,600/- obtained as cost of the stones to A2. Out of it, A2 paid PW9 an amount of `500/- as loading charges. At that time, the deceased and PW9 reminded A2 that the contract is for a period of 11 months and that too with PW11 only, and further they made it clear that they would not permit A2 to continue the work. There occurred a wordy altercation on that and after posing a threat, both the accused went away.
3. On 17/01/2010 by about 6.30 a.m., the deceased went Crl.Appeal No.126/14 -:4:- out from his house by stating that he was proceeding to his work place for obtaining wages. By about 10.00 a.m., both the accused approached the deceased and took him to House No. XXI/273 of the Payipra Grama Panchayat, Pachamparambil Veedu, Thrikkalathoor Kara, Mulavoor Village which is the house of A2. By about 12.00 noon, both the accused along with the deceased hired an autorickshaw bearing Reg.No. KL-6/D 905 of PW2, and proceeded to the house of PW20. A2 got down from the autorickshaw, went to PW20, borrowed an amount of `500/- from him and again came back to autorickshaw. They proceeded to the retail outlet of the Beverages Corporation at Vazhappilly, Muvattupuzha, and A2 purchased a bottle of liquor named 'White Mischief'. Thereafter they all came back to the house of A2 at about 1.30 p.m., where both the accused along with the deceased consumed liquor. After that, they entered into a wordy altercation with the deceased in the kitchen of the house. With the intention of doing away with the deceased, A1 took MO7 chopper which was there in the kitchen, and indiscriminately inflicted serious cut injuries on the head, face and neck of the deceased repeatedly by using MO7. It is alleged that A2 who was Crl.Appeal No.126/14 -:5:- standing as a mute spectator to the incident aided and assisted A1. The deceased succumbed to the injuries. Thereafter, both the accused fled from the scene of offence.
4. PW8 is another brother of the appellant. He was also residing along with A2 at the aforesaid house. He was working as a coconut climber and also doing other coolie works. On 17/01/2010 in the morning, PW8 had gone out for the work of carrying pineapple seedling for PW10. After his works, PW8 returned to the house of A2 by about 5.00 p.m. He could see the front door of the house opened and he found nobody there. He entered inside the house and went to the kitchen. There he could see the deceased lying in a pool of blood with blood oozing out from the injuries. Blood-stained MO7 was seen placed on the kitchen slab. He took the deceased from the kitchen to the verandah with a view to take him to the hospital by getting some vehicle.
5. At about 5.00 p.m. on 17/01/2010, while PW27 Sub Inspector of Police, Muvattupuzha and party were about to start for evening patrol duty, both the accused appeared at the police station and told him that the body of a person who was cut and Crl.Appeal No.126/14 -:6:- killed was lying at their house at Thrikalathoor. After making arrangements for keeping the accused at the police station under surveillance, PW27 along with the police party reached the house of A2. They could see PW8 sitting at the veranda of the house by holding the deceased. PW8 told him that the deceased was lying injured inside the kitchen, and he took the deceased to the veranda for taking him to hospital. After engaging CW38 and CW39 for scene guard, he along with PW8 and other members of the police party took the deceased in the police jeep to the Taluk Headquarters Hospital, Muvattupuzha. The Doctor on examining the injured declared that he is dead.
6. Prosecution examined PWs 1 to 29 as witnesses, produced and marked Exts.P1 to P26 documents and identified material objects MO1 to MO18. Exts.D1 to D4 were marked from the side of the defence.
7. During 313 examination, the appellant denied incriminating circumstances appeared against him and he explained his case in detail. No defence evidence was adduced.
8. Learned Counsel appearing for and on behalf of the appellant submitted that the appellant is innocent in this case Crl.Appeal No.126/14 -:7:- and he is falsely implicated. There is no eye-witness to the incident. There is no evidence to prove the motive behind the crime. Prosecution failed to adduce convincing evidence to show even the very presence of the appellant at the place of occurrence. The witnesses cited cannot be believed. Last seen together theory is not proved in evidence. The house in which the offence took place does not belong to the appellant. There is no enmity between the appellant and the deceased. No wordy altercation took place between the deceased and the appellant as alleged by the prosecution. There is absolutely no evidence to show who inflicted injuries on the deceased and how he sustained injuries. Prosecution case rests not on evidence but on suspicions and ambiguity. The Court below erred in appreciating evidence and in convicting the appellant. Hence, he pleaded for an acquittal. He relied on the decisions of the Apex Court in Reena Hazarika v. State of Assam (2018 (14) SCALE 509), Santosh and Anr. v. State of Kerala (1991 Cri.L.J. 570) and Raj Kumar Singh v. State of Rajastan (2013 Cri.L.J 3276) to fortify his arguments.
9. On the other hand, the learned Public Prosecutor Crl.Appeal No.126/14 -:8:- argued that the prosecution proved the guilt of the appellant beyond reasonable doubt. There is clear motive behind the crime. The deceased was last seen together with the accused just before his death. The evidence of witnesses are credible and cogent. The medical evidence would show that the injuries inflicted on the victim were brutal and fatal. It could be caused by MO7 which was available in the kitchen of the house. The ocular, medical and forensic evidence unerringly points to the guilt of the appellant. The trial Court is fully justified in convicting the appellant and hence there is no need to interfere with the same.
10. The question to be decided is whether the Court below is justified in finding the appellant guilty and in sentencing him as already detailed.
11. There is no dispute about the fact that the deceased is Mohanan @ Athira Mohanan and the incident happened in the house of A2's mother in which PW8 is also residing.
12. PW26, Dr. Liza John, the then Assistant Professor in Forensic Medicine and Deputy Police Surgeon, Medical College Hospital, Alappuzha conducted post-mortem examination of the deceased and issued Ext.P14 post-mortem report. Following ante- Crl.Appeal No.126/14 -:9:- mortem injuries were noted in Ext.P14:-
"1. Incised wound 3 x 1 cm horizontal cutting the whole thickness of the left ear lobule, 2 cm below its tip.
2. Incised wound 4 x 1 cm bone deep horizontal on the left side of head, behind the top of ear. Injury No.1 and 2 were in the same horizontal plane.
3. Contusion of scalp 8 x 3 x 0.5 cm on the left side of head, underneath injury No.2 left temporarlis muscle was seen contused.
4. Abraded contusion 4 x 0.8 x 0.8 cm oblique on the left side of cheek, its inner lower end, 2 cm outer to the angle of mouth. The nasal bones were fractured fragmented.
5. Incised wound 8 x 2 cm oblique of the left side of face (with depth varying from 2.5 cm at its outer lower end and 1 cm towards the middle) its lower outer end being 5 cm below and behind the earlobule.
6. Incised wound 7 x 0.5x0.1 cm oblique on the left cheek, its upper inner end being 6 cm outer to the nose and 2 cm below the lower eye lid, with odema around.
7. Incised wound 4 x 0.5 cm bone deep oblique on the left side of face, its upper inner end at the angle of mouth, at lip margin with a curved tailing 10 cm outwards and downwards extending till the jaw margin.
8. Incised wound 5 x 2 cm bone deep oblique involving the left side of chin in midline and adjacent part of neck, along the lower jaw margin with tailing of abraded contusion 8 cm x 0.2 cm extending downwards and outwards.
9. Abraded contusion 5 x 1 x 0.2 cm oblique under the chin on left side, 2 cm below and parallel to injury No.8.
10. Abraded contusion 3x2x0.2 cm on the left side of the Crl.Appeal No.126/14 -:10:- neck 5 cm outer to midline and 4 cm below jaw margin.
11. Multiple small abraded contusions, over an area 8 x 4 cm on the left side of root of neck, overlying the clavicle, 5 cm outer to midline.
12. Abrasion 10x1.5 cm oblique on the front and left side of neck, 4 cm below chin in the midline and 7 cm below the angle of jaw.
On flap dissection of the neck, done under bloodless field, left sterno hyoid and sterno thyroid muscles showed corresponding contusion and inflitratrions of blood.
13. Abraded contusion 1.5x1x0.2 cm on the tip of shoulder 5 cm inner to its tip.
14. Abraded contusion over an area 7 x 2 cm on the outer prominence of left shoulder.
15. Abraded contusion 9 x1.5x1 cm vertical on the outer aspect of left arm, 6 cm below top of shoulder.
16. Incised wound 5 x 2 x 1.5 cm vertical on the outer aspect of left arm, 15 cm below top.
17. Abrasion 1 x 0.1 cm vertical outer left side of chest, 5 cm below color bone, 11 cm outer to midline.
18. Abrasion 0.5x0.1 cm on the left side of chest. Overlying the inner end of collar bone."
13. According to her, death was caused due to the injuries sustained to the head and neck. She also deposed that injury nos. 1, 2 and 4 to 12 sustained on the head, face and neck collectively are sufficient in the ordinary course of nature to cause death. It is her version that the above injuries were possible by using MO7 as weapon of offence.
Crl.Appeal No.126/14-:11:-
14. From this evidence, it can be concluded that the death of Mohanan @ Athira Mohanan was a homicide.
15. Other evidence, in brief, are as follows: PW1 is the brother-in-law of the deceased. He lodged Ext.P1 FIS.
16. PW2 is an autorickshaw driver who deposed that the deceased and the accused were travelling in his autorickshaw for buying liquor and he dropped all of them at the house of A2 at 1.30 p.m. on 17/01/2010. He identified MO1 and MO2 as dress worn by the deceased, MO3 and MO4 as dress worn by the appellant and MO5 and MO6 as dress worn by the second accused.
17. PW3 deposed that she saw the deceased and the accused standing at the house of A2 at 3.45 p.m. on 17/01/2010. She identified MO1 and MO2, the dress of the deceased.
18. PW4 saw the deceased coming along with the accused at about 12.00 p.m. on 17/01/2010. According to her, at about 4.30 p.m. also, while she was going to the SNDP, from the road, she could see the deceased lying at the kitchen of the house of A2. PW3 was also present there at that time.
19. PW5 is a blacksmith who made and gave MO7 Crl.Appeal No.126/14 -:12:- chopper to PW8 for his work purposes.
20. PW7 deposed that, on 17/01/2010 at about 4.00 p.m., he saw both the accused coming through the small road and on reaching the main road, they stood there for about two minutes and thereafter he saw them proceeding towards the bus stop.
21. PW8 is the brother of the accused. He was living in A2's house. He is a coconut climber. He purchased MO7 for his work purpose, from PW5. On 17/01/2010, he did not go for climbing, but went for some other coolie work. According to him, MO7 was available in the house on that day. He came back to house at 5.00 pm and saw the deceased lying in a pool of blood with injuries in the kitchen. He carried him to the front of the house for getting a vehicle for taking him to hospital.
22. PW9 is the wife of the deceased. She deposed that on the previous day of the incident, there was a wordy altercation between the deceased and herself on one hand and the accused on the other and they intimidated them and tried to take her husband with them. But she did not allow it. She deposed to the factual aspects of agreement entered into between her husband and PW10 and the arrangement with A2 for taking stone pieced Crl.Appeal No.126/14 -:13:- from their quarry. According to her, the motive for the crime is the enmity due to their communicating to the accused their reluctance to renew the above contract with A2.
23. PW14 is the Village Officer who prepared Ext.P5 scene plan.
24. PW15 was working as the Scientific Assistant at FSL Kochi at the relevant time. She collected MO10 and MO11 from the place of occurrence and Ext.P6 report is for the same.
25. PW16 was present during the preparation of Ext.P7 scene mahazar and he is an attestor to it.
26. PW19 is the then Head Constable of Muvattupuzha Police Station. He produced MO1, MO2 and MO15 before the investigating officer which were seized through Ext.P12 mahazar.
27. PW21 is the photographer who furnished Ext.P8 photographs.
28. PW22 did the scene guard duty on 18/01/2010 and he is an attestor to Exts.P9 and P10 seizure mahazars for recovery of the dress of A1 and A2 respectively.
29. PW23 is another Police Constable. He is an attestor to Ext.P11, by which the agreement was recovered.. Crl.Appeal No.126/14 -:14:-
30. PW27 is the then Sub Inspector of Police, Muvattupuzha. On 17/01/2010, at 6.45 p.m., PW1 gave Ext.P1 FIS regarding the crime and based on it, he registered Ext.P1(a) FIR.
31. PW28 is the then C.I. of Police, Puthencruz who was also holding additional charge of Muvattupuzha C.I. On 18/01/2010 at 09.00 a.m., he prepared Ext.P2 inquest report. He arrested the appellant and the second accused on 18/01/2010 at 3.00 p.m. and 3.15 p.m. respectively who were under surveillance in police station. Ext.P15 is the arrest memo and Ext.P16 is the inspection memo of the appellant herein. Ext.P17 is the arrest memo and Ext.P18 is the inspection memo of A2. He seized clothes of the accused as per Exts.P9 and P10 seizure mahazars. Ext.P19 is the remand report and Ext.P20 is the address report of the appellant. Through Ext.P13 mahazar, MO16 blood sample was seized from the Doctor who conducted post-mortem examination of the deceased. He also seized MO7, MO8 and Ext.P3 through Ext.P7.
32. PW29 took over investigation on 19/01/2010. Ext.P25 series is the property list. Ext.P24 is the forwarding note of MO's to Court. Ext.P26 is the chemical analysis report. It shows that Crl.Appeal No.126/14 -:15:- human blood was found in item nos. 1, 3, and 4(1). He completed the investigation and laid the charge-sheet.
33. The Court below found the following circumstances against the appellant to come to the present conclusion:
1. On 16/01/2010 both the accused visited the house of the deceased for obtaining the cost of rubbles transported on the previous day and there occurred a wordy altercation between PW9 and the deceased on the one side, and the accused on the other and thereafter the accused went away from there by airing a threat.
2. Even though the accused wanted to take away the deceased from there on 16/01/2010, PW9 did not permit the deceased to go along with the accused.
3. On 17/01/2010 in the morning, the deceased went out of his house.
4. Around 12 noon on 17/01/2010, the deceased was found in the company of both the accused and they came from the direction of the house of A2 to the main road and proceeded to the liquor shop of the Beverages Corporation outlet at Muvattupuzha in the autorickshaw of PW2. Crl.Appeal No.126/14 -:16:-
5. On the way, A2 procured money from the house of PW20 and purchased a bottle of brandy with the name 'White Mischief' from the liquor shop of the Beverages Corporation outlet at Muvattupuzha.
6. The deceased along with the accused reached the house of A2 at 1.30 p.m. with the liquor.
7. The deceased was lastly seen alive in the company of both the accused at the house of A2 at 3.45 p.m. on 17/01/2010.
8. On 17/01/2010, PW8 went out of the house of A2 in the morning without taking MO7 chopper and he came back around 5.00 p.m. only on that day.
9. By about 4.30 p.m. on 17/01/2010, the deceased was found lying in the kitchen of the house of A2.
10. By about 4.00 p.m., both the accused came from the direction of the house of A2 to the main road and went towards the bus stop at west for going to Muvattupuzha Police Station.
11. By about 5.15 p.m., while PW27 along with PW19 and the police party were about to proceed for patrol duty from Muvattupuzha Police Station, both the accused reached the Crl.Appeal No.126/14 -:17:- police station and A1 told PW27 that he came after finishing a person.
12. Both the accused told PW27 that a person was cut and murdered at their house at Thrikalathoor.
13. After keeping both the accused under surveillance at the police station, PW27 along with PW19 and a police party rushed to the house of A2, which is the scene of occurrence, in police jeep.
14. On reaching the house of A2 by around 5.00 p.m., PW8 saw the deceased lying in the kitchen with injuries and he managed to take the deceased to the veranda and he sat there by holding the deceased with a view to taking the deceased to the hospital by some vehicle.
15. PW27 along with PW19 and the police party, on reaching the house of A2 saw PW8 sitting at the veranda by holding the deceased who was seriously injured.
16. A pool of blood in coagulated form was seen on the floor of the kitchen and MO7 blood-stained chopper was seen placed on the kitchen slab.
17. After arranging scene guard, PW27 along with PW19 Crl.Appeal No.126/14 -:18:- and PW8 took the deceased to the Taluk Headquarters Hospital, Muvattupuzha in police jeep.
18. On reaching the hospital, PW17 Assistant Surgeon declared the death of Mohanan.
19. The post-mortem examination of the body of the deceased revealed that the body cavity was emitting alcohol-like smell.
20. MO12 empty bottle of 'White Mischief' brandy was seized from the house of A2.
21. At the time of arrest, MO3 T-shirt worn by A1 contained human blood.
22. MO3 T-shirt was worn by A1 when he along with A2 and the deceased reached the house of A2 at 1.30 p.m. on 17/01/2010 with the bottle of the liquor.
23. MO3 T-shirt was worn by A1 when he reached the Police Station by about 5.15 p.m. on 17/01/2010.
24. A1 has given a false explanation that the deceased took MO7 chopper and cut him and then he caught on the chopper and pulled it and thereby the deceased sustained injury.Crl.Appeal No.126/14
-:19:-
25. The serious injuries found on the body of the deceased cannot be caused merely by pulling MO7 or on a tussle or scuffle for snatching away MO7 from the hands of the deceased.
26. Injury nos. 1, 2, 4 to 8 and 16 to 18 found on the body of the deceased as noted in Ext.P14 could be caused by cutting with MO7.
27. Injury nos. 3, 9 and 10 found on the body of the deceased as noted in Ext.P14 could be caused by striking with the blunt edge of MO7.
28. Injury nos. 11 and 12 found on the body of the deceased as noted in Ext.P14 with its internal effects could be caused by striking or pressing with the blunt surface of MO7.
29. Injury nos. 1, 2 and 4 to 12 found on the head, face and neck of the deceased as noted in Ext.P14 collectively are sufficient in the ordinary course of nature to cause death.
30. The death of the deceased was due to the injuries sustained to the head and neck, and the death was proved Crl.Appeal No.126/14 -:20:- to be homicidal.
34. PW9 is the wife of the deceased. Her evidence is that on the previous day of the date of incident, the accused had entered into a wordy altercation and they threatened her husband and even tried to take him away. Nothing is brought out in evidence to shake her testimony regarding immediate provocation and motive for the crime.
35. It is in evidence that the deceased who went out from his house in the morning, was seen together in the company of the appellant and the 2 nd accused on the date of incident at 12.00 p.m while they were proceeding to the liquor outlet of Beverages Corporation at Muvattupuzha in the autorickshaw of PW2, as testified by PW2. Also at 1.30 p.m., the deceased and the accused reached the house of A2 with bottle of liquor titled 'White Mischief' which they had purchased. This fact is also spoken by PW2. Again at 3.45 p.m., he was seen alive with the accused at the house of A2 by PW3. Further, at 4.30 p.m., the deceased was found lying in the kitchen of the house of A2 by PW4. Also, at about 4.00 p.m., PW5 saw both the accused coming from the direction of the house of A2 to the main road and they Crl.Appeal No.126/14 -:21:- went towards the bus stop towards west. Finally, the deceased was seen by PW8 who is the brother of the appellant and A2, lying in the kitchen of the house of A2 with fatal injuries and heavy bleeding. These circumstances brought out in evidence by the prosecution would confirm the fact that the deceased was last seen together with the accused at A2's house hardly 45 minutes before his death. The result of the evidence is that it casts a burden on the accused to explain how they parted the company of the deceased. In that aspect, the 313 explanation given by the appellant herein assumes importance. He deposed as follows: "
On 17th, myself and the second accused were sleeping at the house after consuming liquor. Mohanan (deceased) came near me at 4.00 p.m. When I entered the kitchen for having food, Mohanan came to the kitchen and beat me. In return, I also beat Mohanan. When I pushed Mohanan, Mohanan took the chopper which was there in the kitchen and inflicted injuries on me. I caught on the chopper and pulled it and thereby Mohanan sustained injury. Injury was not deliberately inflicted. During that time, A2 was lying and sleeping there in the house. A2 is innocent. I Crl.Appeal No.126/14 -:22:- along with A2 went to the police station and informed the matter. We told at the police station that Mohanan sustained injuries and was lying at the house. A2 has not committed any offence."
36. Virtually, appellant admits his presence at the scene of occurrence, when the deceased sustained the injuries. He also admits that there was an altercation between him and the deceased. He completely exonerates his younger brother, A2. He also stated that there was nobody else at the place of occurrence. Altogether 18 ante-mortem injuries were noted in the body of the deceased, out of which almost 9 of them were deep incised wounds. Evidently, the above explanation is quite unnatural and not probable at any stretch of imagination.
37. That apart, evidence of PW8 would show that he was residing in the house of A2 and MO7 is the weapon he bought from PW5 for his coconut tree climbing job. On the date of incident, he did not go for coconut climbing work but he had gone for carrying pineapple seedlings for PW10 and hence MO7 was readily available in the kitchen of the house. At about 5 p.m. on the same day, as he reached the house, he found the victim in injured condition in the kitchen of their house. MO7 was also Crl.Appeal No.126/14 -:23:- there on the slab of the kitchen and it was blood-stained. He tried to bring him to the front of the house for getting him admitted to hospital.
38. Ext.P26 is the FSL report. Item no. 1 is MO7 weapon and item no. 3 is the T-shirt worn by the appellant at the time of commission of the crime. The report shows that both items contained human blood in it.
39. In the case on hand, the appellant has admitted his presence in the house of A2 at the time when the deceased suffered the injury which exactly is the prosecution case which has already been proved by the testimony of PW2, PW3, PW4 and PW5. The only question to be considered is whether the defence taken by the accused is substantiated or not. According to the accused, deceased was the assailant and there was a scuffle between them. Deceased took hold of the chopper and when he tried to pull away the chopper from the deceased, he sustained injuries. But it is relevant to note that the appellant did not sustain any injury at all and the deceased sustained 16 ante- mortem injuries, which is not at all possible if it was an accidental stab. Therefore, the explanation offered by the accused while Crl.Appeal No.126/14 -:24:- examined u/s 313 cannot be believed. The only inference that could be drawn from the proved circumstances is that the appellant has committed the crime.
40. Of course, the trial Court had also treated the admission made by the accused before the police officer as the circumstance against them. But it is settled law that u/s 25 of the Evidence Act, an admission made to a police officer is not evidence. Section 25 reads as under:-
"25. Confession to police officer not to be proved.-- No confession made to a police officer shall be proved as against a person accused of any offence."
41. In State of Gujarat v. Anirudhsingh (AIR 1997 SC 2780), the Apex Court held that the object of S.25 is to ensure that the person accused of the offence would not be induced by threat, coercion or force to make a confessional statement and the officers also would make every effort to collect the evidence of the commission of crime de hors the confession to be extracted from the accused while they are in the custody of the police. In Aghnoo Nagesia v. State of Bihar (AIR 1966 SC
119), the Apex Court had held that, a confession to a police officer, whether in the course of investigation or otherwise, and a Crl.Appeal No.126/14 -:25:- confession while in police custody, are inadmissible.
42. In the case on hand, evidence of PW27 and PW19 to the extent of stating that the accused had informed them that they had committed the crime cannot be treated as evidence in the case. Apparently the case has to be considered without reference to the said admission allegedly made by the accused. Even without considering the said evidence, the other factual circumstances which has been proved by the prosecution and had been narrated above unerringly point out to the commission of crime by the appellant. Under such circumstances, we have no hesitation to hold that the conviction and sentence against the appellant/accused do not require any interference.
In the result, the appeal is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN
Rp True copy JUDGE
P.S. To Judge