Kerala High Court
Unknown vs By Adv. Meena.A on 14 September, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 14TH DAY OF SEPTEMBER 2012/23RD BHADRA 1934
CRL.A.No.2660 of 2008 (B)
--------------------------
SC.25/2006 of ADDL.SESSIONS JUDGE-II, MAVELIKKARA
APPELLANT(S)
------------
KANTHASWAMY, C.NO.1422,
CENTRAL PRISON, THIRUVANANTHAPURAM.
BY ADV. MEENA.A
RESPONDENT(S)
------------
STATE OF KERALA
PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.GIKKU JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-09-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR
&
C.T. RAVIKUMAR, JJ.
==========================
CRL.APPEAL. No.2660 OF 2008
==========================
Dated this the 14th day of September, 2012
JUDGMENT
Sasidharan Nambiar, J.
Appellant was convicted and sentenced to imprisonment for life for murdering his brother Maheswaran, by Additional Sessions Judge, Mavelikkara in S.C.No.25 of 2006. Prosecution case is that PW7 Ramesh is the proprietor of Hotel Ariyas, Kayamkulam. PW2 Murukesan was the Supervisor of the hotel. PW1 Veerayya and PW4 Abraham were suppliers. PW3 was employed in the kitchen. PW6 Kannan was employed as tea maker. PW7 had taken a house on rent for the residence of his employees. PW1, PW2, PW3 and PW9 were residing in the hotel itself. The deceased Maheswaran was employed in the flower mart conducted by PW7, adjacent to the hotel. Appellant and deceased Maheswaran are brothers. PW5 Devika is Crl.A.2660/08 2 their sister. They are natives of Thenkasi of Tamilnadu. As requested by Maheswaran, PW9 employed the appellant in Hotel Ariyas. Though he was originally employed to wash the dishes, it was not liked by the appellant. When Maheswaran informed it, PW7 shifted him as water boy. According to the prosecution, appellant had a grievance that though the deceased was brought by Maheswaran and provided an employment in Hotel Ariyas, that job was not up to his expectation. Appellant, deceased Maheswaran, PW4, PW6 and some other employees of the hotel were residing in the rented house. Appellant was sharing one room with his brother, the deceased Maheswaran. It was alleged that on the night of 22.11.2004, appellant and the deceased had returned to the house after the days work. While preparing to sleep, they picked up a quarrel. Later, all the residents of that house slept. By 12.15 a.m., appellant came to the hotel and called PW1 and informed him that he murdered his brother Maheswaran by placing a stone on his head and the dead body is lying in the house. Appellant sought money from PW1 to go to his native place as he apprehended arrest. PW1 did not give him money. Instead, he called PW2 and informed him what appellant disclosed to him. When PW2 Crl.A.2660/08 3 asked the appellant, it was informed that he murdered Maheswaran by placing a stone on his head. PW9, the cook who was sleeping in the hotel, woke up hearing the sound and PW9 heard the statement of the appellant to PW2 that he murdered his brother. PWs 1 and 2 sent PW3 and another employee from the hotel to the rented house, to verify the correctness of the statement made by the appellant that Maheswaran is lying dead in the house. PW3 went to the house and woke up PW4, 6 and others who were sleeping in the house. They went to the room where appellant and the deceased were sleeping. They found the body of Maheswaran lying with bleeding injuries on the head and MO6 series of concrete slab pieces scattered around the head of the body. PW3 returned back to the hotel and informed PW1, who, in turn, furnished Ext.P1 FI statement which was recorded by PW13 Sub Inspector of Police at 1.15 a.m. on 23.11.2004. PW13 prepared Ext.P8 FIR and registered crime No.751/2004 for the offence under section 302 of Indian Penal Code. PW14 Circle Inspector of Police took over the investigation. He went to the house where the body of the deceased was lying and prepared Ext.P4 inquest report in the presence of PW8 on 23.11.2004 at 11 a.m. MOs 1 to 5 Crl.A.2660/08 4 and MO 6 pieces of the concrete slab found near to the body were seized. PW14 got PW11 scientific assistant examined the scene of occurrence on the same day. PW11 collected soil particles from the body of the deceased, blood soaked cotton cloth from the scene of occurrence, blood prints from the corridor near the scene of occurrence and sealed them and forwarded to FSL. He also collected MO7 slab from the bath room. PW14 forwarded the body for autopsy with necessary requisition. PW10 Dr.Sivasuthan conducted the autopsy and prepared Ext.P5 post mortem certificate finding that death of Maheswaran was caused by the injuries sustained on his head. PW14 arrested the appellant on the same day from the premises of Hotel Ariyas and got him examined by PW11 who collected the cellophane impression suspected to contain soil particles taken from both his hands and cotton rubbings collected from both legs and feet of the appellant and handed over to PW14. PW14 produced all the material objects before the court and forwarded them to the Forensic Science Laboratory for examination, by submitting Ext.P15 forwarding note and obtained Exts.P19 and P19(a) reports. After Crl.A.2660/08 5 completing the investigation, PW14 laid the charge.
2. The learned Magistrate committed the case to the Sessions Court, who made it over for trial to the Additional Sessions Court. Learned Additional Sessions Judge framed the charge for the offence under section 302 of IPC and read over and explained to the appellant. Appellant pleaded not guilty. Appellant is defended by a counsel appointed by the court, as he did not appoint a counsel of his own choice. Prosecution examined 14 witnesses and marked 19 exhibits and identified 11 material objects. After closing the prosecution evidence, appellant was questioned under section 313 of Code of Criminal Procedure. At the time of his examination, while denying the incriminating evidence put to him, appellant contended that he was using the room in the rented house only for keeping the articles and was not sleeping in the room occupied by Maheswaran and appellant was sleeping in the hotel itself. It was also contended that he was innocent and he was aware of the death of Maheswaran only after his arrest and had seen the dead body of his brother only after his arrest. Though learned Additional Sessions Judge called Crl.A.2660/08 6 upon the appellant to enter on his evidence and adduce evidence, appellant did not adduce any evidence.
3. Learned Additional Sessions Judge, on the evidence, found the appellant guilty of the offence, relying on the evidence of PWs 1, 2 and 9, the extra-judicial confession and also relying on the last scene theory as deceased was found alive for the last time along with the appellant on that night and he had not offered any explanation. Appellant was accordingly convicted and sentenced as stated earlier. It is challenged in the appeal preferred from prison. As appellant did not appoint a counsel, Adv.Mrs.Meena was appointed to appear for the appellant and argue the appeal.
4. Learned counsel appearing for the appellant argued that learned Additional Sessions Judge should not have convicted the appellant, based on the alleged extra-judicial confession made to PWs 1 and 2. It was argued that extra-judicial confession is a very weak form of evidence and when there is discrepancy with regard to the exact words allegedly spoken by the appellant and the alleged Crl.A.2660/08 7 confession disclosed in Ext.P1 and spoken to by PW1 from the box are inconsistent and hence, the extra judicial confession proved through the evidence of PW1 should not have been relied on. Learned counsel also argued that the evidence of PW2 shows that there was no voluntary confession and his evidence do not inspire confidence and so, the evidence of PW2 should not have been accepted. Learned counsel argued that PW9 is only a hostile witness and his evidence is insufficient to prove the extra-judicial confession. Learned counsel also argued that there is absolutely no motive whatsoever for the appellant to murder his own brother and on the entire evidence, there is no acceptable legal evidence to convict the appellant, especially when there is no direct evidence and the prosecution is relying on the circumstantial evidence. The learned counsel finally submitted that in view of the injuries noted in Ext.P5 post mortem certificate, it is clear that there was a scuffle between the appellant and the victim and in such circumstances, at least appellant is entitled to the benefit of exception 4 of section 300 of IPC and conviction for the offence under section 302 is not sustainable.
Crl.A.2660/08 8
5. Learned Public Prosecutor argued that there is no reason for PWs 1, 2 or 9 to falsely set up an extra-judicial confession and there is no reason to disbelieve their evidence. Learned Public Prosecutor also argued that there is no discrepancy in the evidence of PW1 and the version in Ext.P1 and the evidence of PWs 1 and 2 on the extra-judicial confession was corroborated by the evidence of PW9 who was not cross-examined on that aspect. It is submitted that the extra-judicial confession establishes that it was the appellant who committed the murder. The learned Public Prosecutor also pointed out that Ext.P19 chemical analysis report along with the evidence of PW11 and PW14 establish that, after arrest of the appellant, PW11 had collected cotton rubbings from both the legs of the appellant and it was forwarded to the Forensic Scientific Laboratory, and, on examination, it was found that it contained 'O' Group blood, which is that of the deceased and it establishes that appellant committed the murder especially when he even denied his presence in the house. Therefore, it is argued that there is no reason to interfere with the conviction or the sentence.
Crl.A.2660/08 9
6. The fact that deceased Maheswaran was an employee of a flower mart being conducted by PW7, the owner of Hotel Ariyas, Kayamkulam and PW7 had obtained a building on rent to enable his employees to reside therein and Maheswaran was residing in the house was not disputed. It was also not disputed that while Maheswaran was thus employed, he brought his brother, the appellant, from Thenkasi, their native place and persuaded PW7 to employ him in Hotel Ariyas. This is admitted by the appellant himself, when questioned under section 313 of Code of Criminal Procedure. It was also not disputed that dead body of deceased Maheswaran was found inside the room occupied by him in that house on the midnight of 22.11.2004 when PW3, another employee of the hotel was sent by PWs 1 and 2 to that house to verify whether Maheswaran is alive or not. The evidence of PW3 establish that when he went to the house along with PW4 and verified the room, they found the body of Maheswaran lying on the floor with MO6 pieces of concrete slab scattered near to the body and with bleeding injuries. The evidence of PW10 Doctor Sivasuthan, the Professor and Head of the Department of Forensic Medicine, Medical College, Alappuzha establish that he Crl.A.2660/08 10 conducted the autopsy on the body of Maheswaran on 24.11.2004 and found the following ante-mortem injuries.
1. Lacerated wound 2.50x0.8x0.3cm on inner aspect of lower lip, 1cm to left of midline.
2. Lacerated wound 1x 0.50x0.3cm on left side of chin, 1.5cm outer to midline and 1cm below the lip margin.
3. Abraded contusion 1x1cm on right side of face, 2.5cm in front of tragus of ear.
4. Abrasion 0.7x 0.5cm on right side of face, 1.5cm in front of injury No.3.
5. Abraded contusion 0.6x0.4 on right side of face, 2cm outer to the angle of eye.
6. Abraded contusion 3.5cmx3cm on the tip and left side of nose. The nasal bone beneath was found fractured.
7. Abraded contusion 3x2.5cm over the left cheek.
8. Multiple small abrasions varying from 0.4x0.2 to 1.5x1.5cm over an area 5x2.5cm on left side of face, 3.5cm in front of tragus of ear.
9. Lacerated wound 1.5x0.5x0.4cm on left side of face 0.3cm below and parallel to the middle of the eye brow.
10.Abraded contusion 5.5x1.5cm oblique on left side and forehead, the lower inner end 1cm to left midline over the eye brow.
11.Contusion 7x5.5cm on right side and back of head, 3cm outer the occiput.
On dissection, the 27 gomatic arch of left temporal bone was fractured and depressed. The frontal bone showed fissued fracture across the left supra orbital margin with extension to floor of Crl.A.2660/08 11 left anterior cranial fossa and extended across the pituitory fossa to involved the right temporal bone across its petrous part. Brain showed thin tilm of subdural haemorrhage over the under surface and diffuse thin film of subarachnoid haemorrhage over the left tempero parietal region. Brain was congested and oedematous.
12.Abraded contusion 7.5x1.5cm oblique on back and outer aspect of left arm, the upper front end 8cm below tip of the shoulder.
13.Abrasion 2.5x1.5cm over the back of left elbow.
14.Abrasion 4x0.5cm on inner aspect of left hand, just above root of middle finger.
15.Abrasion 0.8x0.5cm on front of chest, 5.5cm below outer end of right collar bone.
16.Multiple small abrasions over an area 3x1.5cm on front of right arm 2cm outer to injury No.15.
17.Abrasion 0.5x0.5cm on back of right forearm 3cm below elbow.
18.Abrasion 0.5x0.3cm on back of right middle finger 4.5 below its root.
7. The evidence of PW10 with Ext.P5 post mortem certificate conclusively establish that the death of Maheswaran was caused by the head injuries as it is clear from his evidence and the post mortem certificate that the heart showed subendo cardial haemorrhages in left ventricular wall and the frontal bone showed Crl.A.2660/08 12 fissued fracture across the left supra orbital margin with extension to floor of left anterior cranial fossa and extended across the pituitory fossa and caused subdural haemorrhages and subarachnoid haemorrhage. It is therefore conclusively proved that death of Maheswaran was caused by the injuries inflicted on his head.
8. The evidence of PW10 further showed that if the deceased was hit on his head by a concrete slab constituting MO6 series of broken slabs, the ante-mortem injuries 1 to 11 could be caused and normally, a concrete slab made of MO6 series of slab pieces would brake off when hit with force and if that slab is placed on the head of the deceased from a hight of 1= feet while the deceased was sleeping, the injuries and the death would be caused. On the evidence, we find no reason to disbelieve that evidence of PW10.
9. The question is, who inflicted the injuries on Maheswaran and caused his death. Learned Sessions Judge relied on the evidence of PWs 1 and 2 and held that an extra-judicial confession was made by the appellant to both PWs 1 and 2 on the night of the incident itself Crl.A.2660/08 13 by about 12.30 a.m and appellant disclosed to PWs 1 and 2 that he caused the death of Maheswaran by putting a concrete slab on his dead, taken from the bath room. Learned Sessions Judge also relied on the evidence of PW9, an employee of Hotel Ariyas, who was sleeping in the hotel who heard the appellant disclosing this fact to PW2. In addition, the learned Sessions Judge also took into consideration the fact that appellant was there along with the deceased in that room and appellant was seen with the deceased alive for the last time, on that night and in such circumstances, it is clear that appellant caused the death. Argument of the learned counsel appearing for the appellant is that the learned Sessions Judge should not have relied on the alleged extra-judicial confession proved by PWs 1 and 2. It was pointed out that the alleged extra-judicial confession disclosed in Ext.P1 is different from the extra judicial confession disclosed from the box. It was also argued that the evidence of PW2 also does not inspire confidence and when an extra- judicial confession is a very weak form of evidence, based on the extra-judicial confession alone, the appellant cannot be convicted. Learned counsel argued that if the evidence of PWs 1 and 2 is to be Crl.A.2660/08 14 believed, after committing the murder, appellant went to the hotel to borrow Rs.100/- from PW1, disclosing that he apprehends arrest and therefore, has to leave to his native place. It was argued that if appellant had committed the murder of his brother, he would not have gone to the hotel especially when he was aware that he would be arrested and he would have gone to his native place without disclosing it to anybody. Learned counsel also pointed out that even though appellant was not given any money by PW1, he did not leave Kayamkulam and was available in the hotel to be arrested by the police on the next day and it establishes that appellant has nothing to do with the murder. Learned counsel also argued that when PW9 is a hostile witness, his evidence that he heard the appellant talking to PW2 should not have been believed or relied on by the learned Sessions Judge. It was also argued that the statement of the appellant shows that he was not residing in the house along with the deceased and instead, he was staying in the hotel itself and in such circumstances, the finding that deceased was last seen alive with the appellant was not correct and when there is no direct evidence, and the circumstantial evidence are insufficient to unerringly point out the Crl.A.2660/08 15 guilt of the appellant, he is at least entitled to get the benefit on doubt, especially when appellant has no motive to kill his brother who brought him from Thenkasi and helped him to get an employment in the hotel.
10. The evidence of PW1 is that on the night of 22.11.2004, by about 12.15 a.m, appellant came to the hotel and called him and asked for money to go to his native place and he disclosed to PW1 that he caused the death of his brother by placing a stone on his head. According to PW1, he did not give the money and instead, PW1 called PW2 and informed him what was disclosed to him by the appellant and PW2 also ascertained that fact from the appellant and thereafter, PWs 1 and 2 sent PW3 and another employee, who were staying in the hotel, to the house to verify the correctness of the fact disclosed by the appellant and to find out whether Maheswaran was alive or not. The evidence of PW1 on this aspect is corroborated by the evidence of PW2. PW2 deposed that he was called by PW1 on that night and disclosed what the appellant disclosed to PW1 and he, in turn, asked the appellant and then appellant disclosed to him that he Crl.A.2660/08 16 caused the death of his brother Maheswaran by placing a stone on his head and the body was lying inside the room of that house. The evidence of PW3 corroborates the evidence of PWs 1 and 2, that PWs 1 and 2 called PW3 and the other employees and wanted them to go to the house to verify whether Maheswaran was alive or dead. True, there is some discrepancy in the evidence of PW1, from what was disclosed in Ext.P1. Though Ext.P1 discloses that PW1 had gone to the house and had seen the body of the deceased, PW1 admitted that he had not gone there and had only sent his employees, to verify the fact. It is also true that as against the version in Ext.P1 that appellant disclosed that he placed a stone on the head of Maheswaran and caused his death, PW1 deposed that what was disclosed to him by the appellant was that he placed a concrete slab on the head of Maheswaran and caused his death. The main difference in the versions is with regard to the stone mentioned in Ext.P1 FI statement and concrete slab mentioned at the time of evidence. It is to be borne in mind that when Ext.P1 FI statement was furnished by PW1, he had not gone to the house or seen the body, though it was disclosed in Ext.P1 that he had gone there. Therefore, PW1 has no knowledge as Crl.A.2660/08 17 to the nature of the stone used and was only aware of the fact disclosed by the appellant. Before his examination in court, PW1 was fully aware that the stone which was referred to by the appellant was a concrete slab, which was found broken into pieces near to the dead body inside that room. In such circumstances, when PW1 deposed before the court that the appellant had used the concrete slab instead of stone, it will not make much difference and is not sufficient to disbelieve the evidence of PW1 that appellant made a confession to him. The evidence of PW2 is that what was disclosed by the appellant to him was that a stone was placed by him on the head of the deceased and caused his death.
11. The stand taken by the appellant was that he was not staying in the house along with the employees of the hotel; but, was staying in the hotel itself. But, when PW3 was cross-examined and the co-inmates of the house including PWs 4 and 6 in addition to PWs 1 and 2, deposed that appellant was staying along with the deceased in that house, it was not challenged. It was not even suggested that appellant was not staying there in the rented house and was staying in Crl.A.2660/08 18 the hotel. Therefore, it is futile for the appellant at a later stage to contend at the time of questioning under section 313 of Code of Criminal Procedure that he was not staying there in the house and instead, was staying in the hotel. Though the appellant had a case that he was not there in the house on that night and was not aware of the murder of Maheswaran till he was informed after his arrest by the Circle Inspector, that fact cannot be believed. The evidence of PW9 is that he woke up on the night of 22.11.2004, hearing the talk between the appellant and PW2 and he heard the appellant telling PW2 that he caused the death of his brother Maheswaran. It was not even challenged in cross examination. Though PW9 was declared hostile, as he denied the fact that he was present at the time of inquest and he was one of the signatories to Ext.P4 inquest report along with PW8, that does not mean that the entire evidence of PW9 is to be discarded or ignored. PW9 though turned hostile to the prosecution case that he was a witness to the inquest, PW9 deposed that he was sleeping in that hotel on that night and he heard the talk between the appellant and PW2 and he heard the appellant disclosing to PW2 that he caused the death of Maheswaran. When this crucial evidence tendered by PW9 Crl.A.2660/08 19 was not challenged, it establishes two facts. Firstly, it would establish that appellant came to the hotel on that night as deposed by PWs 1 and 2 and he was not staying in the hotel and instead, was staying in the rented house as claimed by the prosecution. Secondly, it corroborates the evidence of PW2 that appellant made an extra-judicial confession to him, regarding the murder of the deceased.
12. The question, in such circumstances, is whether there is any reason to disbelieve the evidence of PWs 1 and 2 on the extra- judicial confession. First of all, it is to be borne in mind that appellant has no case that either PW1 or PW2 or PW9 was on inimical terms with the appellant. He has also no case that any of these witnesses have any grievance as against the appellant or have any reason to falsely foist a case against the appellant. When PWs 1 and 2 are natural witnesses, who have no enmity against the appellant and no reason to falsely depose against him, we find no reason for them to set up a false extra judicial confession. Therefore, on appreciation of the evidence of PWs 1, 2 and 9, we find no reason to disbelieve their evidence. Their evidence establish that appellant came to the hotel on Crl.A.2660/08 20 that night by 12.15 a.m and voluntarily disclosed to PWs 1 and 2 that he caused the death of his brother Maheswaran by placing a stone on his head and it is a true fact and was voluntarily made.
13. Though the Hon'ble Supreme Court in Heramba Brahma v. State of Assam [(1982) 3 SCC 351] held that the evidence of extra-judicial confession without examining the credentials of the witness, without ascertaining the words used, and without referring to the decision that extra-judicial confession, to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and the person selected in whom confidence is reposed cannot be accepted, that decision was rendered on the facts of that case. In that case, the alleged confession was made by the accused to another under trial prisoner in jail, who was not known to him earlier. There had been no previous association between them. In the said factual backdrop, it was observed that it was highly impermissible that such a confession would be made. In Ramashray Singh v. New India Assurance Co. Ltd. [(2003) 8 SCC 180], Crl.A.2660/08 21 Supreme Court laid the principle as follows:
"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passed the test of credibility."Crl.A.2660/08 22
It was thereafter observed :
"20. If the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by learned counsel for the respondent-accused, is a matter of prudence and not an invariable of law."
In Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516], it was held that extra-judicial confession as is well known, can form the basis of a conviction and only by way of abundant caution, however, the court may look for some corroboration. Extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved can be relied upon by the courts.
14. It was held in Nazir Khan v. State of Delhi [(2003) 8 SCC 461] that a free and voluntary confession deserve the highest credit, because it is presumed to flow from the highest sense of guilt. In Kulwinder Singh v. State of Punjab [(2006) 12 SCC 538], it was held that evidential value of extra-judicial confession must be judged Crl.A.2660/08 23 in the fact situation and it would depend not only on the nature of circumstances but also the time when confession had been made and the credibility of the witness who testifies thereto. The principles to be considered were laid down in Sahadevan v. State of Tamil Nadu [(2012) 6 SCC 403] as follows:
"16.Upon a proper analysis of the above referred 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 confession alleged to have been made by the accused:
(i)The extra-judicial confession is a week 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 Crl.A.2660/08 24 from any material discrepancies and inherent improbabilities.
(vi)Such statement essentially has to be proved like any other fact and in accordance with law."
15. When the extra-judicial confession made by the appellant to PWs 1 and 2 as proved by their evidence and that of PW9 is appreciated in the light of the principles settled by the Supreme Court, we find that the extra-judicial confession made to PWs 1 and 2 by the appellant are true and voluntarily made and inspire confidence. Their evidence is credible and reliable and there is no room to doubt their evidence. In such circumstances, learned Sessions Judge was perfectly right in relying on the evidence of PWs 1 and 2 that appellant came to the hotel on that night and disclosed to them that he caused the death of his brother. The fact that when PWs 1 and 2 sent PW3 to the house and he along with PW4 and 9 found the dead body of the deceased, in that room, where the appellant was sleeping along with the deceased, further establish that the evidence of PWs 1 and 2 that the appellant made the extra-judicial confession is true and that confession was voluntary and trustworthy.
Crl.A.2660/08 25
16. Added to this, the evidence of PW6, the employee staying along with the appellant and his deceased brother in the same house, establish that, on that fateful night, the appellant and the deceased alone were in that room, where the dead body of Maheswaran was found. His evidence further establish that earlier on that night, there was a quarrel between the appellant and the deceased as appellant lighted the room while Maheswaran was sleeping which was not liked by Maheswaran and when PW6 left the room by about 10.15 p.m, appellant and the deceased alone were in that room. Evidence of PW6 also show that he viewed the television for about five minutes and thereafter, slept along with others in the other room. That evidence of PW6 was not seriously challenged.
17. The evidence of PW6 establish that there was only the appellant and the deceased in that room where the dead body was found by about 12.30 a.m, when PW3 reached there on that night when he was sent there by PWs 1 and 2. When appellant alone was there along with the deceased and the deceased was found murdered Crl.A.2660/08 26 due to the injuries sustained on his head and that too by placing a concrete slab on his head, it is clear that appellant has a duty to explain what transpired. Section 106 of Indian Evidence Act, is to be applied in such a case. As appellant was seen with the deceased alive for the last time, appellant must explain what happened to the deceased thereafter. Appellant has not explained it. Instead of explaining what transpired there on that night, appellant took up a false plea that he was not staying in that house. Setting up of such a false case itself is an added circumstance, to prove the guilt of the appellant.
18. The evidence of PW14 with that of PW11, the scientific assistant establish that after the arrest of the appellant, PW11 collected cotton rubbings from both the legs and feet of the appellant and sent for chemical analysis. Ext.P19, the certificate of chemical analysis conclusively establish that when the said cotton rubbings collected by PW11 from the legs and feet of the appellant was examined at the laboratory, it was found that it contained Group 'O' of human blood, which is the blood group of the deceased. When Crl.A.2660/08 27 appellant has taken a case that he was not there in the house on that night and that he had not seen even the dead body of Maheswaran till he was arrested, presence of 'O' Group blood traces on the cotton rubbings collected from the legs and feet of the appellant could not have been there unless he was the culprit who inflicted the injuries on the deceased and caused his death. Therefore, it is an added link in the chain of circumstances. On appreciation of the entire evidence, we have absolutely no hesitation to hold that the proved circumstances unerringly point out the guilt of the appellant. The evidence conclusively establish that the proved circumstances are consistent only with the hypothesis of guilt of the appellant and are not incompatible with the innocence of the appellant. It is therefore conclusively proved that it was the appellant and no one else, caused the death of Maheswaran. The proved facts establish that appellant placed the concrete slab on the head of Maheswaran, with the intention to cause his death. Clause firstly of section 300 IPC therefore applies. Even otherwise, when the injuries so inflicted are sufficient in the ordinary course of nature to cause death and appellant put the concrete slab on the head of Maheswaran with the intention to Crl.A.2660/08 28 inflict those injuries, clause thirdly of section 300 of IPC would in any case apply. Though learned counsel argued that exception 4 of section 300 of IPC is attracted, we find no circumstances to find that appellant did the act without premeditation in a sudden fight. Hence, exception 4 of section 300 is not attracted and the offence could only be punishable under section 302 of Indian Penal Code. In such circumstances, conviction of the appellant for the offence under section 302 of IPC can only be confirmed. We find no reason to interfere with the sentence also.
The appeal is dismissed confirming the conviction and the sentence.
M.SASIDHARAN NAMBIAR (JUDGE) C.T. RAVIKUMAR (JUDGE) spc/ Crl.A.2660/08 29 M.SASIDHARAN NAMBIAR & C.T. RAVIKUMAR, JJ.
CRL.A.No.2660 OF 2008 Judgment 14th September, 2012.
Crl.A.2660/08 30