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Kerala High Court

Rijo Joseph vs State Of Kerala on 14 October, 2009

Bench: K.Balakrishnan Nair, P.Bhavadasan

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1804 of 2005()


1. RIJO JOSEPH, CONVICT NO.4254,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA.
                       ...       Respondent

                For Petitioner  :SRI.B.RAMAN PILLAI

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :14/10/2009

 O R D E R
                                          C.R.


          K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
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                     Crl. Appeal No. 1804 of 2005
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              Dated this the 14th day of October, 2009.

                                    JUDGMENT

Bhavadasan, J, This case discloses the story of a good student, well behaved boy, liked by his teachers and companions, and who had considerable expectations about him, transforming into a villain and landing in prison. If true, this is a typical instance where a teenage boy exposed suddenly to the outside world got caught in the mesh of luxurious life and drugs, and ruined himself. His parents had toiled hard to fund his studies. They borrowed money from people and people generously contributed. Nobody noticed the transformation that was going on in him, until it culminated in a shocking incident on 16.6.2000.



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2. 16.6.2000 morning turned out to be a horrifying one to the people of Neeleswaram Kara, Kalady Village. The story goes thus:

The deceased, the injured, P.Ws. 2 and 4 reside in the same house. P.Ws. 5 and 6 are neighbours. P.W.6 is the sister of P.W.5. Though P.W.6 was married, she was staying with her brother since her mother was ill at the relevant time. In fact the accused and the witnesses knew each other very well. It would appear that the family of the deceased used to extend financial aid to the accused, to continue his nursing course in Karnataka, since quite often P.W.16, the father of the accused found his income insufficient to meet the education and other requirements of his son.

3. The incident occurred on 16.6.2000 at about 7.30 a.m. P.W.5 is a salesman. He was taking his bath. P.W.5 and  Crl.A.1804/2005. 3 P.W.6 heard the wails of P.W.1. They rushed to the spot from where the cry had come. They found P.W.1 lying near a nut-meg tree. They asked her what had happened. She was bleeding from wounds on her body. She said that it was the accused who had caused the wounds. She asked for water. It was raining. Water that had collected near the nut-meg tree was given to her by P.W.6. P.W.4, the husband of P.W.1, had left for work early in the morning on that day. Hearing the cries, other people also gathered at the spot. P.W.1 told them that her mother-in-law was lying behind the house. Some of the people, who had gathered, picked up the mother-in-law from there and laid her on the varenda. P.W.1 was also laid on the varenda. P.W.4 was informed. Vehicles were brought and the injured were removed to the hospital. C.W.21, who is closely related to the deceased was informed over phone. He went to Little Flower Hospital,  Crl.A.1804/2005. 4 Angamaly, where the injured had been taken. He found the deceased in an unconscious state. But P.W.1 had regained consciousness. P.W.19, the Doctor, had attended to them at Little Flower Hospital. Ext.P15 is the wound certificate relating to the deceased, and Ext.P20 is the wound certificate of P.W.1. C.W.1 came to know of the details from the hospital. Getting intimation of the incident at Kalady Police Station, ASI, C.W.44, went to the hospital. As the injured was unable to give statement, the statement was taken from C.W.21, who furnished Ext.P21 first information statement. C.W.44 is no more. C.W.44 then registered crime as per Ext.P22 FIR. Meanwhile, Mariyamkutty, the mother-in-law of P.W.1 died in the hospital on 20.6.2000. P.W.24, the Circle Inspector of Police, had taken over investigation on 16.6.2000. He had prepared Ext.P4 scene mahazar. He had also recovered blood stained plastic bucket,  Crl.A.1804/2005. 5 pillow cover and blood stains from the scene of occurrence. He directed P.W.23 to conduct inquest over the body of Mariyamkutty. Thereupon, P.W.23 conducted the inquest and prepared Ext.P13 report. As authorised by P.W.24, P.W.23 arrested the accused on 20.6.2000 at about 11.15 a.m. and produced him before P.W.24. Ext.P11 mahazar was also prepared. The bag and other materials in the possession of the accused at the relevant time were seized, i.e., M.O.7, bag and its contents, M.Os.15 and 16 etc. In the meanwhile the body of Mariyamkutty was sent for postmortem examination. P.W.20, the Forensic Surgeon conducted autopsy over the body of Mariyamkutty and prepared Ext.P17 report. P.W.24 recorded the statement of witnesses. On the basis of the confession statement said to have been given by the accused, M.O.1 weapon was seized as per Ext.P1 mahazar. He had also got M.O.19 seized. M.O.3 was  Crl.A.1804/2005. 6 recovered as per Ext.P4 based on the confession statement of the accused. Based on Exts. P6(a), P8(a) and Ext.P10(a) confession statements given by the accused while in custody, gold ornaments, of which theft was committed by the accused were recovered from various places. The accused was examined by P.W.21 the doctor and Ext.P19 certificate was obtained. P.W.24 had the materials collected by him during investigation sent for chemical analysis through court. Ext.P18 is the report. He completed investigation and laid charge before Judicial First Class Magistrate, Perumbavoor.

4. JFCM, Perumbavoor took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. The learned Magistrate found that the offence is one exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Ernakulam.  Crl.A.1804/2005. 7 The said court made over the case to Additional Sessions Court, North Paravur for trial and disposal.

5. On receipt of records, the said court issued summons to the accused and he entered appearance. After hearing both sides, charges were framed for the offences punishable under Sections 449, 392 397 and 302 Indian Penal Code. To the charges, the accused pleaded not guilty and claimed to be tried. Prosecution had therefore P.Ws. 1 to 24 examined Exts.P1 to P23 marked. M.Os. 1 to 19 were identified and marked. Defence had Exts.D1 to D5 marked. Exts. C1 and C2 were marked as court exhibits. After the close of the prosecution evidence, the accused was questioned under Section 313 of the Criminal Procedure Code. He denied all the incriminating circumstances brought out against him and maintained that he had been falsely implicated in the case. He stated that on 16.6.2000 the police had taken him into custody  Crl.A.1804/2005. 8 from Chitradurgah and at that time Adv. Anto and Kolencherry Joy were with him. He was brought to Thrissur and again taken to Bangalore. He claimed that he never stayed at Bangalore, but used to go to Chitradurgah directly, which was 200 meters away from Bangalore. He was top in the class in the first year examination and the second year examination was fast approaching. He had come to his native place in May, 2000 and returned after two or three days. Till 16.6.2000 he was regularly attending classes. It was then that he was arrested. He was studying in a Seminary for three and a half years and thereafter he had gone for nursing course.

6. Presumably finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. On appreciation of the evidence the court below found that the prosecution has succeeded  Crl.A.1804/2005. 9 in establishing the case against the accused and convicted and sentenced him to undergo rigorous imprisonment for a period of one year under Section 449 I.P.C., rigorous imprisonment for a period of seven years under Section 397 IPC and rigorous imprisonment for a period of seven years under Section 307 IPC. He was also sentenced to undergo imprisonment for life under Section 302 I.P.C. The said conviction and sentence are assailed in this appeal.

7. The question that arises for consideration is whether the court below has erred in any manner in entering the convictions.

8. Late Mariyamkutty, P.Ws. 1, 4, 5 and 6 were neighbours. So were the accused and his family. The family of the accused was financially very poor. The accused joined for nursing course in Chitradurgah. P.W.16, the father of the accused, has  Crl.A.1804/2005. 10 stated that he used to receive financial aid from the family of the deceased for the studies of his son. The prosecution case is that after joining the Nursing Course the accused developed extravagant habits and he found money wanting for his activities. He did not have the financial resources to meet his demands and needs. So he planned to commit robbery. He found his neighbourhood most convenient as he new about the assets of the family. In an attempt to rob P.W.1 and Mariyamkutty, when they resisted he inflicted fatal injuries on them. Mariyamkutty, the mother in law of P.W.1 succumbed to the injuries. Fortunately P.W.1 survived. The weapon used was M.O.1.

9. The prosecution mainly relied on the evidences of P.Ws. 1, 2, 5, 6, 7, 9, 10 to 15, 23, 24 and Exts.P1(a), P6(a), P8(a), P10(a), P23 and P1, P6, P8 and P10 to prove their case.

10. P.W.1 is one of the victims, who was fortunate  Crl.A.1804/2005. 11 enough to survive. P.W.2 is her son and he was aged five years at the relevant time and he too claims to have been attacked by the accused. P.Ws. 5 and 6 are neighbours of P.W.1. P.Ws. 7 and 9 are persons who had occasion to see the accused in the house of P.W.1 on the date of the incident at the relevant time. P.Ws. 10 to 15 pawn brokers who had occasion to receive gold ornaments stolen by the accused and had advanced amounts and from whom recoveries were made by the investigating officer and witnesses to the said recovery. P.Ws. 23 and 24 are the officers, who conducted the investigation of the case and had arrested the accused.

11. P.W.1 says that the incident had occurred on 16.6.2000 at about 7 a.m.. The accused and his family were her neighbours. She belongs to Neeleswaram. She was brought to Manikkamangalam on her marriage to P.W.4. On the date of the incident, her husband P.W.4 had gone to Trivandrum early in the  Crl.A.1804/2005. 12 morning. P.Ws. 1, 4 and their two children along with the deceased were residing in the house. As P.W.4 had left early morning on the date of the incident, she went back to bed. At about 7 a.m., she was woken up by the cries of 'thief' by her mother in law. She heard the sound from the bathroom. She rushed to the place and found her mother in law was being repeatedly attacked by the accused with M.O.1 chopper. Several injuries were inflicted on her head. She claimed that she had pushed aside the accused and asked why he was doing so. Her mother in law fell down. She states that the accused then closed her mouth with his hands and she bit him on his fingers. Then he repeatedly attacked her with M.O.1 and caused several injuries. She fell down. He removed the bangles worn by her cutting her wrists and also removed the ornaments from the body of the deceased. Even though she tried to cry aloud, she could not raise  Crl.A.1804/2005. 13 her voice. She remained there for some time. Thereafter she managed to run towards the southern side. She called P.W.6, who was her immediate neighbour. P.Ws. 5 and 6 came immediately and she told them what the accused had done. She informed that her mother in law was lying in the bathroom behind the house. She also claims to have given the phone numbers of P.W.4 and her father. By that time, people had gathered at the spot. P.W.1 and the deceased were removed to Little Flower Hospital, Angamaly in separate vehicles. Her mother in law died in the hospital and she had to undergo treatment for 18 days. M.O.1 belongs to them. She identified all the ornaments said to have been recovered by the investigating officer.

12. P.W.2 is the child of P.Ws. 1 and 4. He was aged 5 at the time of the incident. The child speaks about the incident. P.W.2 identified the accused and claimed that the accused resides  Crl.A.1804/2005. 14 near his house. He claimed that both his mother and grandmother suffered injuries at the hands of the accused. He would state that the accused came inside the house and then removed the gold chain and gold griddle of his brother. He tried to suffocate him with a pillow. Then the calling bell rang and the accused ran away.

13. P.W.3 says that he was acquainted with P.Ws. 1 and 2 and the deceased as well as the accused. He knew about the injury suffered by P.W.1 and her mother in law. He came to know about the incident and rushed to the spot. He happened to see P.W.5 and 6 nearby and P.W.1 was lying in the varenda. He claims that P.W.1 told him that it was the accused who had inflicted injuries on her. P.W.1 also told him that her mother in law was lying in the bath room. They were removed to the hospital. He deposed that later the police brought the accused to the place and recovered M.O.1 from a canal nearby at the instance  Crl.A.1804/2005. 15 of the accused. Accused took M.O.1 chopper from the canal and he had affixed his signature in Ext.P1.

14. P.W. 4 is the husband of P.W.1 and the deceased is his mother. He is a contractor by profession. On the date of the incident, for going to Trivandrum he left the house at 5.30. a.m. When he reached Tripunithura while travelling in a train, he received information about the incident. He got down at the next station and returned in a car. When he reached near his house he got the information that the injured had been removed to the hospital. He went to the hospital and found his wife lying in a stretcher outside the operation theater. She told him that the accused had attacked his mother. She also told him that when she went to the aid of her mother-in-law hearing her cries, he found the accused repeatedly inflicting the injuries on the deceased with M.O.1. She tried to push away the accused and then the accused  Crl.A.1804/2005. 16 caught hold of her by her hair and attacked her with M.O.1. She also told him about the accused taking away the ornaments worn by her and her mother in law. He identified M.O. 1 (chopper), M.O.4 (four bangles) and M.O.5 (four bangles). He would also state that the accused was studying for nursing at Bangalore.

15. P.W.5 is working in Vidyarthimithram Book depot at Ernakulam. The residential plots of P.Ws.4 and 5 lie as a contiguous one without any well demarcated boundary. He leaves for work only after 8 a.m.. The accused is familiar to him. P.W.6 is his sister and she is married to a person at Kottayam. He claims to know about the incident. He would say that during the relevant time P.W.6, whose husband was working abroad, was staying with him and looking after their mother, who was sick. The incident occurred between 7 a.m. and 7.30. a.m. On 16.6.2000, while he was taking his bath, he heard P.W.1 calling  Crl.A.1804/2005. 17 his sister P.W.6. The cries of P.W.1 came from the northern side of his house. P.Ws. 5 and 6 rushed to the place. They found P.W.1 lying near a nut-meg tree. He asked her what had happened. P.W.1 told him that it was the accused who had caused the injuries to her. It was raining then and she asked for water. They gave the water that was collected below the nut-meg tree. She gave him the phone numbers of P.W.4 and her house. He would say that by that time quite a few people had gathered at the spot. P.W.1 then told him that the deceased was lying behind the house and they went in search of her. They found her and carried her to the northern varenda of the house. They carried P.W.1 and laid her down on the southern side of the house. He informed P.W.4 about the incident. Thereafter he along with others removed the injured to the hospital in two vehicles. He also accompanied them. He was present when the doctor examined P.W.1. Information was given  Crl.A.1804/2005. 18 by him to the doctor.

16. P.W.6 is the sister of P.W.5. She too says about the incident. She gave an identical version like P.W.5. It is unnecessary to narrate her evidence in detail. She would say that at the time of cremation of Mariyamkutty, the accused was brought by the police.

17. P.Ws. 7 to 9 were examined to prove that the accused was found near the place of incident at about the time on the date of the incident. P.W.7 is the person, who claims to have pressed the calling bell of the house of P.W.1 at the time of the incdent. He claims to have seen the accused in the house of P.W.1. His evidence is not of much significance.

18. P.W.10 claims to be the Director of Parrys Chit Company at Thrissur. He knows the accused. He would say that the accused came to his branch to pledge ornaments on 16.6.2000  Crl.A.1804/2005. 19 at about 10.30 a.m. He had brought a gold chain to pledge. P.W.10 deposed that at the time of pledge, a receipt is given to the pawner. Later the police had to come his business concern along with the accused and he had shown them the records. M.O.3 was seized from his shop. He identified M.O.10 as the ticket given to the accused at the time of pledging M.O.3. M.O.11 is the relevant register. He identified his signature in Ext.P4 mahazar prepared at the time of seizure of M.O.3. He had got the original register back on kychit and it was brought to the court at the time of giving evidence. M.O.11 is the relevant ledger. M.O. 12 is the voucher. He identified the signature of the accused on M.O.12.

19. P.W.11 is the Proprietor of Wardhaman Bankers. He says that whenever gold is taken, a receipt is given. He identified M.O.13 as the receipt issued by him. He stated that on 17.6.2000 two persons had come to his concern. He names one of  Crl.A.1804/2005. 20 them as Joby and he identified the accused as the other person. As per M.O.13 four bangles were pledged and he identified M.O.4 series as the ornaments. He paid Rs.7500/-. He had brought the ledger to the court and he located the relevant entry at page 138. He says that after a week of pledging the ornaments, police had come to his business concern and recovered the gold ornaments pledged by the accused. Police had also brought the accused with them. Ext.P7 is the relevant mahazar, by which the register was recovered and Ext.P6 is the mahazar regarding recovery of ornaments.

20. P.W.12 runs a concern by name Payal Bankers. It is a family business. At the time of pledging, the pawner is given a receipt called pawn ticket. He identified M.O.14 as the ticket issued to the accused, which contained his signature. He would say that going by the records four bangles were pledged with the  Crl.A.1804/2005. 21 bank on 17.6.2000. Pledge was effected by a person by name Reji. He would recollect that Reji was accompanied by another person and he identified the accused as the said person. He had to pay Rs.10,000/- to them. Since he did not have the sufficient cash, he paid Rs.5000/- to Reji and his companion. He found it difficult to identify M.O.5 bangles. However, he recollected that a few days after the pledge, police had come to his shop and police had brought two persons with them and they were identified by him as Reji and the accused. He claims that police had prepared mahazar at his business place and he had signed in the mahazar. He claims that police had verified the register in his concern and had returned it to him. Rajendra Kumar was not in station. He is familiar with the signature of Rajendra Kumar, who was the proprietor of the concern and he claims that the pawn ticket was given to the pawner by him. M.O.14 is in his handwriting.



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21. P.W.13 is none other than Reji. He says that the accused is familiar to him. When he studied for Nursing course at Bangalore the accused was his junior in the college. The accused used to visit him. He says that earlier he was working with Coco Cola Company and he was staying at B Dasra Hally. Now he was residing with Jinson and Joby. He knows Payal Bankers at Bangalore. He deposed that the accused had entrusted four bangles and a bracelet to him to pledge at Payal Bankers. He claims that he had pledged the above articles as per M.O.14 ticket and he was to be paid Rs.10,000/-. But only Rs.5,000/- was paid initially and that was handed over to the accused. He identified M.Os.5 and 6 as the ornaments pledged by him. He deposed that the accused had told him that the ornaments belonged to his mother and she gave it to him since they had no money to pay his fees. This witness deposed that the police brought the accused and  Crl.A.1804/2005. 23 enquired about the pledge. He along with the accused was taken to Payal Bankers and then M.O.5 was seized. Police prepared Ext.P8 mahazar and he affixed his signature on the same. He also deposed that the police had examined the relevant registers of Payal Bankers. He identified his signature on Ext.P9 mahazar. He also claimed that he had gone to Payal Bankers along with the police and from there also bangles were seized. He identified his signature on both Ext.P6 and Ext.P7. He says that the accused was a spend thrift.

22. P.Ws. 23 and 24, as already referred, are the investigating officers. Ext. P1(a) is the portion of the confession statement which led to the recovery of M.O.1. Ext.P6(a) is that portion of the confession statement which led to the recovery of bangles from Vardhaman Bankers run by P.W.11. Ext.P8(a) is the portion of the confession statement given by the accused, which  Crl.A.1804/2005. 24 led to the recovery of ornaments from Payal Bankers run by P.W.12. Ext.P.10(a) is the portion of the statement which led to the recovery of M.O.3 from the chitty company run by P.W.10. These are the main items of evidence.

23. The court found the above clinching items of evidence are convincing enough to hold that the prosecution has succeeded in establishing the case against the accused.

24. Learned counsel appearing for the appellant pointed out that the prosecution story is nothing but a cock and bull story. The items of evidence relied on to hold the accused guilty in fact cannot establish the role of the accused at all. The evidence is to the effect that the deceased, P.W.1, and her family members knew the accused well. Still the deceased at the time of attack only cried loud ' ' (thief thief). If it was the accused who was the culprit, nothing prevented the deceased  Crl.A.1804/2005. 25 from identifying him and calling him by his name. The fact that the deceased did not call the assailant by name shows that someone else was involved. Attention of this court was drawn to Exts.P15 and P16, which are the wound certificates relating to the deceased and P.W.1 respectively drawn up by P.W.19. In Ext.P15 in the column relating to 'history and alleged cause of injury', what is stated is 'assault by a thief at home at 7 a .m.' In Ext.P16, the relevant entry is 'assault by a thief who attacked her mother while she tried to rescue her mother at 7 a.m.'

25. Learned counsel for the appellant raised two points on the basis of the above statements. They are i) going by the evidence of P.W.5 he had gone to the hospital when P.W.1 and the deceased were taken to the hospital. He also says that information was given to the Doctor by him. If so, they could not have told the Doctor about the thief since the knowledge of  Crl.A.1804/2005. 26 P.W.5 and others about the incident was from P.W.1, who had not told that any theft was committed. If so, the Doctor could not have been told that the assault was by a thief, and ii) If in fact it was the accused who did the act, P.W.5 and others would have surely mentioned his name to the Doctor. Absence of the name of the accused and the mention of assault by a thief causes considerable doubt about the prosecution case.

26. Learned counsel then pointed out that the portions of the confession statements, which are alleged to have led to the recovery of M.Os. 1 and 3 to 6 are not admissible in evidence under Section 27 of the Indian Evidence Act since they contain inculpatory statements and the recoveries said to have been effected are not in accordance with law. It is pointed out that (a) the officer who had recovered the materials is not the officer to whom the confession statements were given and (b) Joby, who  Crl.A.1804/2005. 27 was involved in one of the recoveries was not examined.

27. It was also contended that if the prosecution allegations are true, the accused did not have to go to Bangalore to pledge the ornaments. He could have done it in Kerala itself. In fact, one of the ornaments is recovered from a concern at Thrissur. The socalled recovery made from Bangalore is highly improbable , suspicious and is stage managed.

28. Considerable emphasis was laid on the entries in Exts.C1 and C2 remand reports. According to the learned counsel for the accused, the case for the defence is that the accused was taken into custody from Chitradurgah on 16.6.2000 itself and kept under illegal custody thereafter the recoveries were planned. Drawing the attention of this court to Exts.C1 and C2, it was pointed out that going by the remand reports the FIS was given by the informant, who had come to the police station. But going by  Crl.A.1804/2005. 28 Ext.P21 and the prosecution evidence, the A.S.I. attached to the police station, namely Sasidharan Pillai had gone to Little Flower Hospital, Angamaly and recorded the FIS from the hospital. This glaring contradiction, according to the learned counsel, cuts at the root of the prosecution case.

29. Learned counsel for the appellant pointed out that the evidence of P.W.2 cannot be accepted. It is evident from the statements given by the child that he was tutored. According to learned counsel, the court below has erred in law in accepting that evidence.

30. The cumulative effect of the above facts and the weak items of evidence, according to the defence counsel is that it puts the prosecution case on a very low profile and at any rate it cannot be said that the prosecution has proved the case beyond reasonable doubt. According to learned counsel, the accused at  Crl.A.1804/2005. 29 any rate is entitled to benefit of doubt.

31. Per contra, learned Public Prosecutor pointed out that there is no merit in any of the contentions raised by the appellant and they are not tenable. The lower court has discussed the evidence in detail and has found that offences have been established by the prosecution. The evidence furnished by P.W.1 is clinching and convincing enough. She is the injured witness. The evidence furnished by P.Ws. 5 and 6 and others fall under the category res gestae evidence. The criticism levelled against the recoveries and the confession statement are unfounded. The statements relied on for the recovery satisfy the legal requirement and recoveries have been effected in accordance with law. The learned Public Prosecutor contended that it is not the law that the officer to whom the confession statement is given alone can effect the recoveries. Based on such confession statements said to have  Crl.A.1804/2005. 30 been given to a police officer while in custody, any other investigating officer or police officer authorised by the investigating officer can effect recovery. The only requirement is that the statement made and the recovery should satisfy the legal requirements. The learned Public Prosecutor then pointed out that the reliance placed on Exts.P15 and P16 is totally baseless. The purpose of the wound certificate is not to disclose the name of the assailant or to disclose the intention and motive of the objectionable acts committed. The Doctor concerned is not expected to ascertain the material details regarding such matters. So also the wound certificates are also not expected to contain such details. Even assuming that there are some such errors in wound certificates, they are inconsequential.

32. Learned Public Prosecutor emphasized that the recoveries of ornaments have been effected by following the legal  Crl.A.1804/2005. 31 principles and required procedures. The portion of the confession statement which led to the recovery satisfy the legal requirements and the presence of the accused at the time of recovery is proved. All those statements are admissible under Section 27 of the Indian Evidence Act and suffer from no infirmities. Learned Public Prosecutor pointed out that even assuming that any one of those statements fall short of requirements under Section 27, still the act of recovery effected is a fact relevant under Section 8 of the Indian Evidence Act.

33. As far as P.W.2's evidence is concerned, it is clear from the records that voire dire test has been conducted by the court below. True, the questions asked to the child witness have not been extracted in the deposition. But being a official act, the presumption is that it has been done in accordance with law. According to the learned Public Prosecutor, at any rate the  Crl.A.1804/2005. 32 evidence of P.W.2 is sufficient to show the presence of the accused at the relevant place on the date and time of the incident.

34. Learned Public Prosecutor then drew attention of this court to the fact that P.Ws.1, 2, 3, 4, 5 and 6 etc. had no reason to falsely implicate the accused. There is no suggestion to any of those witnesses to that effect. All of them are his neighbours. It is also pointed out that it is ridiculous to suggest that P.Ws. 1 and 3 to 6 would let the real culprit to escape and falsely implicate the accused for no reason whatsoever.

35. According to the learned Public Prosecutor, even assuming that there is some error in entries in Exts.C1 and C2, that is too insignificant to throw out the entire prosecution case. Flaws in investigation cannot result in rejecting the prosecution case. Even assuming that such infirmities do exist, there is nothing in Exts. P21 and P22 to show that Ext.P21 is not the original FIS.  Crl.A.1804/2005. 33

36. It must be said that the contentions raised by the appellant do not have much substance. A court is called upon to appreciate the evidence conscious of its social obligations. There can be no precedent in the matter of appreciation of evidence. May be precedence are of some guidance. Each case depends upon its own facts. The court has to see whether the evidence available on record is sufficient to establish the guilt of the accused.

37. It is will be useful to refer to the decision reported in Lalliram v. State of M.P. ((2008) 10 SCC 69) in this regard. In the said decision, it was held as follows:

"In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar Case it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in  Crl.A.1804/2005. 34 material particulars. She stands on a higher pedestal than the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of prosecutrix on the face value, it may search for evidence direct or circumstantial."

Therefore the evidence on record will have to be evaluated and conclusions drawn.

38. P.W.1, as rightly pointed out by the learned Public Prosecutor is an injured witness. She knew the accused and his family very well. The evidence of P.W.16, the father of the accused is to the effect that the family of P.W.1 used to extend financial help to them. She gives a detailed version of the incident. Her evidence is flawless. She has stated how the incident had occurred and how she had suffered injuries. Ext.P16 is the wound certificate relating to this witness. It is seen that she had suffered  Crl.A.1804/2005. 35 as many as six incised wounds on her head. In fact Ext.P16 recommends recording of a dying declaration. That shows the severity of the injuries suffered by her. She was subjected to extensive cross-examination but she has given a consistent, uniform and credible version of the incident. No justifiable reasons are shown as to why she should chose to falsely implicate the accused letting the real culprit to escape.

39. One must notice that P.W.1 is an injured witness. It is well settled that the evidence of an injured witness cannot be easily discarded. It is presumed that an injured witness will not let the real culprit escape and implicate another person who had nothing to do with the incident. Unless it is shown that the evidence tendered, suffers from glaring infirmities, the court will not justified in discarding the evidence of such a witness. In this regard, it will be useful to refer to a few decisions regarding  Crl.A.1804/2005. 36 appreciation of evidence.

40. In the decision reported in Yashoda v. State of M.P. ((2004) 3 SCC 98), it was held as follows:

"Law does not permit a court to speculate or conjecture so as to imagine events about which there is absolutely no evidence on record."

41. In the decision reported in State of H.P. Lekh Raj ((2000) 1 SCC 247), it was held as follows:

"Referring to and relying upon the earlier judgments of this Court in State of U.P. v. M.K. Anthony, Tahsildar Singh v. State of U.P., Appabhi v. State of Gujarat, Rammi v. State of M.P. And this Court in a recent case Leela Ram v. State of Haryana held:

"There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor  Crl.A.1804/2005. 37 embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.......

The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise."

One of the discrepancies which persuaded the High Court to disbelieve the prosecution evidence is the alleged shifting of the place of occurrence from the main road to 20 feet away from it. The prosecutrix has categorically stated that she was dragged from the road down the path which was about 20 feet away from the road and raped there. The discrepancy or contradiction pointed out is that in the Fir which was  Crl.A.1804/2005. 38 submitted in writing and was in the English language, the place of occurrence was mentioned as road. Such mention was based upon recording of the complaint by Shri.S.P. Parmar, Advocate, after hearing the narration of the prosecutrix whom he found at that time to be scared, nervous and hesitant. Such a discrepancy cannot be held to be a major discrepancy amount to contradiction under the circumstances of this case. It is not disputed that the statement of the prosecutrix under Section 161 was recorded immediately and in that statement she had not alleged to have stated that the occurrence had taken place on the road and not away from the road. She was categoric in stating that the accused persons grappled with her on the path and took her down at a distance of about 20 feet where they committed the crime. It is alleged that such a discrepancy was fatal inasmuch as the road was a motorable one and had the occurrence taken place there, a number of witnesses could have seen the occurrence. The argument is without any substance  Crl.A.1804/2005. 39 inasmuch as it has come in evidence that the road was not a thoroughfare and only one or two vehicles used to ply on it.

The High Court appears to have adopted a technical approach in disposing of the appeal filed by the respondents. This Court in State of Punjab v. Jagir Singh held:

"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."



Crl.A.1804/2005. 40

The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of th victim and the accused, the larger interests of the society particularly the law and order problem, and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The  Crl.A.1804/2005. 41 traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian though but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind."

42. In the decision reported in Kulesh Mondal v. State of West Bengal (AIR 2007 SC 3228), it was held as follows:

"As observed by this court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a  Crl.A.1804/2005. 42 witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krisha Mochi and Ors. v. State of Bihar etc. (JT 2002(4) SC 186)."

43. In the decision reported in Munshi Prasad v. State of Bihar (AIR 2001 SC 3031), the court held as follows:

"Incidentally, be it noted that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be  Crl.A.1804/2005. 43 justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra note, as well, on perusal of the evidence on record. In this context reference my be made to two decisions of this court. The first being the State of U.P. v. M.K. Anthony (1985) 1 SCC 505 as also a later one in the case of Leela Ram v. State of Haryana (1999) 9 SCC 525. Needless to record that difference in some minor detail, which does not otherwise affect the core of the prosecution case, may be there bu that by itself would not prompt the Court to reject the evidence on minor variations and discrepancies. In Leela Ram (1999 (9) SCC 525) this court observed in paragraph 9 of the report:

"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in  Crl.A.1804/2005. 44 the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in the jettisoning his evidence. But too serious a view to be adopted or mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."

This Court further observed : (1999(8) SCC 649) ................ ...............

"To contradict a witness therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness.(vide Tahsildar Singh v. State of U.P. AIR 1959 SC 1012."

The issue, therefore, is whether the evidence available o records is otherwise trustworthy and an acceptable piece of evidence: In the contextual facts the answer is in the affirmative and both the trial court and the High Court have also considered the same to do so."

44. It is often said that the prosecution has to prove the  Crl.A.1804/2005. 45 case against the accused beyond reasonable doubt. As already noticed, there is no fixed formula or rules regarding the appreciation of evidence. The doubt that is to be removed is to be that of a reasonable man and not all kinds of speculations and fanciful imaginations. It does not mean beyond all possible doubts. True a higher degree of proof is insisted in criminal cases that in civil cases, though the Evidence Act does not draw any distinction between civil and criminal cases. The doubt must be of a reasonable man, or by the stand adopted by a reasonable man. Doubts to be reasonable should be free from speculations. It must be actual and must arise from the evidence or lack of evidence before court. All trivial or fanciful notions cannot be treated as reasonable doubt. Extreme or unusual notions of reasonable doubt cannot be countenanced. The court should not import anything into the evidence. In this regard reference may be made to a few  Crl.A.1804/2005. 46 decisions of the Apex Court. In the decision reported in State of Punjab v. Sukkhchain Singh (AIR 2009 SC 1542), it was held as follows:

"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [See "The Mathematics of Proof II": Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell.p. 340(342)]:

"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be  Crl.A.1804/2005. 47 dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to b multiplied together. The one piece of evidence may confirm the other."

Doubts would be called reasonable if they are free from the zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible  Crl.A.1804/2005. 48 doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."

45. In the decision reported in Vithal Pundalik Zendge v. State of Maharashtra (AIR 2009 SC 1110) , it was held as follows:

"On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, 1872 the following propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by a statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in  Crl.A.1804/2005. 49 the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes."

46. In the decision reported in Chhotanney v. State of Uttar Pradesh (AIR 2009 SC 2013), it was held as follows:

"Doubts would be called reasonable if they are free from the zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable  Crl.A.1804/2005. 50 doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."

Further consideration of evidence shall be made on the basis of the principles laid down in the above decisions. It has already been noticed that there is no reason to doubt the version given by P.W.1. Apart from the fact that she is an injured witness, it has also to be noticed that there is not even a suggestion to her as to why she should falsely implicate the accused, who is a poor nursing student in her neighbourhood. Coming to the evidence of P.W.2, it does suffer from some infirmities. It would appear from the statement of that witness in cross-examination that he had been tutored. It may not be safe to rely on his evidence in its entirety. However as rightly pointed out by the learned Public Prosecutor, the presence of the accused at the place of the incident on the day and time of the incident is proved. True the witness also says that there was an  Crl.A.1804/2005. 51 attempt on the part of the accused to suffocate him to death. But it may not be safe to accept that statement for want of corroboration especially there are indications to show that P.W.2 could be a tutored witness.

47. The evidence of P.W.4, the husband of P.W.1 may not be of much significance except that he had got the information and gone to the hospital. The evidence of P.Ws. 3, 5 and 6 fall in the category of res gestae evidence. One may recollect that they had come to the spot hearing the wails of P.W.1, the injured witness. She had told them as to what had happened. P.W.5 would say that P.W.1 asked for water and P.W.1 was given water by P.W.6. P.W.1 also told them that her mother in law was lying behind the house injured. By that time, according to these witnesses, others had gathered at the scene and what followed thereafter is spoken to by these witnesses. Obviously they have  Crl.A.1804/2005. 52 not seen the incident and their information regarding the incident is that given by P.W.1.

48. Section 6 of the Indian Evidence Act reads as follows:

"6. Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."

49. The essential feature is that if a fact, which is not in issue, but which is connected to the fact in issue as to form part of the same transaction, it is admissible. As per the above provision, it has been held that the statements by an injured witness to those who come immediately to the place, regarding the incident are admissible in evidence. The principle is known as res gestae.  Crl.A.1804/2005. 53

50. In the decision reported in Sukhar v. State of Uttar Pradesh (AIR 1999 SC 3883), it was held as follows:

"Sarkar on Evidence (Fiftenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus:

"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover, the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.

2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.

3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and by- standers. In conspiracy, riot & c. the declarations of  Crl.A.1804/2005. 54 all concerned in the common object are admissible.

4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated."

This court in Gentela Vijayavrdhan Rao v. State of A.P. (AIR 1996 SC 2791) considering the law embodied in Section 6 of the Evidence Act held thus "The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" speaking, in exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same  Crl.A.1804/2005. 55 transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae."

In another recent judgment of this Court in Rattan Singh v. State of H.P. (AIR 1887 SC 768), this court examined the applicability of Section 6 of the Evidence Act to the statement of the deceased and held thus :

".............The aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration 'A' to Section 6 makes it clear. It reads thus:

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or  Crl.A.1804/2005. 56 after it as to form part of the transaction, is a relevant fact.

Here the act of the assailant intruding into the courtyard during death of the night, victim's identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and place that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act."

Applying the ratio of the aforesaid two cases to the evidence of P.W.2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew was fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms. Goswami, learned counsel appearing for the appellant."

51. In the decision reported in Javed Alam v. State of  Crl.A.1804/2005. 57 Chhattisgarh ((2009) 6 SCC 450), it was held as follows:

"Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res gestae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction. In Gentela Vijayavardhan Rao v. State of A.P., it was held in para 15 as follows:

Section 6 of the Evidence Act and some of the succeeding sections embody the rule of admission of evidence relating to what is commonly known as res gestae. They are in the nature of exception to "hearsay" rule. Section 6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the  Crl.A.1804/2005. 58 excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a party of res gestae does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it."

52. A scrutiny of the evidence of P.Ws.3, 5 and 6 show that they have given a consistent and uniform version about what had been seen and heard by them. It is significant to note that no reasons are suggested to them as to why they should speak falsehood. It has to be noticed that the statements made by P.W.1 to them are immediately after the incident. The statements made by P.W.1 are contemporaneous to the acts, which constituted the offence, or immediately thereafter. There is nothing to show that there was any opportunity to fabricate statements or concoct a story. True, strictly speaking such evidence is hearsay evidence.  Crl.A.1804/2005. 59 However, Section 6 carves out an exception and res gestae evidence becomes admissible. There is no reason why these witnesses should not be believed.

53. It is well settled that the evidence of witnesses should be read as a whole. Of course there may be embellishments and development. After all they are also human beings. The evidence of witnesses cannot be rejected on flimsy grounds. In the case of interested witnesses, law is to the effect that such evidence should be scrutinised very carefully. But there is no rule that it should be rejected. If the evidence of the witnesses appear to be creditworthy and it stands scrutiny, it will be highly unjust and in fact illegal to reject the evidence labelling them as interested witnesses.

54. Coming to the entries in Exts.P15 and P16, as rightly pointed out by the learned Public Prosecutor, the entries  Crl.A.1804/2005. 60 relied on by the defence are not of much consequence. It has been held in several decisions that the Doctor is not bound to ascertain the details regarding the incident. In fact the decision goes to the extent that even if there are errors in such entries made by the doctors, they are of no consequence. (See the decision reported in State of Kerala v. Kilakkatha Parambath Sasi (2004(2) K.L.J.

606).

55. The argument is that since P.W.1 did not disclose to P.Ws.5 and 6 about the theft and loss of gold ornaments, P.Ws. 5 and 6 would not have known about the theft. The further contention is that the entries in Exts. P15 and P16 regarding the assault by a thief gives considerable doubt about the prosecution theory.

56. If one recollects the incident and the evidence of P.W.1, hearing the wails of the deceased, she ran to her aid and  Crl.A.1804/2005. 61 tried to save her. In the process she got herself injured by the ferocious attack by the accused. She suffered very serious bleeding injuries. She cried for help, which brought P.Ws. 5 and 6 to the spot. It would be highly imprudent to believe that the people, who had gathered at the place would not have asked as to what had actually occurred in the place. One must remember that P.W.1 was capable of talking at the relevant time. She would have obviously told them about the acts of the accused in depriving her mother in law and her of the ornaments and in fact she did so also. It is true that the identity of the assailant was available at the time of making the entries in Exts. P.15 and P16. But the mere fact that the Doctor has not chosen to mention the name of the accused from the persons who gave information is not a ground to disbelieve the prosecution case. The court cannot shut its eyes to realities and base its finding on fanciful and whimsical notions.  Crl.A.1804/2005. 62 Therefore the socalled entries in Exts.P15 and P16 are of no help to the defence.

57. Now comes the evidence regarding recovery of gold ornaments. It is to be pointed out that there is no substance in the contentions raised by the defence against the recoveries in respect of M.Os. 1, 4, 5 and 6. The first criticism levelled against the recovery is that the officer who effected the recovery is not the one to whom confession statement has been given and that is illegal. That contention is totally unacceptable. The issue has been considered in the decision reported in Sekharan v. State of Kerala (1979 K.L.T. 337) , wherein the court held as follows:

"There is absolutely nothing in S.27 to indicate that the person who discovers the incriminating facts should be the identical person who received the information. To come under the section it is sufficient if discovery, by whomsoever it may be, is  Crl.A.1804/2005. 63 made consequent on information given by the accused to a police officer. In short for that section to apply the person who received the information and the person who made the discovery need not be the same."

The principle behind Section 27 is based on consideration of subsequent facts and events. The law in this regard can be ascertained from the following decisions:

(a). In the decision reported in Sankarana Narayanan v. State of Kerala (2006(3) K.L.T. 429), it was held as follows:

"Unless the authorship of concealment is established, the recovery in pursuance of information stated to have been furnished by the accused will not fall under "discovery" as envisaged under S.27 of the Indian Evidence Act. The admissible part of the statement made by A1 pursuant to which the alleged crime gun was recovered only proves that he knew that the gun was concealed from where it was taken at his instance, but on such knowledge no inference of  Crl.A.1804/2005. 64 committing the murder can be drawn. One of the primary requisites to make a recovery under S.27 of the Evidence Act is that the authorship of concealment of articles must be proved."

(b) In the decision reported in Geejaganda Somaiah v. State of Karnataka (AIR 2007 SC 1355) it was held as follows:

"Section 25 of Evidence ct mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 of Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to  Crl.A.1804/2005. 65 the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.

As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to  Crl.A.1804/2005. 66 make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act."

(c) In the decision reported in Murugan v. State of Tamil Nadu (AIR 2008 SC 2876) it was held as follows:

"The accused had been arrested on 6.9.2000 and only on the basis of his confessional statement his apparels had been recovered. It is contended by the learned counsel for the accused that the accused, who was spotted committing the crime, would not have taken some time to hide his apparels at a safe place. It is the case of the prosecution that PW1 having witnessed the occurrence by peeping through the window came down to the doorway with a view to open the door. The door was opened from inside by the accused. It is not as if the door was opened by PW1 immediately after witnessing the occurrence through the window. The accused, who was inside the house, would have had time to remove his apparels, which  Crl.A.1804/2005. 67 were found blood stained, to put it in a safe place in the house. Further it will not take much of a time to remove the cloths by a person who was in a hurry to escape from the scene of crime. In view of the above, there is nothing to doubt the recovery of the apparels of the accused made by the investigating officer. The recovery at the instance of the accused raises presumptions of guilt as against him."

(d) In the decision reported in Swami Shraddananda v. State of Karnataka (AIR 2007 SC 2531), it was held as follows:

"Discovery of the last remains of the deceased was a relevant fact, which was, thus, admissible in evidence. Appellant had pinpointed the exact place which was to be dug up. He marked the exact area. He also made an oral statement that the box was buried beneath the area so marked, location  Crl.A.1804/2005. 68 whereof showed that it was a big area, flooring of which had been well plastered with cement having Cuddapah stone slabs. The video showed that the slabs had been laid there much earlier and were not of recent origin.

............ ...............

The learned counsel appearing on behalf of the appellant, in our opinion, was not correct to contend that only because the investigating team having regard to the purported confession made by the appellant had already known that a dead body had been buried in the house. Section 27 of the Evidence Act would not be attracted. In his statements before the investigating officer, he made a confession; but what was admissible in evidence is only that part which would come within the purview of Section 27 of the Evidence ct and not the rest. The court while analyzing the evidence and appreciating the same cannot take note of confession made before the police.

................. .....................  Crl.A.1804/2005. 69 What was, therefore, relevant for the purpose of Section 27 of the Evidence Act was that at the instance of the appellant himself a particular place which had been pin pointed by him had been dug and remains of a body and other articles were recovered."

(e) In the decision reported in State of Kerala v. Kilakkatha Parambath Sasi (2004(2) K.L.J. 606), it was held as follows:

"At the instance of A1 on the basis of his confession chopper was recovered. The learned Session's Judge did not believe the recovery on three grounds: The first ground is that it was recovered from a public place and the second ground is that the mahazar witness is a Marxist party worker and accused in some criminal cases. Thirdly, there was delay in recovery. Ext.P11 is the mahazar. It was stated that chopper was recovered from the compound near the river which is situated behind the shop of Babu and in that compound there are teak and other trees and that  Crl.A.1804/2005. 70 the chopper was seen hidden under the fallen leaves. It is not recovered from a public road or from a place where it can easily be seen. There is no case for the defence that it was found out from a place where they were visible for all. In State of Himachal Pradesh v. Jeet Singh (1999 SCC (Crl) 539), the Supreme Court held that concealment is not necessary. What is necessary for admissibility of evidence under Section 27 of the Evidence Act is the fact discovered which embraces the place of recovery and knowledge of the accused as to it and not the object recovered. In paragraph 26, the Supreme Court observed as follows:

"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is  Crl.A.1804/2005. 71 buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."

The fact that the mahazar witness examined is a Marxist party worker (here the dispute was between Congress and BJP workers) or he was accused in some criminal cases is not a ground to disbelieve him. Even otherwise, the police officers' evidence in this case is very clear regarding recovery. The third ground stated is tht there was delay in recovery. It is true that eventhough A1 to A4's names were mentioned in the FIR which was registered and reached in Court on the date of incident itself, that is on 24.3.1994, accused 1, 2 and 7 were apprehended only on 15.4.1994. For about  Crl.A.1804/2005. 72 a month they were absconding . It may be an additional circumstance to connect them with the incident. The date of apprehension of A1, A2 as well as A7 is 15.4.1994. On that day itself, on the basis of the confession statement of A1 the chopper was recovered. Similar is the case with the recovery of another chopper at the instance of A7. Discovery of fact, on the basis of recovery of weapons connected A1 and A7 with the incident is admissible under Section 27 of the Evidence Act."

58. It could thus be seen that the two necessary ingredients to constitute a statement to be admissible under Section 27 of the Indian Evidence Act are i) the statement should disclose the authorship of concealment and ii) it should disclose the factum of concealment. As noticed, Section 27 is an exception to Sections 25 and 26. It can also be seen that even assuming that the statement relied on by the prosecution do contain inculpatory  Crl.A.1804/2005. 73 portion, it is not the law that the statement should be rejected in its entirety. The law as laid down in Swamy Shraddananda's Case clearly indicates that in such cases the court has to exclude the inculpatory portion and take note of the rest of the statement.

59. Again even assuming that the statement suffers from any legal infirmities and cannot be made admissible under Section 27 of the Indian Evidence Act, the fact that the gold ornaments were recovered at the instance of the accused is a fact relevant under Section 8 of the Indian Evidence Act.

60. Coming to the evidence on record, the statement relied on by the prosecution are Exts.P1(a), P6(a), P18(a) and P10

(a) relating to the recovery of bangles, chains etc. The relevant mahazars are marked as Exts.P1, P6, P8 and P10. A reading of those statements would clearly show that they satisfy the requirement under Section 27 of the Indian Evidence Act. The  Crl.A.1804/2005. 74 statements suffer from no such infirmities as pointed out by the defence. The non-examination of Jobi, who had pledged some of the ornaments on behalf of the accused has no significance. The pledge and the recovery have been clearly established. The items of evidence in this connection have already been referred to.

61. Recovery of several articles have been effected in furtherance of the statements. The evidence of P.Ws. 10 to 15, which had already been referred to and the evidence of P.Ws.23 and 24 would clearly reveal that the accused was present when all the recoveries were effected. Their evidences have been referred to in detail and it is unnecessary to repeat the same.

62. Another contention taken by the learned counsel for he appellant is that the recoveries were stage managed. The argument that if as a matter of fact the accused wanted to pledge the gold ornaments, he need not have gone to Bangalore, need not  Crl.A.1804/2005. 75 receive any consideration at all. The evidence of P.W.13, Reji, who says that the accused was a spent thrift and was very lavish shows that he needed money. He speaks in detail about the pledging of gold bangles at the instance of the accused. The evidence of P.Ws. 10, 11, 13 etc. taken along with the evidence to the recovery will clearly indicate that the prosecution claims are true. One cannot omit to note that the accused was studying at a place near Bangalore and there is nothing unusual in him having gone to Bangalore to have the ornaments pledged. P.Ws.10, 11, 13 etc. had nothing against the accused. May be there are slight infirmities in their evidence. But that by themselves are insufficient to label them as unreliable. Then there is the evidence of investigating officer regarding the recovery made by them. There is no law that the evidence of investigating officer should be disbelieved in this respect. In fact the law is specific that unless it  Crl.A.1804/2005. 76 is shown that there are cogent and convincing reasons, it may not be proper to suspect the evidence given by the investigating officer regarding the recoveries made by him. Therefore the arguments based on Section 27 of the Indian Evidence Act and the alleged recoveries made on the basis of the statements by the accused are without merits.

63. At the risk of repetition, one may observe that no reasons whatsoever are given as to why P.Ws.1, 4, 5 and 6 should falsely implicate the accused. They had nothing against him. There is no suggestion to them in that regard. In fact, they were helping the family of the accused. Under such circumstances, it could not be said that the prosecution has not established the case beyond reasonable doubt.

64. It will not be inappropriate to refer to the defence set up in this case. When the accused was questioned under  Crl.A.1804/2005. 77 Section 313 Cr.P.C., his plea was one of alibi. The stand taken by him is that he was not at the place of the incident and he was attending classes in his college at Bangalore. It is trite that when a plea of alibi is taken, the burden of proof is on the accused to establish the said fact. While the prosecution has to establish the case beyond reasonable doubt, the degree of proof as far as accused is concerned is only preponderance of probabilities.

65. In the decision reported in Brijlala Pd. Sinha v. State of Bihar (AIR 1998 SC 2443) it was held as follows:

"When a plea of alibi is raised by an accused, it is for the accused to establish the said plea by positive evidence.. Under Section 11 of the Evidence Act collateral facts having no connection with the main fact except by way of disproving any material fact, proved or asserted can be admitted in evidence. In other words, the fact proved as such which make the existence of the fact so highly improbable as to justify  Crl.A.1804/2005. 78 the inference that it never existed, but such fact has to be established by the person who takes the plea."

The same principle has been followed in the decision reported in Akbar Sheikh v. State of W.B. ((2009) 7 SCC 415).

66. Even though the plea of alibi was taken while questioned under Section 313 Cr.P.C., there was no attempt from the side of the defence to establish the said fact. If as a matter of fact he was attending classes on the relevant date, he could have easily established the said fact. Apart from the statement under Section 313 Cr.P.C., there is no evidence in this regard, there is not even an attempt to establish his case.

67. It could thus be seen that there is no merit in any of the contentions taken by the appellant and the court below was justified in coming to the conclusion that the prosecution has  Crl.A.1804/2005. 79 established the essential facts beyond reasonable doubt.

68. Faced with the above situation, learned counsel appearing for the appellant then pointed out that the prosecution case is that the motive was robbery and not murder and if that is so, the accused cannot be found guilty of the offence of murder. Elaborating on this aspect, learned counsel pointed out that there is no evidence to show that the accused had intention to cause the death of Mariyamkutty and it could only be that while the robbery was being committed, Mariyamkutty would have resisted and fearing identification he might have inflicted injuries. Attention was also drawn to the fact that there is no case for the prosecution that the accused had gone to the house of P.W.1 armed with a weapon. In fact M.O.1 chopper, which is said to have been used is the one which was in the house of P.W.1. When P.W.1 came to the rescue of Mariyamkutty the accused might have entertained the  Crl.A.1804/2005. 80 apprehension that he will be identified and in such a situation, he might have inflicted injuries with the intention of escaping from the scene also.

69. Though the argument may look attractive, it has no substance. The wound certificate relating to Mariyamkutty and the postmortem certificate show that several incised wounds were inflicted on her. The case of P.W.1 is also in no way different. Merely because the accused had gone to the place unarmed does not absolve him from the offence of murder. May be that, he had made use of a weapon found at the place. May be that he acted when there was resistance from the side of the deceased. May be also that he feared identification and in a bid to escape, he might have inflicted injuries on P.W.1. But these facts by themselves are not sufficient to take him out of the offence under Section 302 of Indian Penal Code. One would recollect that in the wound  Crl.A.1804/2005. 81 certificate relating to P.W.1 the doctor was of the opinion that dying declaration has to be taken. That shows the gravity of the injury suffered by her. She is tremendously lucky to have survived.

70. The ferocious attacks on the victims, namely, the deceased Mariyamkutty and P.W.1, the number of injuries inflicted and the manner in which it was inflicted and the gravity of those injuries would clearly reveal the intention or motive of the accused. At any rate his acts cannot escape falling either under Clause 3 or Clause 4 of Section 300 IPC. The court below is therefore perfectly justified in holding him guilty of offence punishable under Section 302 IPC.

71. Learned counsel for the appellant then pointed out that subsequently the accused has acquired post graduate degree and he repents for his acts. He needs to be given a chance to  Crl.A.1804/2005. 82 reform himself and be of help to his family and society. This aspect may be taken into consideration by this court while disposing of the case.

72. The law has to protect persons and property of the people. It is to a certain extent achieved by the proper implementation of criminal law. Courts may have to face new challenges and conflicting interests. It is often said that while sentencing, law should adopt a corrective and therapeutic approach. Usually, the consideration of the the court while awarding sentence are :

i) If the offence was premeditated or planned.

ii) Motive for the act.

iii) Conduct of the accused.

iv) Manner of infliction of injuries.

v) Nature of weapon used.



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vi) Such other relevant circumstances depending on the facts of each case.

73. The court cannot ignore the social impact of crimes. Usually three approaches are made while awarding sentence:

i) Punitive

ii) Therapeutic

iii) Preventive.

Among the above, therapeutic approach seems to have been found more effective and acceptable. That satisfies the requirement of law and protects the society, but at the same time reforms the accused to a great extent. Therapeutic approach aims at treating the convict as a human being.

74. Of course, criminals should be punished. Therefore complete therapeutic approach may not be possible. Moreover, there is no sufficient facilities available to adopt that type of approach in full measure.



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75. As far as the law is concerned, court is left with a very limited choice when an offence punishable under Section 302 IPC is established. Court below has opted for the lesser punishment. Having found that the accused is guilty of the offence of murder, the question of interference with conviction and sentence does not arise. The role of the court in this regard is rather limited. The court's arms are tied by the constraints of law. But it cannot be said "once a criminal always a criminal". If the feeling of remorse has dawned on the convict, it is a factor which cannot be ignored. His desire to reform and to be useful to the family and society needs to be taken note of. The appropriate Government seems to be more equipped in this regard to take such steps as far as possible to meet the situation.

76. The appropriate Government may consider all the aspects and reach a just conclusion. The interest of the society and  Crl.A.1804/2005. 85 concern for the convict, who wishes to transform sincerely, will have to be considered.

The result is that, the appeal is without merits and it is liable to be dismissed. We do so by confirming the conviction and sentence awarded by the court below subject to the above observation. In case the appropriate Government choose to exercise power under Section 432 or Section 433 of Criminal Procedure Code subject to Section 433A of Code, set off as per law will be allowed.

K. Balakrishnan Nair, Judge P. Bhavadasan, Judge sb.