Kerala High Court
Azeez @ Abdulazeez vs State Of Kerala
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRAMENON
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939
CRL.A.No. 866 of 2009 ( )
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AGAINST THE JUDGMENT DATED 30-04-2009 IN SC NO.256/1998 of ADDITIONAL
SESSIONS COURT-I, PALAKKAD
APPELLANT/12TH ACCUSED:
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AZEEZ @ ABDULAZEEZ, SON OF MOHAMMED KUNHU,
ANGETH VEEDU, KOTTAMAM, NELESWARAM, KALADI,
ERNAKULAM DISTRICT.
BYADV. SRI.K.A.SALIL NARAYANAN
RESPONDENT-STATE:
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STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR,HIGH COURT OF KERALA, KOCHI-31.
BY SPECIAL PUBLIC PROSECUTOR SMT.S.AMBIKA DEVI
THIS CRIMINAL APPEAL HAVING BEEN FINALLYHEARD ON 06-02-2017, ALONG
WITH CRA. 867/2009, CRA. 880/2009, CRA. 888/2009, CRA. 1240/2009 AND CRA. 91/2011,
THE COURT ON 05.04.2017 DELIVERED THE FOLLOWING:
"C.R."
P.R.RAMACHANDRA MENON & A.HARIPRASAD, JJ.
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Crl.Appeal Nos.866 of 2009, 867 of 2009,
880 of 2009, 888 of 2009, 1240 of 2009
and 91 of 2011
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Dated this the 5th day of April, 2017
COMMON JUDGMENT
Hariprasad, J.
Nelliyampathy hillocks and hamlets in Palakkad District are famous for scenic beauty and fertile farm lands. Tapioca is a prominent cultivation, besides vast plantations and other cash crops.
2. In November, 1992, towards end of the month, the inhabitants of Mandhamchola in Nelliyampathy Village woke up on hearing the news that Chandran, a native and one Thankamani, a lady who lived with him, had gone missing mysteriously. They were residing in a shed erected in the farm land where Chandran had been cultivating tapioca. It may be relevant in this context to note that there is a serious dispute regarding the date of their disappearance. After a couple of months, mortal remains of Chandran, in the form of a skeleton, shirt, etc. were found out from a place Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 2 in Mandhamchola. Shortly thereafter, charred bones of a human being were also found out from a nearby place. Even before that, a case had been registered in Padigiri Police Station as Crime No.2 of 1993 under the caption "man missing". Later the crime was altered to one for murder and other offences. Dissatisfied with the manner in which the local police conducted the investigation, there was public outcry and therefore the Government entrusted investigation to the Crime Branch. After investigation, they filed a final report implicating altogether 12 accused persons for various offences punishable under the Indian Penal Code, 1860 (in short, "IPC") and the Arms Act, 1959 (in short, "Arms Act").
3. At the time of the committal proceedings, the 1st accused Ayyappan died. Therefore, the court below re-arrayed the original accused persons 2 to 13 as accused 1 to 12. After hearing both the sides, the trial court framed charges under Sections 109, 120B, 118, 114, 449. 302. 511 of 201, 201, 403 and 506(II) read with Section 34 IPC and Sections 3, 5, 27 (1) and 25(1B)(a) of Arms Act and Rule 37 of the Arms Rules against the accused Nos.1, 2 and 5 to 8; under Sections 118, 511 of 201 and 201 read with Section 34 IPC against the accused Nos.2 to 4 and under Sections 201, 204, 218, 120B and 193 read with Section 34 IPC against the accused persons 2, 6, 7 and 9 to 12. From the judgment under challenge, it can be seen that after closing evidence, the 6th accused Cicily died on 26.07.2007. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 3 Therefore charge against her was abated. It is submitted that 10th accused died after conviction.
4. After an elaborate trial, all the accused, except 5th accused Preman and 11th accused Narayanan, were convicted for various offences, which we shall deal with at appropriate parts of this judgment.
5. Aggrieved by the convictions and sentences, the accused have preferred these appeals. We may refer to the appellants in the order of their rank in the Sessions Case for convenience and clarity.
6. We heard Sri. P.Vijaya Bhanu, learned Senior Counsel appearing for the accused 2, 7 and 9; Sri. Dinesh M., learned counsel (State Brief) appearing for the 1st accused; Sri.Nireesh Mathew, learned counsel appearing for the accused 3, 4 and 8 and Sri.K.A.Salil Narayanan, learned counsel appearing for the 12th accused. We also heard Smt.S.Ambika Devi, learned Special Public Prosecutor for the State.
7. In order to prove the prosecution case, 64 witnesses were examined. 29 exhibits were marked on the side of prosecution. Material objects are MOs 1 to 18. Defence marked three documents, viz., Exts.D1 to D3.
8. Prosecution case, unfolded from the final report, is as follows:
Deceased Chandran was engaged in tapioca cultivation at Mandhamchola. Deceased 6th accused Cicily and 7th accused Jose were cultivating tapioca Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 4 adjacent to the farm land of deceased Chandran. 2nd accused Paulose is the husband of deceased 6th accused Cicily. One Karunakaran was owner of the lands, where deceased Chandran, deceased 6th accused Cicily and 7th accused Jose had cultivated tapioca. On account of some monetary disputes, deceased Chandran had caused obstructions in the cultivation and harvest by deceased 6th accused Cicily and 7th accused Jose. 8th accused Kochappi @ Paulose, who was the headman or caretaker in the plantation of the accused persons, sent a letter to 2nd accused Paulose intimating the issues in the plantation through deceased Kuttappan (original 1st accused). Deceased Kuttappan was also a worker in the accused's plantation. Kuttappan handed over the letter to 2nd accused from his house at Kormala in Thrissur district. On receiving the letter, 2nd accused Paulose, his wife (6th accused Cicily), their driver (5th accused Preman), 7th accused Jose (who is brother of the 2nd accused) and deceased Kuttappan had conspired together to murder Chandran. The conspiracy was hatched on 10.11.1992 from house of the 2nd accused.
Deceased Kuttappan returned to Mandhamchola with a letter written by 2nd accused, instructing other accused persons to execute their plan to eliminate Chandran. Deceased Kuttappan had also carried a licensed gun belonging to deceased 6th accused and an unlicensed gun handed over by 2nd accused. On reaching Mandhamchola, deceased Kuttappan handed Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 5 over the letter to 8th accused Kochappi @ Paulose, who read out the letter aloud in the presence of some of the workers. At that time, deceased Kuttappan, PW3 Thomas and 1st accused Ayyappan were present. On 11.11.1992 during night, deceased Kuttappan, on the instruction of 7th accused Jose, went to the shed, where deceased Chandran and Thankamani resided. He asked Chandran to come out and took him to a slightly distant place. When they reached near a water channel, deceased Kuttappan inflicted a cut injury on Chandran's neck with a chopper. 7th accused Jose commanded PW3 Thomas to fire a shot at Chandran by using a gun brought by him from the shed of 7th accused. Fearing threat to his life, PW3 fired at Chandran and 7th accused hit Chandran with a revolver. 1st accused Ayyappan was present at the time of occurrence and he assisted other accused persons by sharing the common intention. Gunshot and cut injury inflicted on Chandran were the causes of death. Deceased Kuttappan and accused 1 and 7, with an intention to cover up the murder and to eliminate any evidence, returned to Chandran's shed in search of Thankamani because they feared she might divulge the fact that Chandran had gone in the company of Kuttappan. They trespassed into the shed and thereafter 7th accused kicked Thankamani. She fell down. Deceased Kuttappan and 1st accused Ayyappan strangled Thankamani to death with a dhothi. At that time, PW3 was standing guard outside. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 6 Accused 1 and 7 and deceased Kuttappan, with an intention to cause disappearance of the evidence relating to the offences committed by them, put Thankamani's dead body in a sack. They carried the sack and dumped it in a bush in the reserve forest. PW3 accompanied the accused persons at that time flashing a torch light. After dumping the body, they returned to Chandran's shed and 7th accused took away a gold chain, worn by Thankamani, seen on the floor of the shed. 8th accused Kochappi @ Paulose instructed 1st accused and deceased Kuttappan to cause disappearance of the evidence by burying the dead body of Chandran. As instructed by 7th accused, accused 5 and 6 purchased sugar and petrol for burning the dead body. During the last week of November, 1992, 2nd accused along with deceased Kuttappan, 5th accused and PW3 Thomas decided to burn the dead body of deceased Chandran. Although they ventured to do so, they could not. In the 2nd week of January, 1993, 2nd accused instructed 4th accused (younger brother of deceased Chandran), 3rd accused (brother-in-law of 4th accused) and PW15 Parameswaran, who is the younger brother of 3rd accused, to burn the dead body of Thankamani because it was abuzz in the locality that Chandran had left the place after murdering Thankamani. They were made to believe that unless they did so, it might cause trouble to Chandran when he returned to his native place. Prosecution further alleged that while inquests were being Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 7 conducted on the exhumed body of Chandran and the remains of Thankamani, 11th accused Narayanan, who was a worker of the accused 2, 6 and 7, intentionally gave a statement to PW26 Tahsildar (who conducted the inquests) that he saw Chandran and Thankamani on 27.11.1992. He also persuaded other witnesses to state that their disappearance was on 27.11.1992. Thus he aided disappearance of the evidence regarding commission of the offence. Accused 2 and 3, with the assistance of PW10 Moideenkutty, 12th accused Abdul Azeez and one person named Aboobacker, influenced 9th accused Unnikrishnan (then Circle Inspector of Police, Nenmara) and 10th accused Ramankutty (Police Constable) by illegally gratifying them for causing disappearance of the evidence, destroying the records to prevent their production as evidence and also for framing incorrect records with an intention to save the accused from punishment. All these transactions between these accused persons occurred during February, 1993 to April, 1993. 9th accused Unnikrishnan, while working as the Circle Inspector of Police, Nenmara during 1992-93, had conducted early part of the investigation in this case. He, with an intention to cause the disappearance of evidence and to screen 2nd accused Paulose, who had left to Abudhabi on 24.11.1992, from legal punishment, changed the date of occurrence from 11.11.1992 to 27.11.1992. This was intentionally done by receiving illegal gratification Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 8 from the 2nd accused. Further allegation against him is that as investigating officer, he did not produce the letter containing the confessions of deceased Kuttappan, PW3 Thomas and the 1st accused Ayyappan. Those letters were handed over by PW33 Chacku to 9th accused and he suppressed the same. Similarly, he also suppressed the letter containing confession of 2nd accused, sent from Abudabi. Prosecution case is that 9th accused compelled PW3 and another witness by name Krishnan to give evidence by changing the date of occurrence from 11.11.1992 to 27.11.1992. 10th accused Ramankutty, who was working as a Police Constable, also received illegal gratification and he also, with a view to screen the offenders and to cause disappearance of evidence, persuaded 9th accused Unnikrishnan to do the offences. 12th accused Abdul Azeez and PW10 Moideenkutty and one Aboobacker along with 10th accused Ramankutty approached 9th accused and they could win over him in causing the disappearance of evidence. Therefore, all the accused persons are guilty of the offences.
9. Having regard to the voluminous evidence adduced during the trial, we propose to marshal the evidence for brevity and clarity.
10. After the investigation was taken over by CBCID, the investigating officer thought it fit to make three among the original accused persons approvers in the interest of a successful prosecution of the other Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 9 accused, whose conviction was not easy without approvers' testimony. As per the orders passed by the Chief Judicial Magistrate, Palakkad, Thomas, Moideenkutty and Parameswaran, the erstwhile accused persons, were tendered pardon on condition of their making a full and true disclosure of the whole of the circumstances within their knowledge. The approvers were examined as PWs 3, 10 and 15.
11. PW3 is brother of PW1 and he was an employee under accused 2 and 6. According to the prosecution version, he fired at Chandran, apprehending that he would suffer death, if he disobeyed the command of 7th accused. He identified MO1 gun as the weapon used to shoot. Further, he identified accused 1 to 9 and 11.
12. PW10 Moideenkutty developed acquaintance with 2nd accused. It is alleged that he introduced 2nd accused to accused 9 and 10.
13. PW15 Parameswaran is brother of 3rd accused Sukumaran. Deceased Chandran was his brother-in-law. According to his evidence, 2nd accused informed him that deceased Chandran had murdered Thankamani and left the place. He was examined to prove that 2nd accused instigated him to burn the remains of deceased Thankamani in order to shield Chandran from punishment. He did so along with accused 3 and 4 on 12.01.1993.
14. To implicate 7th accused in the crime, besides PW3, the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 10 prosecution examined PW4 Paul to show that 7th accused had sold MO2 gold chain, belonged to deceased Thankamani, at his shop for `6,000/-. Ext.P1 seizure mahazar prepared by PW64, the investigating officer, on 03.05.1996 has been proved through this witness. But he did not identify 7th accused as the seller of the gold chain. Prosecution examined PW7 Sheela, who is the daughter of deceased Thankamani, to state that MO2 gold chain belonged to her mother.
15. In order to inculpate 2nd accused, three witnesses were examined to prove the handwriting on certain documents. PW12 Saju was a computer instructor at ICAE, Chalakudy. He is an attestor to Ext.P4 seizure mahazar. He proved Ext.P5, application form submitted by PW13 Sijin Paul, who is the son of accused 2 and 6, for joining a computer course in ICAE. Ext.P6 is a sheet of paper taken from a note book belonging to PW13 Sijin Paul.
16. PW13 Sijin Paul identified MO3 note book seized from him and he admitted his handwriting thereon.
17. PW27 Sukumaran Chettiar worked as Joint Director, Head of Documents Division, Forensic Science Laboratory (FSL), Thiruvananthapuram. Documents containing handwriting samples were received in FSL for analysis. He prepared Ext.P24 Handwriting Analysis Report for comparing the alleged handwriting of 2nd accused on MO10 Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 11 cassette flap and Ext.P42 letter. He also compared the handwriting in Exts.P5 and P6 and the samples taken from PW13.
18. Prosecution has a further case that certain phone calls between accused 2 and 9 would reveal the complicity of both of them in covering up the offences and shielding the accused persons. In order to prove that aspect 10 witnesses were examined.
19. PW9 Sivan copied a cassette containing phone conversation and played it in the Judicial First Class Magistrate's Court. PW11 Anilkumar recorded voice of two persons when they read out a script. After two months, he recorded voice of another person. PW17 Purushothaman was the Sub Divisional Officer in BSNL. He attested Ext.P9 seizure mahazar for the recovery of MO7 telephone directory. He deposed that telephone connection bearing No.62226 was in the name of 12th accused Abdul Azeez. PW18 Ramachandran was the JTO, Cherpulassery. He deposed that telephone connection bearing No.301 was given to PW10. He is an attestor to Ext.P10 seizure mahazar. PW20 Sreenivasan Kochu was Telephone Inspector in the Telephone Exchange, Nenmara. He is an attestor to Ext.P12 seizure mahazar. He was cited to prove that telephone connection bearing No.423 had been used in room No.8 in Ramu Lodge, Nenmara, where 9th accused stayed at the material time. As per Ext.P12 seizure mahazar, MOs 17 and 18 telephone directories were recovered. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 12 PW21 Vasudevan recorded voice of two persons from the Judicial First Class Magistrate Court, Palakkad. PW56 Krishnamurthy is a Technician at the Central Institute of Indian Languages (CIIL), Mysore. He conducted spectrogram test in respect of accused 2, 9 and 10 and also PW10. He proved Exts.P59, P60 and P62 spectrogram calculations. PW57 Ms.Joy Reddy was a Lecturer/Junior Research Officer at Phonetics Lab, CIIL, Mysore. She conducted spectrogram analysis in respect of 7 cassettes (MO13 series). She prepared Ext.P61 sound spectrogram script and Ext.P59 sound spectrogram book.
20. Prosecution examined scientific and medical witnesses to prove the scientific examinations performed on the body parts of the deceased persons. PW24 Sreekumar was the Scientific Assistant, Biological Department, FSL. He prepared Ext.P15 report. He further proved Exts.P16 to P21. PW42 Subramaniam exhumed the body of Chandran. He identified MO8 sack used to cover the body. A shirt, skull and a few pieces of bones were also found out.
21. PW53 Dr.Ramankutty was the Professor of Forensic Medicine, Medical College, Thrissur. He conducted postmortem on the remains of Chandran and Thankamani. He prepared and proved Exts.P54 to P57. Ext.P54 is the postmortem report relating to Chandran. Ext.P55 is the chemical analysis report in respect of him. Ext.P55(a) is the additional Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 13 report relating to him. Ext.P56 is the postmortem report in respect of Thankamani. Ext.P57 is the chemical analysis report in respect of her. Ext.P57(a) is the additional report relating to her.
22. PW54 James Philipose was the Assistant Director of FSL. He examined MO1 gun and proved Ext.P58 report showing that MO1 was a 12 bore Single Barrel Breach Loading firearm (SBBL firearm) and it was in a working condition at the time of testing. PW58 Vishnu Potty was the Joint Director (General), FSL. He examined the shirt of deceased Chandran along with PW24. He issued Ext.P21, FSL report jointly prepared with PW24.
23. Prosecution examined a number of Judicial Officers to prove the procedure of tendering pardon to some of the accused and other steps taken during the investigation. PW32 Thulasi Bhai was the Chief Judicial Magistrate, Palakkad. Ext.P27 is the proceedings showing that she granted pardon to PW10 and one Aboobacker. Ext.P28 is the proceedings for granting PW15 the status of an approver.
24. PW59 Balachandra Menon was the Chief Judicial Magistrate, Palakkad in 1996. He issued proceedings marked as Exts.P64 to P69. As per Ext.P65, the investigating officer made a request to the Chief Judicial Magistrate to take steps to tender pardon to PW3. PW60 Indira while working as the Judicial First Class Magistrate, Alathur, recorded statement Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 14 of PW3 under Section 164 of the Code of Criminal Procedure, 1973 (in short, "Cr.P.C."). She remanded some of the accused persons. She proved Exts.P72 and P83 as well.
25. PW61 Jose Thomas while working as the Judicial First Class Magistrate, Palakkad recorded statements of various witnesses under Section 164 Cr.P.C. Apart from that, Ext.P80 memorandum of voice identification in audio cassettes was also proved through him. Other reports, relating to the procedure in the investigation, was also proved through this Judicial Officer.
26. Official witnesses have been examined to prove the various steps taken during the investigation. PW22 Venumohan and PW23 Kandamuthan were staff in the Collectorates at Thrissur and Palakkad respectively. They were examined to prove Exts.P13 and P14 sanction orders to prosecute accused 1, 2, 5, 6 and 7 and PW3 under Section 39 of the Arms Act.
27. PW26 Mohanachandran was the Tahsildar, Chittur. He conducted inquests of the exhumed bodies of Chandran and Thankamani. He prepared Exts.P22 and P23 inquest reports. He identified the material objects recovered at the time of inquests. He deposed that he had seen 2nd accused in the office of 9th accused even before recovery of the dead bodies.
Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 15
28. PW35 Ram Mohan was the Additional Secretary to the Government. He proved Ext.P29 sanction issued to prosecute accused 9 and 10. PW36 Chandrasekharan was the Junior Superintendent in the Magistrate's Court. He proved Exts.P30 and P31 forwarding notes, whereby material objects were forwarded to the FSL for analysis.
29. PW37 Mani was the Junior Superintendent in the Judicial First Class Magistrate Court, Alathur. He proved Exts.P32 to P38, various forwarding notes, evidencing sending up of the material objects, including MO1 gun, to the FSL for analysis.
30. PW47 Raman Pillai was the Village Officer, Nelliyampathy. He prepared Exts.P47 to P51 scene plans.
31. Insofar as the investigation is concerned, earlier part of it was done by the 9th accused. On account of serious allegations against him, he was removed and ultimately he became an accused in the case. PW43 Devadas was a Police Constable in the Office of the Circle Inspector, Nenmara. He proved Ext.P43 seizure mahazar, whereby photos of deceased Chandran were recovered for conducting superimposition test. He arrested 9th accused. PW44 Rajagopalan was another Police Constable, who deposed that on 07.05.1993, as per Ext.P45, the photographs of the place of occurrence were seized. PW62 Krishnan was a Head Constable in Padigiri Police Station. He recorded the case diary Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 16 statements of witnesses as directed and dictated by the 9th accused during his tenure as investigating officer. He proved Exts.P87 to P97. Ext.P87 is the FIS given by the 4th accused on 08.01.1993 stating that Chandran and Thankamani were missing. Ext.P88 is the FIR. Ext.P89 is the report submitted by the 9th accused, while he was investigating the crime, before the Magistrate having jurisdiction. It is dated 20.03.1993. By this report, it was requested to add the offences punishable under Sections 302, 109, 201, 120B read with Section 34 IPC to the 'man missing' case as it was revealed that Chandran and Thankamani were killed. Deceased Kuttappan was the 1st accused originally. PW3 Thomas (approver) was 2nd accused. Present 1st accused Ayyappan was 3rd accused. Present 2nd accused Paulose was 4th accused. 3rd accused Sukumaran was 5th accused. 4th accused Kandamuthan was 6th accused and PW15 Parameswaran (approver) was 7th accused. As mentioned above, their ranks were changed later. Ext.P90 is the scene mahazar prepared by the 9th accused. Ext.P91 is the scene mahazar in relation to the shed belonged to the deceased. Ext.P92 is a mahazar evidencing seizure of the gun. Ext.P93 is another scene mahazar. Exts.P94 to P97 are the remand reports relating to the accused persons.
32. PW63 Chandran was the Circle Inspector of Police, Nenmara. He conducted a portion of the investigation when it was dealt with the local Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 17 police. He proved Ext.P44 seizure mahazar, Ext.P98 agreement granting a licence by Karunakaran to 6th accused for tapioca cultivation and Ext.P99 seizure mahazar in relation to Ext.P98.
33. Thereafter, the Crime Branch took over the investigation. PW38 Muralidharan was the Head Constable in Crime Branch. He proved Ext.P3 search list prepared by PW64. He proved Exts.P8 to P11 and P39 to P42(a). PW48 Jayakumar was a Police Constable attached to Crime Branch Office. He was present in the house of 6th accused when PW64 seized MO1 gun, MO11 gun licence and MO12 proceedings of the Additional District Magistrate, Thrissur. PW48 transcripted the conversation of 2nd accused recorded in a cassette as Ext.P52.
34. PW49 Safiyullah Sayed, worked as the Sub Inspector of Police, Vellikulangara Police Station. He proved Ext.P40 search list and Ext.P46 seizure mahazar for MOs 1, 11 and 12. He assisted PW64 in arresting the accused persons. PW52 Vasudevan was another Sub Inspector in the Crime Branch. He was examined to depose that when accused 9 and 10 surrendered in the Office in accordance with the anticipatory bail order passed by this Court, he released them on bail.
35. PW64 Mathew Polycarp was the Deputy Superintendent of Police (Dy.S.P.), CBCID. He conducted the reinvestigation. He took over the investigation from 02.01.1996 onwards. Various documents have been Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 18 marked through this witness.
36. Attestors to various documents have been examined as PWs 5, 6, 8, 14, 39, 40, 41, 45, 46 and 50.
37. Since the accused persons have raised variegated issues challenging the sustainability of conviction and sentence, we shall deal with the issues involved in each appeal separately. Evidence of the material witnesses with reference to their contentions shall also be dealt with appropriately.
Contentions raised by the accused 1, 2 and 7 (Crl.Appeal Nos.91 of 2011, 880 of 2009 and 1240 of 2009):
38. It is seen that Crl.Appeal No.1240 of 2009 has been filed by the 7th accused singly and Crl.Appeal No.880 of 2009 has been filed by accused 2 and 7 together. Sri.Dinesh M, learned counsel appearing for the 1st accused and Sri.P.Vijaya Bhanu, learned Senior Counsel appearing for accused 2 and 7 contended that the court below erred in appreciating the evidence available in the case to find the guilt of these accused persons. It is an admitted fact that 2nd accused is the elder brother of 7th accused. Sri.Vijaya Bhanu pointed out that 2nd accused was not present at the place of occurrence and at the time of commission of offence, whether it be on 11.11.1992 or 27.11.1992.
39. Court below convicted 1st accused under Section 302 read with Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 19 Section 34 and Section 449 IPC. He is acquitted for other offences charged on him.
40. Court below convicted 2nd accused under Section 302 read with Section 109 IPC. For other offences charged, he has been acquitted.
41. 7th accused was convicted by the trial court under Section 302 read with Section 34, Sections 449, 403 and 506(II) IPC and Section 25 (1B)(a) and 27(1) of the Arms Act. He has been acquitted for other offences alleged against him.
42. Sri.Dinesh and Sri.Vijaya Bhanu contended that the court below unduly relied on the uncorroborated testimony of PW3, the approver, to find that these accused persons are guilty in the crime. Insofar as the overt acts of murdering Chandran and Thankamani are concerned, PW3 is the only eye witness. PW3 is admittedly a person having a direct involvement in the offences. It is his definite testimony that he fired the gun at Chandran under duress and threat exerted by 7th accused. Before appreciating the oral evidence, we shall consider the legal principles regarding the appreciation of evidence of an approver.
43. Section 306 Cr.P.C. deals with tender of pardon to an accomplice. On a reading of Section 306(1) Cr.P.C., it will be clear that tender of pardon to an accomplice is made with a view to obtain the evidence of any person supposed to have been directly or indirectly Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 20 concerned in or privy to an offence to which the Section applies. The Section applies only when the offence is one which is (a) triable exclusively by a Court of Session, or (b) punishable with imprisonment of seven years or upwards or triable by a Special Judge under Criminal Law Amendment Act, 1952. Pardon may be granted by Chief Judicial Magistrate or Metropolitan Magistrate, at any stage of the investigation or enquiry into or trial of the offence. It can also be granted by any Magistrate of First Class enquiring into or trying the offence. A Magistrate can do so at any time during enquiry or trial only, ie., not at the time of investigation.
44. Sub-section (2) of Section 306 Cr.P.C. deals with the power of granting pardon by a Court of Sessions or by a Court of Special Judge. That portion of the Section is not relevant for our purpose. Sub-section (3) of Section 306 Cr.P.C. insists that every Magistrate, who tenders pardon under Sub-section (1) shall record his reasons for so doing and also whether the tender was or was not accepted by the person to whom it was made. Sub-section (4) of Section 306 Cr.P.C. says that every person accepting a tender of pardon made under Sub-section (1) shall be examined as a witness in the Court of Magistrate taking cognizance of the offence and in the subsequent trial.
45. Ratanlal and Dhirajlal on the Code of Criminal Procedure (20th Edition) based on judicial pronouncements states that no time limit is Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 21 provided for recording the statement of an approver and as such delay is not a ground to reject the testimony of an accomplice. We are in agreement with that view.
46. In this context, Section 133 of the Evidence Act, 1972 (in short, "Evidence Act") is relevant. It says that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
47. At first blush, it may appear that the statement in Illustration (b) to Section 114 of Evidence Act, that an accomplice is untrustworthy of credit unless he is corroborated in material particulars, is in conflict with Section 133 of Evidence Act. These provisions have been interpreted by the apex Court in many decisions. We may refer to Ram Narain v. State of Rajasthan (AIR 1973 SC 1188), a decision rendered by three learned Judges of the Supreme Court. In paragraph 8, the law declared is as follows:
"Turning to the second point we may first state the legal position relating to the testimony of an approver. Section 133, Indian Evidence Act, which falls in Ch.IX dealing generally with witnesses, expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on uncorroborated testimony of an accomplice. In Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 22 other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with illustration (b) to S.114 which falls in Ch.VII, dealing with burden of proof. Section 114 empowers the Court to presume the existence of certain facts and the illustrations elucidate what the Court may presume and make clear by means of examples as to what facts the Court shall have regard in considering whether or not the maxims illustrated apply to a given case before it. Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars : two examples are also given to further explain this subject. The statute thus permits the conviction of an accused person on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) of S.114 strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. This rule of caution is traceable to the fact that an accomplice witness from the very nature of his position is a subject. This rule is guided by long human experience and has become a rule of prudence of general application. The Courts, therefore, consider it prudent to look for corroboration in material Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 23 particulars for sustaining the conviction of an accused person. An approver who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has apparently sought pardon for saving his own skin. In other words he has purchased complete immunity for his prosecution at the expense of his associates by agreeing to give evidence against them for the prosecution. He is , therefore, presumed not to be a man of high character or a fair witness. His pardon being conditional, to pleas the prosecution he may well weave some false detail into the true details of the prosecution story and may also involve some innocent person. There is thus a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason that the Courts as a matter of prudence and caution anxiously look for some corroboration to satisfy their conscience that the approver's testimony which is clearly admissible is also worthy of belief. One can of course visualise an accomplice who is genuinely repentant for the commission of his crime and truly desires to make a clean breast of the whole affair by way of penitence. But even in such cases the Court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 24 the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decision is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge."
48. The same principle has been reiterated by the Supreme Court in many decisions including K.Hasim v. State of T.N. (AIR 2005 SC 128) and Sitaram Sao @ Mungeri v. State of Jharkhand (AIR 2008 SC 391). It has been clearly held in Sitaram Sao @ Mungeri that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the accomplice, should in itself be sufficient to sustain a conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. The independent evidence must not only make it safe to believe that the crime was committed, but must in some way reasonably connect or tend to connect the accused with it by confirming, in some material particulars, the testimony of the accomplice that the accused committed the crime.
49. It is a well settled principle that the corroboration mentioned Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 25 above must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. It may be half-witted, if not insensible, to insist that the corroboration must be by direct evidence to the effect that the accused had committed the crime. If that be so, there is no need for the testimony of an accomplice. Normally in a case the investigating agency would approach the court seeking tender of pardon to an accomplice only when there is no evidence - either direct or circumstantial - to link the real culprits with the crime. In other words, only when there is dire dearth of evidence, the route provided under Section 306 Cr.P.C. will be resorted to. Therefore, corroboration of an accomplice need not be by direct evidence. It is sufficient even if it is merely circumstantial evidence revealing his connection with the crime.
50. Now we shall turn to the evidence against the above mentioned accused persons.
51. PW1 Jose @ Joseph is brother of PW3 Thomas, the key approver. PW1 was working in the tapioca garden belonged to deceased 6th accused. Unchallengeably, he knew all the accused persons closely. It has come out in evidence that the land where tapioca cultivation was done by deceased Chandran and the accused 6 and 7 belonged to one Karunakaran. All the parties have taken land on lease arrangements. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 26 PW1 worked with 7th accused Jose for about four years. He had worked in the farm land of 6th accused for one year. He knew the deceased persons as well. Although he asserted that Chandran and Thankamani were killed, he plainly stated in the chief examination itself that his information was only hearsay. It is his testimony that three days prior to the incident, he had gone to the farm land along with 2nd accused in his jeep. On that day, there was an altercation between deceased Chandran and 2nd accused on account of some financial dispute. On the next day, he along with accused 2 and 5 returned to their native place. Thereafter he was summoned by 5th accused to the house of 2nd accused. When he reached at the house of 2nd accused, he was informed about reception of a letter written by Kuttappan intimating that deceased Chandran had caused obstructions to the work in the farm land. According to him, 2nd accused read out the letter in his presence. 2nd accused openly declared that unless Chandran was done away with, it would be difficult to cultivate tapioca at Mandhamchola. The said declaration was made by 2nd accused in the presence of accused 5 to
7. PW1 was asked to return to Mandhamchola. In chief examination, PW1 stated that 2nd accused insisted that something should be done to alleviate the problems created by Chandran, for which PW1 was not agreeable. It is his version that when he expressed reluctance, accused 2 and 5 to 7 insisted that he should help. According to him, he was almost sure that Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 27 they were planning to kill Chandran. After two days, deceased 6th accused handed over cash in a packet to PW1 and asked him to give it to 8th accused. In the course of conversation, he asked 8th accused where Chandran and Thankamani had gone. 8th accused informed him that they were murdered. PW1 did not take it seriously. Thereafter, he asked PW3 about the disappearance of Chandran and Thankamani. PW3 informed PW1 that what he heard was true and then narrated the incidents. It is his version that PW3 further informed him that he was threatened and forced to kill Chandran. On that evening 7th accused came to Nelliyampathy and asked PW1 whether he heard any news. At that time he divulged the information gathered from PW3 and 8th accused. Then 7th accused asked PW1 to take out their bodies and burn. PW1 refused to do as directed by 7th accused. PW1 further deposed that 7th accused demanded the packet given to PW1 earlier and 7th accused unwrapped the packet in his presence. It was a gun. He was asked to go to 2nd accused's house on 14.11.1992. When he went there, he understood that PW2 had gone to attend a prayer meeting. PW1 asserted that he remembered this date because he was informed by PW3 and 8th accused that Chandran and Thankamani were killed on 11th November. PW1 deposed that 2nd accused gave him sugar and a can full of petrol to set fire to the dead bodies. The said articles were carried in a jeep. PW1 refused to act according to the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 28 instructions.
52. He was extensively cross examined by the counsel appearing for accused 1, 2 and 7. He admitted that all these facts were informed to PW64 for the first time. It is his assertion that all these facts have been narrated to 9th accused when he investigated the crime. In cross examination, PW1 deposed that through the intervention of deceased Chandran, 2nd accused Paulose took the property on lease and there was some monetary disputes between them on this score. He further deposed in cross examination that deceased Chandran had caused hindrance to the activities in the plantation, demanding money. PW1 was sure that unless Chandran was paid off, doing work in the plantation could be difficult. He clearly deposed that money had been sent by accused 2 and 6 through him to 8th accused. It was natural for PW1 to ask 8th accused about Chandran and Thankamani, because he was aware that Chandran had made problems in the plantation. PW3 informed PW1 that he was cheated and trapped in the incident. Even though it was attempted to be brought out in cross examination that PW1 was involved in criminal cases, he deposed that he was charged for a forest offence. Throughout the cross examination, PW1 stuck to his version that after the incident he went and met the accused persons at Kormala on 14th November and he was aware that Chandran and Thankamani were killed on 11th November. Suggestion Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 29 by the defence counsel that PW1 was a planted witness and he came to fore in 1996 only has been denied by him.
53. It has come out in evidence that he had given a statement under Section 164 Cr.P.C. before the Judicial First Class Magistrate. All the material witnesses deposed that deceased Chandran was having a tapioca farm measuring about 7 acres. Deceased 6th accused was having about 80 acres in the area. 7th accused was also having about 30 acres. Evidence tendered by PW1 is to the effect that 3-3 = months after the incident, the dead bodies were found out. Till then, he was not aware where the bodies were secreted.
54. During cross examination by the counsel for 7th accused, PW1 deposed that he went to the farm land along with 2nd accused three days prior to the killing. Accused 2 and 6 handed over money to PW1 in a packet on the next day of the incident. During cross examination, PW1 clearly deposed about the hostility between deceased Chandran and accused 2, 6 and 7. Suggestion that he did not state these versions to any investigating officer other than PW64 has been strongly denied. According to him, he had informed all the facts to the 9th accused.
55. Counsel for 9th accused also cross examined him. According to him, if none of the facts deposed to before the court was seen in the case diary statements, it was because 9th accused did not properly record Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 30 his versions. Despite very lengthy cross examination on this witness, it is impossible to brand him as an untrustworthy witness. However, his testimony regarding the actual incident needs to be corroborated as he gathered information about the killings only through hearsay.
56. PW3 was made an approver by Ext.P64 proceedings. Ext.P65 is a request made by CBCID to the Chief Judicial Magistrate to take steps to grant pardon to PW3. These proceedings were proved by PW59, then Chief Judicial Magistrate, Palakkad.
57. PW3 Thomas deposed in chief examination that in connection with this incident, he had given statement to the Circle Inspector of Police, Deputy Superintendent of Police and Judicial First Class Magistrates at Palakkad and Alathur. According to his assertions, all those statements were given by him voluntarily. He deposed without any compulsion from anyone. This witness also was a worker in the tapioca cultivation conducted by accused 2 and 6 at Mandhamchola. He was working under 7th accused as well. PW3 knew 2nd accused 25 years before his deposition. In 1991, he started working for the accused persons. While he was working at Mandhamchola, on one day, 6th accused passed through AVT cardamom plantation in a jeep. She plucked cardamom without permission and that was seen by a watchman. He in turn informed deceased Chandran about this happening. Chandran went to the shed in Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 31 6th accused's farm and abused her for plucking cardamom. At that time, 6th accused asked Chandran to go out. This happened in the presence of PW3 and 8th accused. This incident was brought to the notice of 2nd accused. 2nd accused became furious and exhorted that he would finish off the person who abused his wife. He brandished a revolver while challenging Chandran. Admittedly at that time deceased Chandran was not present. Thereafter, on one day, deceased Chandran kicked 7th accused in the course of a quarrel on money. That was seen by PW3 and Devassikutty. That incident was also brought to the notice of 2nd accused. Again he took out a revolver and declared that Chandran should be finished. At that time, 2nd accused was awfully drunk. That was in the month of November. On the next day, 2nd accused returned home. After some time, deceased Chandran came to his shed and obstructed work in the plantation. Deceased Chandran stated that 6th accused had taken the land from Karunakaran and if 2nd accused came to Mandhamchola, he would kill him. Deceased Chandran said so at about 8 o' clock in the morning. On hearing this, 8th accused called deceased Kuttappan and prepared a letter to be given to accused 2 and 6. As per the letter, accused 2 and 6 were asked to come to the estate on an early date. Kuttappan went to 2nd accused's house at Kormala and returned with another letter given by 2nd accused. Through Kuttappan PW3 came to know that when Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 32 he handed over the letter to 2nd accused, accused 6 and 7 were present. At about 7 o' clock, Kuttappan came back and read out the letter given by 2nd accused. At the time of reading out, accused 1, 8 and 11 and PW3 were present. In the letter it was clearly mentioned that during the night, they would come and Chandran could never be allowed to live any more. PW3 had gone for job. At about 10 o' clock in the night, Kuttappan called him. He informed that 7th accused had come to Mandhamchola. As instructed, PW3 went to the side of a water channel inside the plantation. At that time, 7th accused was present. He asked PW3 to bring a gun, kept in the store room. PW3 brought the gun which belonged to 6th accused. Thereafter, 7th accused asked Kuttappan to bring Chandran somehow to that place. After some time, Kuttappan brought Chandran. At that time, PW3 and accused 1 and 7 were present. PW3 was wearing a headlight. 7th accused took it from him and put on his head. PW3 handed over the gun to 7th accused. When Chandran was about 10 ft. away, 7th accused flashed light on his face. Immediately, Kuttappan inflicted a cut injury on Chandran's neck from behind. Chandran fell into the water channel face down. Then 7th accused pulled out a revolver from his groin and passed on the gun to PW3. 7th accused hit forcefully on the back of Chandran with the revolver and he was made to lie supine by pulling legs. Thereafter 7th accused demanded PW3 to shoot Chandran. 7th accused threatened PW3 Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 33 that unless he fired, he too would go with Chandran. PW3 was really petrified. Then he fired the gun at Chandran's body. After firing, he felt giddy and sat down. Then accused 1 and 7 and Kuttappan dragged Chandran down the stream. His body was taken about 150 ft. away to a rocky area. They climbed up and asked why PW3 was sitting in a desperate state. 7th accused told PW3 that unless he fired, he would have informed others about the murder. Then 7th accused asked Kuttappan as to whether anyone had seen Chandran coming to the place of occurrence. Kuttappan informed that Chandran was called out in the presence of Thankamani. Immediately 7th accused told everyone that she might enquire about Chandran in the next morning and therefore, she also should be finished. PW3 refused to go along with them. 7th accused assured that PW3 need not do anything, but insisted that he should accompany them. They went to Chandran's shed. On reaching the courtyard, Kuttappn called Thankamani out. She opened the door. Immediately Kuttappan put a bath towel around her neck and pulled. She fell down in the shed. At that time accused 1 and 7 entered the shed. 7th accused put a dhothi around her neck. Then deceased Kuttappan and 1st accused firmly held her upper and lower limbs. 7th accused, keeping his foot firmly on the body of Thankamani, asked 1st accused and Kuttappan to tighten the noose around Thankamani's neck. All these happened inside the shed. PW3 deposed Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 34 that an oil lamp was burning inside the shed. In that light he saw the incident from outside. PW3 deposed that he was standing in the courtyard. The entire incident was visible from the place where he stood. After that incident 7th accused called PW3 to come inside. He saw Thankamani lying dead on the floor. 7th accused told everyone that Thankamani's body should be disposed of. PW3 said that he would not lift the body. Rest of the accused put the body inside a sack. PW3 shined torch light for carrying the body to a place about 20 ft. away from the shed. According to PW3, it was put in a reserve forest. All the persons then returned to Chandran's shed. 7th accused opened a box and took out a paper. And it was burned in the oil lamp. When PW3 asked what that paper was, 7th accused said that it was the account showing money owed by him to deceased Chandran. In order to avoid future disputes, 7th accused destroyed the evidence regarding his liability. When they flashed light, they found a gold chain lying on the floor. 7th accused took the gold chain and demanded that he should be taken upto Pulayampara. They accompanied 7th accused Jose to Pulayampara. Thereafter 8th accused asked PW3 as to who came there and he informed him that 7th accused had come. When 8th accused asked whether 2nd accused also had come, PW3 and others informed that 7th accused Jose desisted the 2nd accused from coming. This was a fact told by 7th accused itself to PW3 and others. Entire events were Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 35 narrated to 8th accused. Then 8th accused asked whether the body of Chandran was visible to others. When he was informed that it could be seen on a careful look at the place, 8th accused asked them to bury the body. He handed over a spade and basket. As instructed by him, PW3 along with 1st accused and Kuttappan returned to the place where Chandran's dead body was laid. PW3 sat on a rock. Body was buried by Kuttappan and 1st accused. Thereafter they returned to shed. Then 8th accused asked Kuttappan to write a letter to 2nd accused. As instructed, Kuttappan wrote a letter and it was sent to the 2nd accused through PW34 Reghu. Thereafter, on the next day, by night, accused 2, 6 and 7 came to the plantation. Accused 2 and 6 returned and they took Kuttappan along with them. 7th accused remained in the plantation and asked PW3 to cause disappearance of the evidence by concealing the dead bodies, for which PW3 expressed his unwillingness. Thereafter 7th accused Jose went back strictly instructing PW3 not to divulge the incident to anyone. After a couple of days, 5th accused came in a jeep to collect banana bunches from the estate and PW3 went in the same jeep to 6th accused's house. At that time, accused 7 and 8 were present. It was informed by 6th accused that 7th accused was demanding `50,000/- for greasing the palms of some politicians. Further, 7th accused told that he had to meet lawyers. At that time, 2nd accused had gone to attend a prayer meeting. On taking Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 36 instructions over phone from 2nd accused, 6th accused informed PW3 and others that she was not supposed to give any money to 7th accused. It was also informed that 2nd accused would take care of everyone connected with the incident. Accused 2 and 6 were of the view that 7th accused was trying to capitalise the situation for extracting money. PW3 refused to burn the bodies as insisted by 6th accused. After four days, 5th accused came in a jeep to the plantation and informed PW3 that 2nd accused was waiting to meet him. He packed up his dresses in a suitcase and went to the house of 2nd accused. On seeing PW3, 2nd accused asked why did he pack up his belongings? PW3 informed 2nd accused that he lost interest in returning to Mandhamchola. 2nd accused asked whether PW3 remembered the date of incident. When he informed 2nd accused that the occurrence was on the 11th day of November, 1992 and handed over a sheet of desk calender indicating the date, 2nd accused burned that sheet. He firmly warned that PW3 should never state 11th November as the date of their disappearance, instead he should inform the outside world that they went missing on 27th November. It was also made clear by 2nd accused that if anyone revealed the incident, he would ruin the entire family of that person. He assured that all the persons involved in the incident would be caused to be released, if caught, within 24 hours, unmindful of the expenses incurred. 2nd accused told PW3 that if everyone involved had gone inside, no one could be of any Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 37 help, but if 2nd accused remained out, he could save everyone. PW3 returned to the plantation and on 23rd December, he went home to celebrate Christmas.
58. After Christmas, PW3 went to the house of 2nd accused and met 7th accused there. He informed that PW3, Kuttappan and 1st accused should not go to the plantation because people started enquiring about Chandran and Thankamani. 7th accused apprehended that if someone questioned, their faces might reveal a guilty mind. After a few days, 7th accused had gone to PW3's house and informed that dead body of Thankamani was found out by 4th accused and PW15. The same fact was informed by 2nd accused as well on the next day. 2nd accused told PW3 that he had consulted a lawyer and he too advised to burn Chandran's body. After that PW3 along with accused 2 and 5 and Kuttappan had gone to Mandhamchola. They purchased petrol on the way. They went to the place, where Chandran's body had been buried, with necessary implements. Thereafter 2nd accused told PW3 and Kuttappan that he would return with a gun kept in the shed. PW3 smelt a danger and therefore, they concealed themselves behind rocks. Accused 2 and 5 returned after a short while, but they could not find out PW3 and other person and therefore, they went back. It was about 2 o' clock in the night. Till 10 o' clock in the next morning PW3 was hiding in the rocky area. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 38 When they met 2nd accused in the next morning, he asked PW3 why did he vanish. PW3 replied that he did hide because he heard someone talking from a nearby place. It was his apprehension that 2nd accused might have set a trap to eliminate all the possible evidence leading to the death of Chandran and Thankamani.
59. After a couple of days, 2nd accused called PW3 to Kormala and instructed him to sign an agreement in connection with tapioca cultivation. He was taken in a jeep to a building at Ernakulam. He was made to sign a paper. Later he understood that the signed paper was used for moving anticipatory bail. One day thereafter a policeman met PW3 and asked why did he apply for anticipatory bail. PW3 told that he did not apply for any anticipatory bail. On further questioning, PW3 admitted that he had gone with accused 2 and 6 to Ernakulam. Police Officers took PW3 to 2nd accused's house and after some time, they came out and informed PW3 that there was nothing serious. After a few days, two policemen from Nenmara Police Station met PW3 and directed him to appear before 9th accused. PW3 along with Kuttappan, Mothirakkanni and 1st accused met PW33 Chacku. Kuttappan, in consultation with them, prepared a letter addressed to 9th accused and it was entrusted to Chacku, to be handed over to 9th accused. According to PW3, the entire incidents transpired were narrated in that letter. As 9th accused wanted PW3 and others to meet him, Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 39 instead of going, they forwarded this letter through PW33 Chacku. Chacku in turn gave the letter to 9th accused. He took Chacku to the house of 6th accused. PW3 and others did not go with them. After a few days, PW3 met 9th accused along with Kaitharam Joy, a Panchayat member, in Ramu Lodge, Nenmara, where 9th accused was then residing. 9th accused took PW3 in his official jeep to the police station. He questioned why PW3 and others had sent a letter narrating the incidents. He told PW3 that he should not implicate accused 2, 6 and 7 in the crime. When PW3 unflinchingly said that the occurrence was on 11.11.1992, 9th accused told him that he would decide the date on which the incident had happened. To cow down PW3, 9th accused bet him from the lock up. According to PW3, he was illegally detained in the lock up for ten days. Five times he was thrashed by 9th accused. His persistent demand was that PW3 should never divulge the names of accused 2, 6 and 7. PW3 deposed that he lost one tooth in the assault. After ten days, he had been taken to the court. When PW3 was taken to court, 9th accused told him that he had asked accused 2, 6 and 7 to see that he was taken on bail. He was produced before the Judicial First Class Magistrate Court, Alathur and he was in remand for about six months. When he was released on bail, he filed complaints to the Chief Minister, Home Minister and higher officers in the Police Department. But no action was taken on his complaints. When Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 40 Deputy Superintendent of Police, Palakkad questioned PW3, he expressed his desire to reveal all the truth. PW3 received a summons from the Judicial First Class Magistrate Court, Palakkad and after two months another summons from the Judicial First Class Magistrate Court, Alathur. PW3 deposed that in both the courts he had stated all the facts known to him. He appeared before the Court of the Chief Judicial Magistrate, Palakkad in the proceedings for making him an approver. Fully understanding the implications, he accepted pardon. He identified all the accused persons from the dock. It is relevant to note that the defence has no case that PW3 had no acquaintance with any of the accused persons. So much so, there is no scope for any identity dispute. He identified MO1 gun which he used to fire at Chandran.
60. All these aspects in his chief examination have been extensively touched upon in the cross examination. PW3 was incisively cross examined by all the defence counsel. In the cross examination by the counsel for accused 3 and 4, PW3 deposed that harvest in the plantation was two months after the incident. Even though PW3 knew that Thankamani's body was burned, he did not know what had happened to Chandran's body. From the trend of cross examination by accused 3 and 4, it can be seen that narration of the actual incident by PW3 could not be seriously challenged. Regarding the prosecution case that deceased Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 41 Chandran had rebuked 6th accused for plucking cardamom in the presence of PW3, he deposed that he did not interfere. About the allegation that Chandran had stamped 7th accused, PW3 deposed in cross examination that he along with Devassikutty and another lady had seen the incident. His deposition that 2nd accused on two occasions brandished a revolver is affirmed in cross examination. During cross examination, PW3 stuck to his version that Kuttappan read out the letter addressed to 2nd accused, in the presence of him and others, that Chandran was making problems in the plantation. PW3 affirmatively stated that the incident happened inside the tapioca plantation and about 150 ft. away from a rocky area. The land at that place was lying in a slope. Definite answer given by PW3 during cross examination is that 7th accused left the place after committing two murders. The letter written to the 2nd accused, subsequent to the incident, was sent through PW34 Reghu. His testimony that at the time when the letter was prepared, he along with Kuttappan and accused 1 and 8 were present remains unshaken in cross examination.
61. It is pertinent to note that at the time of cross examination though some questions were asked to the prosecution witnesses with reference to their previous statements recorded at the instance of 9th accused and they were attempted to be contradicted, no contradiction was marked during the cross examination. In other words, it is not clear as to Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 42 which are the portions of the statements brought to the notice of the witnesses at the time of cross examination for impeaching their credibility. Let us consider the legal position in this respect.
62. Section 145 of the Evidence Act reads as follows:
"Cross examination as to previous statements in writing.- A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
The Section consists of two parts, viz., (1) a witness (whether a party or not) may be asked in cross examination whether he made any previous statement in writing or reduced into writing, relevant to the matters in question, different from his present statement, without such writing being shown to him or being proved in the first instance and (2) if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him. This is an essential condition. The object is to give him a chance of explaining the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 43 discrepancy or inconsistency and to clear up the particular point in dispute. The credit of a witness may be impeached by proof of former statements inconsistent with any part of his evidence, which is liable to be contradicted.
63. In this context, Section 155(3) of Evidence Act is also relevant, which says that the credit of a witness may be impeached by the adverse party by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
64. In this trial, though contradictions of various witnesses, including PW3, were attempted to be made out, cross examiners did not specifically prove the former statements of those witnesses which are said to be inconsistent with any part of their evidence sought to be contradicted.
65. Let us clearly state the law regarding proof of contradictions. In the case of a previous statement of a witness in the form of writing, ie., one falling under second part of Section 145 of Evidence Act, what is required is the substantial compliance of that provision. When, at the time of examination, a witness gives evidence contrary to his previous statement, then his attention must be drawn to the specific part of his previous statement which goes against his evidence and he should be given a reasonable and fair opportunity to explain the contradictions. In order to prove it through the person who recorded the previous statement, it is Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 44 essential that the witness must have denied any specific statement which is sought to be proved. Thereafter, that portion of the previous statement of the witness, which he denied at the time of examination, should be put to the person who recorded the statement. If he asserts that the witness had stated so at the time of recording his statement, then the contradiction is properly proved.
66. We shall refer to the decisions relevant on this point. In George v. State (1988 (1) KLT 256), a learned Single Judge enunciated the principles regarding use of previous statements for contradiction in the following words:
"..........The exact portions sought to be contradicted must be put to the witness and recorded in the deposition and it will have to be marked subject to proof by the investigating officer. Then it must be put to the investigating officer and proved. .........."
A Division Bench of this Court in Thankappan Mohanan v. State of Kerala (1990 (1) KLT 21) considered this point extensively and held thus:
"What is really necessary is substantial compliance of the requirements of S.145 of the Indian Evidence Act and the purpose of the second part of S.145 is to treat the witness fairly by giving him a reasonable opportunity to explain the contradictions after his attention has been drawn to them in a fair and Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 45 reasonable manner. The matter is one of substance and not of mere form. Previous statement if denied must be properly proved through the person who recorded the statement. The court must be satisfied that there is a contradiction between the previous statement in writing and the statement made in court. When that portion has been brought to the attention of the witness he is given a reasonable opportunity to explain the contradiction and the previous statement is duly proved. The question is how and in what manner the deposition should reflect these factors. The ideal procedure would be to record and extract in the deposition relevant previous statement, whether it be a long or a short passage. But it is really unnecessary to subject the overworked Sessions Judges with the task of recording the entire portions. There is nothing wrong in principle if instead of writing the relevant portions of the statement, only the commencing words and the ending words are recorded within inverted commas to indicate the particular passage in the written case diary statement and that portion is marked subject to proof and the deposition indicates that the relevant portion has been read out to the witness. There is no reason why the same procedure should not be adopted when the previous statement is attempted to be proved through the Investigating Officer; there is nothing wrong in the officer deposing that the witness had stated to him as seen stated in such and such exhibit (already Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 46 marked). What is necessary is that the deposition shows that the making of the previous statement is proved by him and that statement is seen in the recorded statement in the case diary. When the relevant portion is marked and the Investigating Officer refers to that portion or exhibit, ordinarily that is sufficient to show that he has proved the previous statement which is part of the statement in writing." We are in complete agreement with the view expressed in the above decisions.
67. We notice a decision by a learned Single Judge in Mohanan v. State of Kerala (1998(1) KLT 805) in the context of a case under Narcotic Drugs and Psychotropic Substances Act, 1985. With reference to a contradiction that can be elicited through a witness, who does not support the case of prosecution revealed through his statement under Section 161 Cr.P.C., the learned Single Judge made the following observations:
"............ The Sessions Judge is wrong in marking the portion of that statement of the witness examined under S.161 Crl.P.C. The statement recorded under S.161 Crl.PC is an unsigned one. When the witness who has given such statement during the investigation is not supporting the same while he is in the witness box, the contradiction can be elicited through him, as provided under S.145 of the Indian Evidence Act and the same can be Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 47 recorded in his deposition sheet. Such contradiction cannot be marked as an exhibit as per the principle laid down by the Madras High Court in an earlier case as well as by me as Judge of this Court in a recent judgment. The statement recorded under S.161 Cr.P.C. of a witness can be used by the accused for the purpose of contradiction, as I have stated above, under S.145 and taken by the prosecution for corroboration provided under S.157 of the Indian Evidence Act. The contradiction can also be elicited as per the proviso to S.162 Crl.P.C. .........."
We are of the considered opinion that the aforementioned statement of law is per incuriam as it violates the Proviso to Section 162 Cr.P.C. as well as the binding precedents on the point. Above observation that a statement under Section 161 Cr.P.C. can be used for corroboration under Section 157 of Evidence Act is an incorrect proposition. Therefore we hold that the said decision did not lay down the correct principles of law.
68. Here, in this case, 9th accused conducted the original investigation, which was later entrusted to the Crime Branch. Thereafter PW64 took up the investigation. PW3 and other loyal witnesses categorically deposed that all the vital informations furnished by them, during the investigation by the 9th accused, were intentionally distorted, suppressed and omitted to be recorded in order to save the accused 2, 6 Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 48 and 7. A strange situation arisen in this case is that the investigating officer himself is made an accused at a later point of time. So, such previous statements recorded by 9th accused cannot be proved through PW64 in the manner stated above. Insofar as the statements of the witnesses recorded by PW64 are concerned, portions of the previous statements given by them, including PW3, were not specifically brought to their attention and after eliciting answers from them they were not put to PW64 in the exact terms.
69. We have noticed an irregularity in the manner in which the witnesses are sought to be discredited in the cross examination. We do not intend to lay down a proposition that a contradiction should be given a specific marking at the time of examination of a witness, otherwise it could not be considered at all to assess credibility of that witness. We are aware that marking a previous statement as contradiction is mainly for convenience at the time of appreciating the evidence, as it may bring out clarity. It will be very difficult, if not impossible, to cull out a statement from the voluminous depositions, as in this case, so as to find out whether that particular aspect in the evidence is a contradiction or not, unless a marking is made in that particular portion of the previous statement of the witness. It is therefore clear that marking the relevant portion of the previous statement contradicting the deposition of the witness is essential for a Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 49 proper and effective appreciation of the evidence. In this case, this procedure has not been followed.
70. Catena of decisions have laid down the proposition that mere putting suggestions to a witness and the witness denying the same will not amount to putting contradictions to him. The contradiction has to be put to a witness as contemplated under Section 145 of Evidence Act.
71. Equally settled is the proposition of law that only those passages in the previous statement should be proved, which clearly contradict some portion of the testimony of witness before the court. Whole of the depositions should not be put in without marking the particular passages upon which reliance is placed for the purpose of contradiction (see Kehar Singh v. State - AIR 1988 SC 1883; Puthenthara Mohanan v. State of Kerala - 1990 Cr.L.J. 1059 and Thankappan Mohanan v. State of Kerala - 1990 Cr.L.J. 1477).
72. On applying the above principles, it can be seen that credibility of PW3 was not challenged properly with reference to his previous statements. To a definite question whether PW3 was aware that Chandran would have died on receiving a gunshot at his hands, he answered that he fired apprehending danger to himself. PW3 definitely stated in cross examination that he had no intention to kill Chandran and he was aware that Chandran could be killed by his action.
Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 50
73. During cross examination by the counsel for accused 2 and 6, a question was asked to PW3 whether he knew Chandran died of a firing? PW3 answered that he was not aware because Chandran had already suffered a deep cut injury on his neck. He denied the suggestion that Chandran died only because of receiving a shot. PW3 asserted in cross examination that before recording his statements in the proceedings under Section 306 Cr.P.C., he was questioned and statements were recorded by 9th accused and PW64. PW3 conceded that he had not seen 6th accused plucking cardamom or Chandran rebuking her. Further, he has admitted that on two occasions when 2nd accused declared by brandishing a gun that he would kill Chandran, the latter was not present. It has come out in the testimony of PW3 that 7th accused had taken 30 acres of land on lease and 6th accused had taken 80 acres. It is seen that PW3's statement was recorded on 12.04.1993 by 9th accused. When PW3's attention was drawn to that statement, he denied the statement that he had picked up a quarrel with Chandran. Further, the said statement cannot be used against PW3 because he was originally made an accused on 20.03.1993 and as on 12.04.1993, his statement could be only that of an accused, proof of which is hit by Section 25 of Evidence Act. It is PW3's consistent case that he never had any enmity to Chandran. Even though very many case diary statements, recorded during the original investigation, were put to PW3, he Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 51 emphatically denied all of them. It is pertinent to note that such inculpatory statements cannot be legally relied on because PW3 was an accused at that time.
74. Contention raised by the accused 2 and 6 that as advised by PW64, PW3 became an approver is also denied by him. According to him, on his own free will he divulged all the facts and obtained a tender of pardon.
75. During cross examination, it has come out that there was monetary disputes between deceased Chandran and 7th accused. It is seen that Chandran asserted that 7th accused owed him `73,000/-. PW3 was not directly involved in the disputes between deceased Chandran on one hand and accused 2 and 7 on the other. Although some parts of PW3's statement, recorded by a Judicial First Class Magistrate under Section 164 Cr.P.C., were put to him during cross examination, no attempt was made to contradict him with reference to that. In cross examination, PW3 specifically answered that he was not aware whether he fired on Chandran's chest. He stated that when 7th accused intimidated, he suddenly pulled the trigger, fearing that 7th accused might kill him. He fired from about 10 ft. away from the place where Chandran was lying down. He held the gun with both hands. He did not aim at Chandran's chest. PW3 stated in cross examination that Kuttappan and 1st accused had Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 52 immobilized Thankamani when Jose strangled her. Even though minor discrepancies could be seen in the deposition of PW3 regarding the incident in which Thankamani lost her life, substratum of the prosecution case regarding the direct involvement of accused 1 and 7 in killing Thankamani has come out through PW3.
76. Although we have gone through the detailed cross examination on PW3 by the defence counsel, we find no reason to hold that he has materially deviated from the definite versions spoken to in the chief examination regarding commission of the murders.
77. We have already dealt with the evidence of PW1. On some material aspects, PW1 has corroborated PW3. Nonetheless, we shall consider other relevant evidence in this context.
78. PW10 Moideenkutty is yet another approver. PW32, the Chief Judicial Magistrate, Palakkad tendered pardon to him as per Ext.P27 proceedings. He has not spoken about the actual incident of killing. But his testimony throws light on the involvement of 2nd accused in the incident. The fact of tendering pardon has been deposed to by PW32.
79. Unchallenged testimony of PW10 is that he had close acquaintance with accused 2, 6, 9 and 10. He identified them correctly from the dock. After 20th February, 1993, 2nd accused met PW10 along with latter's friend Babu. 5th accused was the driver of 2nd accused. 2nd accused Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 53 informed PW10 that there was some labour problems in his tapioca plantation. PW10 deposed that about six years, 2nd accused and himself had worked together in Abudhabi. 12th accused had also worked with PW10 in Abudhabi. 2nd accused requested for help from PW10 to solve the labour problem through the intervention of Police and then PW10 informed 2nd accused that he had no acquaintance with any Police Officer. He called one of his friends Aboobacker over phone, who was also made an approver as per Ext.P27 proceedings by PW32, Chief Judicial Magistrate, Palakkad. However, he was not examined before the trial court.
80. It is the testimony of PW10 that Aboobacker had close connection with 10th accused Ramankutty, who was working in the Dy.S.P. Office, Shornnur. After some time, Aboobacker called PW10 back and instructed them to meet 10th accused. As instructed, PW10 along with accused 2 and 5 went to Ramankutty's house at about 2 o' clock in the noon and informed him about the problems faced by 2nd accused. They were asked to go to KPM Tourist Home, Palakkad by 6 o' clock. After they reached KPM Tourist Home, 10th accused came and they together went to the house of 9th accused. 10th accused took 2nd accused inside the house of 9th accused and PW10 waited outside. After spending about 25 minutes, 2nd accused came out and he was confident that 9th accused had promised to resolve the issues. Thereafter PW10 returned to his native place. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 54 Subsequently, in the first week of April, 6th accused came to PW10's house and complained that 7th accused and policemen were causing trouble to her. It was informed by her that 2nd accused had been implicated in a murder case. She requested PW10 to see that Police did not harass her until 2nd accused returned from Abudhabi. PW10 again called Aboobacker. He in turn advised PW10 to keep away from such issues. On understanding the possible complications, PW10 sent 6th accused away. After four days, accused 5, 6 and 12 again met PW10 and informed about the police harassment. PW10 and Aboobacker discussed ways and means to avert police harassment until 2nd accused Paulose returned from Abudhabi. Again they met 9th accused at his official residence. 12th accused talked to 9th accused for a short while and assured that latter had promised that no problem would be made until 2nd accused returned. In the month of July, 1993, 2nd accused again called PW10 and at that time, PW10 plainly told him that he should not seek help in such matters.
81. PW10 was not cross examined by the counsel for 1st accused. This witness was cross examined by the counsel for 2nd accused. PW10 deposed in cross examination that he did not deal with 9th accused; but according to him, introducing an accused person to a Police Officer for favours itself is an offence. During cross examination by 12th accused, PW10 deposed that he knew 12th accused about six years prior to the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 55 incident. At that time, 2nd accused was also working with them. PW10 affirmed in cross examination that he divulged all the truth known to him before the Chief Judicial Magistrate at the time of tendering pardon. Testimony of PW10 unerringly show the intimacy established between accused 2 and 9 through the intervention of 10th accused. Evidence tendered by PW10 supports the oath on affirmation by PW3 that 9th accused was trying out of the way to extricate 2nd accused and his family from the insinuation that they were instrumental for the double murder.
82. PW15 Parameswaran was also made an approver as per Ext.P28(a) proceedings before PW32, then Chief Judicial Magistrate, Palakkad. He was originally made an accused for causing disappearance of evidence with a view to shield the offenders. After granting pardon, he fully supported the prosecution regarding his involvement. PW15 is the brother of 3rd accused. Deceased Chandran was the brother-in-law of 3rd accused. He knew accused 2, 3, 6, 9 and 11 even prior to the incident. He testified that he had given statements before the Judicial First Class Magistrate Courts at Alathur and Palakkad. He voluntarily gave statements under Section 164 Cr.P.C. On a day in December, 1992, 4th accused met PW15 in his house at Malampuzha. He informed that Chandran and Thankamani had gone missing. Two months before their disappearance, Chandran had visited PW15's house. Deceased Chandran was having a Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 56 defective vision and wanted to go a hospital at Angamaly for undergoing a surgery. Since PW15 thought that Chandran must have gone to Angamaly, he asked 4th accused to make enquiry in the hospital. On 01.01.1993, 4th accused again came to PW15's house and informed that Chandran and Thankamni could not be seen in the hospital. 4th accused insisted that PW15 should go to Mandhamchola as they had to settle accounts relating to cultivation. Deceased Thankamani belonged to Chalakkudy. 4th accused informed PW15 that her relatives had come down to Mandhamchola. Together with 4th accused, PW15 went and met 3rd accused. They along with one Chami went on foot to Mandhamchola. By the side of Thankamani's shed, they found her relatives. PW7 Sheela (daughter of Thankamani) was present. All of them enquired whereabouts of Chandran and Thankamani. They met 2nd accused and asked about the missing persons. At that time, 2nd accused told them that he had come from Abudhabi only two days before and had no information about them. He asked them to go and meet 7th accused, who was present in the plantation. Then they met 7th accused and asked about Chandran and Thankamani. He denied of having any information about them. When PW15 and others asked local people about them, they informed that from 27.11.1992 onwards Chandran and Thankamani were missing. They stayed in the house of 3rd accused on that night. As instructed by one Chathayi and Unni Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 57 Nair, 4th accused filed a complaint in Padagiri Police Station, regarding the missing of Chandran and Thankamani. That was on 08.01.1993. Police recorded the statement of 4th accused. Although Police visited Mandhamchola, they were clueless. On the next day, 4th accused informed PW15 and others that a human skull, bones, hair, blouse, etc. were found in the forest. All of them went to that place. Since it was dusk, they thought it could be informed to the Police on the next day morning. At about 10 o' clock, they were summoned by 2nd accused to his shed. When PW15 and others met 2nd accused, he asked whether they could find out any trail of the missing persons. PW15 informed 2nd accused about finding out a skull, bones, etc. of a human being. Then 2nd accused informed PW15 that Chandran might have killed Thankamani and left the place. He asked about the exact location where the skull, bones, etc. were found. PW15 insisted that the matter should be informed to the Police. 2nd accused cautioned PW15 that if they had shown the place to the Police where skull, bones, etc. were found, then Chandran would be implicated as accused in a murder case. Therefore, 2nd accused pressurised him that the remains should be destroyed without informing the Police. PW15 spent a sleepless night. He contacted 4th accused. He also insisted that they should inform Police about the fact. PW15 and 4th accused pondered over the consequences and ultimately they decided to put the remains in a sack. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 58 They kept the mortal remains underneath a tree. Thereafter PW15 and 4th accused returned to Chandran's shed. On the next day evening by 3 o' clock, they along with 3rd accused decided to set fire to the skeleton in the sack. 3rd accused was reluctant in doing so. Then PW15 informed 3rd accused about the possibilities pointed out by 2nd accused and possible trouble that Chandran might face. Then all the three persons jointly burned the remains of Thankamani. This fact was informed to 2nd accused and thereafter PW15 returned to Malampuzha. During the month of March, 1993, Circle Inspector of Police and two Police Constables arrested him. He was taken to Mandhamchola and at that time deceased Kuttappan was also present. Large number of persons were assembled along with Tahsildar, Doctor and others. PW15 and Kuttappan were taken down hill to find out the body of Chandran. Portion of a decomposed body with a black shirt, cap, a pack of beedi and a match box along with bones were recovered. On seeing the remains, PW15 understood that it was Chandran's body parts. Deceased Chandran had lost a tooth in the upper jaw. He could identify the skull as that of Chandran because it had a missing tooth in the upper jaw. PW15 stated that Chandran was closely known to him. He had fixed an artificial denture in the place of missing tooth. PW15 even named the dental hospital at Palakkad from where deceased Chandran had fixed the artificial denture. After recovering Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 59 Chandran's skeleton and shirt, 9th accused took PW15 to the place where they had set fire to the skeleton of Thankamani. In the presence of Tahsildar and Doctor, reports were prepared and photographs were taken. After bailing out, PW15 filed complaints before the Home Minister and Superintendent of Police and others saying that he along with others were cheated by 2nd accused and falsely implicated in the case. Therefore he divulged all facts to the investigating officer and initiated proceedings for tendering pardon.
83. Counsel for accused 2 and 6 extensively cross examined this witness. It is elicited in cross examination from PW15 that from the date of burning the dead body of Thankamani, he was repentful. For a long time he lived in compunction. PW15 stated that he had filed complaints during the interregnum. PW15 worked as an advocate clerk and actively involved in human right activities. PW15 deposed that deceased Chandran was an accused in a forest offence for dealing with ivory. He had poor vision in one eye. Chandran was a close friend of PW15, that was why 4th accused came to him in search of Chandran. As in the case of previous witnesses, statements in the case diary recorded by 9th accused were put to him in order to contradict, but the corresponding portions were not proved through the investigating officer. This witness deposed that deceased Thankamani was about 10 years older than Chandran and they were living together. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 60 When a question is put to PW15 whether he felt remorse for burning the remains of Thankamani after realising that Chandran was killed, he answered that he was regretful even before knowing about Chandran's death. In cross examination, he adhered to his version that 2nd accused was instrumental for causing the disappearance of evidence relating to the crime in which Thankamani was killed. This version of PW15 remains unshaken despite long cross examination. PW15 clearly answered to a query that 2nd accused informed him about killing of Thankamani by Chandran on account of their familiarity.
84. When he was cross examined by the counsel for accused 3, 4 and 12, he deposed that Thankamani's skull was found in two pieces and the lower jaw was separated from the upper jaw. It has come out in evidence that deceased Chandran was engaged in illicit distillation of liquor. Thankamani's body was found out from a place close to a hearth used for illicit distillation. PW15 knew the place where Chandran had set up the implements for illicit distillation. PW15 plainly stated that both the accused 3 and 4 were of the opinion that they should inform Police about the presence of Thankamani's remains, whereas PW15, on the advise of 2nd accused, told them that it would be better to burn the skeleton in the interest of Chandran. PW15 deposed that he believed in the words of 2nd accused that Chandran had gone to Bombay. PW15 has a version that Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 61 deceased Chandran had promised to pay `25,000/- to him at the time of harvesting tapioca. It is his version that accounts were not settled between Chandran and 2nd accused either before or after the incident.
85. Learned counsel for 7th accused cross examined him. PW15 deposed that at the time when Chandran was killed, the relationship between the latter and 7th accused was not cordial. But statement given by him under Section 164 Cr.P.C.shows that they were in good relationship till Chandran disappeared. But that cannot be taken as a major blemish in his credibility. Despite strict cross examination on PW15, except some minor contradictions, no valid reason to discard his testimony could be brought out.
86. Another testimony relevant in this context is that of PW33 Chacku. He also knew all the accused involved in the case. Besides, he had acquaintance with deceased Chandran and Thankamani. In fact deceased Thankamani was his native and neighbour. PW33 was a worker in the farm land of accused 2 and 6 at Mandhamchola. PW3, Kuttappan and 1st accused had visited his house after the incident. Kuttappan prepared a letter and asked PW33 Chacku to hand it over to 9th accused. He went to Nenmara Police Station and handed over the letter to 9th accused. After reading the letter, 9th accused put it in his pocket. Thereafter he was taken home in a police jeep. He had given a statement Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 62 before the Magistrate under Section 164 Cr.P.C.
87. Counsel for accused 2 and 6 cross examined this witness and at that time, he denied the suggestion that he testified as per the directions of PW64. It is relevant to note that the letter written by Kuttappan and delivered by PW33 Chacku to 9th accused was not produced.
88. Counsel for 7th accused also cross examined this witness. Suggestions at the time of cross examination that Kuttappan, PW3 and 1st accused had not given any letter to PW33 Chacku and he did not entrust it to 9th accused have been strongly denied by this witness.
89. PW34 Reghu also had acquaintance with all the accused persons. This is an undisputed fact. He also worked in the plantation of accused 2 and 6. Three days prior to 1st Vrischikam (a holy month in Malayalam Era) he sought permission from 8th accused (supervisor) to go home. He was planning to attend a festival in his village temple. According to him, as permitted by his supervisor on 12.11.1992 he went home. 8th accused gave him a letter to be given to 6th accused. As directed, he handed over the letter to 6th accused. She gave the letter to her husband, 2nd accused read out the letter in PW34's presence. He could understand on hearing that what was instructed had been done. 2nd accused settled PW34's account. This witness also gave a statement under Section 164 Cr.P.C. before a Magistrate. This witness was also cited to identify the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 63 voice of 2nd accused. About the relevancy of voice identification, we shall discuss at another part of this judgment. This witness knew deceased Chandran and Thankamani. In the chief examination, he deposed that two days prior to 12.11.1992 he had seen Chandran and Thankamani. On 10.11.1992 activities in the tapioca farm had to be stopped because of Chandran's intervention. Then 8th accused caused Kuttappan to write the letter. Thereafter PW34 had not seen Chandran.
90. He was cross examined by the counsel for 1st accused. PW34 unequivocally stated that he left Mandhamchola on 12.11.1992 and that was three days prior to 1st Vrischikam. Case diary statement recorded by 9th accused that PW34 worked till 28.11.1992 at Mandhamchola is stoutly denied by him. As mentioned above, statement of PW34 recorded by 9th accused could not be taken as legally proved. Prosecution has adduced evidence through the witnesses that 9th accused had recorded statements of all the material witnesses in a manner to exculpate accused 2, 6 and 7. That aspect we shall deal with later.
91. PW34 was cross examined by the counsel for accused 2 and
6. He started working at Mandhamchola in the month of January, 1992. 7th accused was supervising the activities in the farm. PW34 emphatically stated that he did not depose to 9th accused that only from 27.11.1992 Chandran and Thankamani disappeared. According to him, that is a false Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 64 statement. In cross examination, PW34 stated that had the letter given to 6th accused been read aloud inside the house, he would not have heard the contents. He stuck to his version that 2nd accused read out the letter from a varandha in his house. He asserted that it was not 6th accused who read the letter aloud, but it was the 2nd accused. PW34 stated that he did not find any special reason why 2nd accused read the letter aloud. According to him, 2nd accused, for reasons best known to him, read out the letter from varandha and he happened to hear one or two sentences regarding the fulfilment of instructions given by 2nd accused.
92. It may be appropriate to note the testimony of PW2 in this context. He was employed by Karunakaran, the land owner, as a care taker. PW2 deposed that Karunakaran owned large extent of property in Mandhamchola. He identified accused 2, 3, 4 and 7 from the dock and asserted that he knew these people before the incident. Likewise, he had acquaintance with deceased Chandran and Thankamani as well. Prosecution examined this witness to prove that leasing out the land by Karunakaran to accused 2, 6 and 7 was through deceased Chandran. This witness deposed that deceased Chandran had informed him that there was a quarrel between the former and 2nd accused on account of some cash dealings. In cross examination also this witness clearly deposed about the financial transactions between 2nd accused and Karunakaran and also Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 65 between 2nd accused and deceased Chandran.
93. PW25 Thankavelu Pillai was the owner of Ramu Lodge, Vallangi. It is a place close to Nenmara. He was running the establishment from 1985 to 1996. He identified accused 2, 6 and 9 from the Court. It is deposed by him that 9th accused had resided in his lodge, in room No.8, during 1992-93. He was aware of the double murder in Nelliampathy. He deposed that accused 2 and 6 had also stayed in his lodge. It is his version that when 9th accused stayed in Ramu Lodge, accused 2 and 6 used to come and stay there and he had seen them talking to each other. When examined, he deposed that before and after flashing the news about murders, he had seen them talking to one another. This version remains unaffected by cross examination.
94. PW64 Mathew Polycarp was the Dy.S.P., CBCID, Palakkad. He took over the investigation on 02.01.1996 as instructed by ADGP (Crimes), Thiruvananthapuram. Ext.P101 is the proceedings authorising him to take over investigation. On 01.04.1996, he arrested accused 5 and
6. 6th accused produced MO1 gun before PW64 along with Ext.P102, the proceedings by ADM under the Arms Act. He submitted a report before the court for remanding the accused persons. He conducted search in the house of 6th accused. He recovered an audio cassette as per Ext.P40. The cassette is marked as MO13(a). Prosecution has a case that the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 66 conversations between accused 2 and 9 were recorded by 2nd accused while he was abroad. But the court below did not accept the voice identification procedure proved through various witnesses. We shall deal with that part of the case separately.
95. In the course of investigation, he took steps to record the statements of various persons under Section 164 Cr.P.C. PW64 asserted that MO2 gold chain, which belonged to deceased Thankamani, was recovered as per the confession of 7th accused while in custody. We shall discuss that fact below.
96. PW64 arrested 2nd accused on 03.05.1997 from Delhi Airport on the basis of a tip off. His travelling documents like passport, passenger ticket, etc. were seized as per Ext.P118 mahazar. He was produced before the Safdarjung Hospital, New Delhi and later he was brought to Kerala. 2nd accused's passport is marked as Ext.P122. Ext.P113 is the copy of it. Emigration seal in Ext.P122 would show that 2nd accused had left India on 24.11.1992 from Bombay Airport. That page is marked as Ext.P122(a). Passenger ticket is marked as Ext.P123. He was produced before the court and remanded. He was taken in police custody and his voice sample was recorded for comparison with the voice recorded in MO13(a). As observed by the court below, MO13(a) contained recorded version of telephonic conversations between accused 2 and 9. PW64 testified Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 67 extensively about the steps taken by him in the investigation.
97. PW64 was cross examined by the counsel appearing for all the accused. During the cross examination of 1st accused, PW64 deposed that PW3 fired MO1 gun as he apprehended danger to his life at the hands of 7th accused. In answer to a question put by the counsel for 1st accused, PW64 deposed that in his investigation, it was not revealed that PW3 was the main culprit. According to him, 2nd accused was the main culprit. PW64 was sure that Chandran died on receiving a shot injury caused by PW3.
98. When he was cross examined by the counsel for 2nd accused, a suggestion was put to him that voice recorded in MO13(a) cassette and subsequently recorded from the court were manipulated to fix 2nd accused in the crime. This suggestion is strongly denied by PW64. Major part of the cross examination by the counsel for 2nd accused was relating to illegality in the collection and analysis of voice samples to connect 2nd accused with the crime. Court below rejected the prosecution case regarding identification and matching of voice in MO13(a) and that of the accused 2 and 9 recorded in the course of investigation. Learned Prosecutor did not make any serious challenge about the finding of the trial court in this respect.
99. Even though some contradictions elicited from the above mentioned witnesses were put to PW64 and tried to be proved through Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 68 him, we do not find any valid reason to discard their testimonies as the contradictions are insignificant and do not affect the substratum or core of the prosecution case.
100. PW64, in the course of cross examination, admitted that as there was no eye witness to the incident, he thought of making someone involved in the crime an approver because he was not confident with the nature, quality and quantum of evidence collected touching on the killings and also regarding the causing disappearance of evidence. In compliance with the provisions in Section 306 Cr.P.C., he made requests to the Chief Judicial Magistrate for making PWs 3, 10 and 15 approvers in this case. It is his definite version that after questioning, he was not sure whether 1st accused and deceased Kuttappan would divulge the truth. He could ascertain that PW3 would tell the truth as approver. Nothing could be brought out while cross examining PW64 to hold that his assessment and steps taken in finding out an approver for establishing the prosecution case was incorrect. With regard to the non-citing of a Circle Inspector by name Cherian, PW64 deposed that as he was aware that Cherian had not recorded the statements of witnesses, so his name was omitted from the memorandum of evidence. Suggestions that Circle Inspector Cherian had recorded the statement of PW3 and at that time he did not depose anything about the involvement of the accused in the crime and that was why Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 69 Cherian was not examined are all denied by PW64.
101. Counsel for 7th accused also cross examined PW64 searchingly and at length. PW64 deposed that when 9th accused investigated the case, he had recorded the statements of witnesses to the effect that PW3 fired at Chandran by a country gun. He also deposed that no valid reason to justify that allegation against PW3 was revealed during his investigation. PW64 further deposed that the role played by 7th accused had been narrated by PW3 when questioned. He gave evidence to the effect that gunshot hit on Chandran's chest and he did not question the Doctor as to which side was the entry wound. Clear suggestions put to PW64 that PW3 committed both the murders and he along with PW1 put the blame on the 7th accused has categorically been denied by this witness. On the whole, his evidence amply supports the testimony of PW3 regarding the facts asserted by the latter. The procedures adopted in the course of investigation were proper and effective.
102. By way of summing up the discussion made so far, it can be stated thus: PW3 is the witness examined to prove the actual incident of killing Chandran and Thankamani. He deposed that 1st accused inflicted a cut injury on the back of Chandran's neck and immediately he fell down. At that time, 7th accused hit him with a revolver. Before doing so, 7th accused had passed on MO1 gun to PW3. Then he terrorized and overawed PW3 Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 70 and commanded to shoot Chandran. PW3 firmly believed that he would be done away with, if he did not shoot Chandran. In self-preservation instinct, PW3 fired on Chandran's body, when he was lying down. He deposed that he did not even aim at Chandran and he was unaware of the part of his body affected by the gunshot. It has come out through PW3 that thereafter they went to Chandran's shed and in order wipe out the traces of evidence regarding Chandran's disappearance, accused 1 and 7 along with Kuttappan strangulated Thankamani to death and her body was disposed in the reserve forest. These facts deposed by him have been corroborated by subsequent events. Things happened subsequent to the serial killings were spoken to by PWs 1, 10, 15, 33 and 34. Evidence tendered by the investigating officer (PW64) also lends good support to the testimony of all these witnesses.
103. Testimony of PWs 32, 59, 60 and 61 show the legality and regularity of the proceedings in tendering pardon and recording the statements of material prosecution witnesses under Section 164 Cr.P.C. The complicity of accused 1, 2 and 7 in the crime has been clearly revealed through the testimony of the aforementioned witnesses.
104. Insofar as 7th accused is concerned, the prosecution wanted to rely on certain additional facts. Apart from the direct evidence adduced by PW3 against 7th accused and also other corroborative evidence discussed Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 71 above, the prosecution wanted to rely on Ext.P1 seizure mahazar, wherein the alleged confession by 7th accused, regarding the sale of MO2 gold chain belonged to Thankamani, was made. In this context, it is relevant to consider the deposition of PW7 Sheela, who is the daughter of deceased Thankamani. She identified MO2 as the gold chain belonged to her mother. She also testified that her mother was residing with deceased Chandran as man and wife, though she was elder to him. Even though PW7 deposed that Chandran had married Thankamani, there is no material available to establish that fact. She too deposed about the dubious missing of Chandran and Thankamani. In cross examination, PW7 deposed that when MO2 gold chain was shown by PW64 to her, 7th accused was present.
105. In order to prove the recovery of MO2, prosecution examined PWs 4 and 5. PW4 Paul owned Akkara Jewellery, Chalakkudy. He produced MO2 to PW64. Along with police party, a person was brought to his shop. That person informed the police that he had sold MO2 in PW4's jewellery. Then PW4 could remember that he had purchased the ornament from the said person. Police recovered MO2 as per Ext.P1 mahazar. The incident was in 1996. He expressed his inability to identify that person from among the accused persons in the dock.
106. PW5 Vincent is another witness to Ext.P1. He also testified Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 72 that Ext.P1 was prepared while recovering MO2 gold chain from the shop of PW4. But he did not support the prosecution case that 7th accused was present at that time.
107. PW4 was cross examined. He did not remember the exact date on which the ornament was sold to him. He was keeping a stock register, but he was not sure whether MO2 had been shown in the register. He deposed that MO2 gold chain was kept in his showcase. In cross examination, PW4 deposed that he used to buy gold ornaments only from persons known to him. Even though PWs 4 and 5 did not specifically implicate 7th accused, testimony of PW64 clearly supported the prosecution case regarding recovery of MO2.
108. Learned Senior Counsel contended that in the absence of any confession of the 7th accused separately produced and marked, mere mentioning about his confession in Ext.P1 cannot be taken into account to prove recovery of MO2. In this case, the recitals in Ext.P1 show the confession of 7th accused with respect to sale of MO2 gold chain in PW4's jewellery. Section 27 of Evidence Act deals with proof of information received from an accused in custody. It reads as follows:
"How much of information received from accused may be proved.-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 73 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 the fact thereby discovered, may be proved."
109. It is clear from the Section that if information is furnished by an accused in custody, even if it is in the form of a confession, it can be proved against him to the extent it relates distinctly to the fact thereby discovered. It is a well settled principle that Section 27 of Evidence Act enshrines a rule of evidence of confirmation by subsequent events. What is relevant is the credible deposition regarding the fact discovered in consequence of the information received from a person accused of any offence in custody of a Police Officer. It is an axiomatic proposition that whether a confession is admissible or inadmissible, any fact, the knowledge of which has been obtained from it, may still be proved by the prosecution. PW64 clearly deposed that 7th accused had confessed in custody, which led to the discovery of MO2 from PW4's shop. It is his clear version that on 03.05.1996 at about 11 o' clock, 7th accused led the investigating officer to PW4's jewellery and on questioning, PW4 produced MO2 which was recovered as per Ext.P1. This part of the evidence tendered by PWs 4 and 64 have not been effectively challenged. Therefore, the recovery of MO2 as per Ext.P1 has been properly proved against 7th accused.
Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 74
110. Learned Senior Counsel contended that the gold chain was sold in 1992 and it was recovered on 03.05.1996. According to him, it may be insensible to think that PW4 would have kept the ornament in the showcase for more than three long years. That is a fact best known to PW4 and nothing worthwhile was elicited from him as to why did he keep MO2 for three years. On a cumulative reading of testimonies of PWs 4, 5 and 64, it can only be seen that PW64 proved recovery of MO2 at the instance of 7th accused while in custody. MO2 belonged to deceased Thankamani has been satisfactorily proved through PW7. Therefore, this aspect also points fingers at 7th accused.
111. In the pursuit for corroboration of PW3's versions regarding the manner in which Chandran and Thankamani had been killed, we came across the scientific evidence adduced by the prosecution. It is also relevant to note the evidence of PW42 Subramanian in this context. He exhumed the body of Chandran from a rocky area at Mandhamchola. He deposed that on removing soil in the process of exhumation, he found a sack, a shirt and beneath, a skeleton of a human being. This has not been controverted at all. He identified the sack as MO8.
112. PW53 Dr.Ramankutty conducted postmortem examination on the mortal remains of Chandran and Thankamani. At the material time, he was working as Professor of Forensic Medicine, Government Medical Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 75 College Hospital, Thrissur. On 21.03.1993 he conducted postmortem examination on the exhumed body of Chandran. He issued Ext.P54 postmortem certificate. He deposed that following tissues/skeletons were recovered from the grave:
"1) A few tufts of scalp hair, black, matted together with greenish yellow fungal smearing (similar to the one seen at the root of the dried tree) hairs measured 6.5 x 7 cm in length, smeared with soil.
2) A piece of dried skin attached to the right calcaneum (9 X 4.5 cm).
3) Soft tissues remnants at the thoracic cage and inside the abdominal regions, and pelvic area.
4) Skeleton almost entire and in situ, articulated except a few metacarpals, phalanges, tarsals and metatarsals and a few fragments of ribs showing fractures of antemortem origin, as described below."
On his preliminary examination, he noted the following features:
"1. Left 1st rib: Showed an irregular fracture (antemortem) involving the whole breadth, 5.4 cm from the vertebral end with loss of bone chips at the undersurface of the even, upper margin at fracture site. The rest of the bone was missing. There was dark semisolid materials stating the area and the soft tissues around. The soft tissues of the front part of Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 76 chest wall showed complete loss at the intercostal region, soft tissues were adherent and still firmly attached at the back and sides, showing dark blood staining.
2. Left 2nd rib: Showed a fracture (antemortem) 4.5 cm long, extending from the upper margin to the lower margin, its front end being 4.7 cm behind its sternal end. Margins infiltrated with blood. Soft tissues almost completely lost at front and sides.
3. Left 3rd rib in two pieces:- (a) showing fracture (antemortem) 1.5 cm from its vertebral end leaving a gap of 1.8 cm from its lateral (outer) part. Two fragments of ribs 0.5 X 0.4 X 0.3 cm and 0.8 X 0.5 X 0.3 cm were found sticking to the soft tissues around. There was deep staining of the entire area around with dark blood. The soft tissue at the site of rib fracture showed a gap of 2.8 X 2.5 cm with infiltration of blood outside and inside the thoracic cage at the back wall. The inner (back) end of the rest of the 3rd rib (left) beyond the bony defect showed shattering. The defect in the back of thoracic cage and the fractures of 1st and 2nd ribs on the left side showed a track direction of forwards, downwards and to the left, having a tract length of 9 cm inside the thoracic cage. The upper thoracic (3 numbers and the lower cervical (3 numbers of vertebrae also showed dark staining on their left side in contrast to the other sites. Similar staining was Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 77 seen on the surface of sternum and costal cartilages. There was no trace of metallic pellet, bullet or their fragments.
4. Skull: entire showed the following during preliminary and later detailed examination after cleaning.
(a) Fissured fracture 7.6 cm long on the back, front and upper (orbital) parts of maxilla (left) extending into the orbital plate with suture separation (partial) between the nasal and zygomatic bones.
(b) A chip fracture with fragmentation 1.5 X
0.6 X 0.5 cm on the outer part of superior orbital
margin on the left side.
(c) Fissured fracture 28.3 cm long, curved
and extending upwards and backwards, from the site of (b) and involving upper orbital plate, left side of frontal bone, left temporal bone and left lower half of coronal suture terminating at the upper part of external auditory meatus.
(d) The temperoparietal suture was
separated (left side)
(e) Crack fracture 1.4 cm long, vertical on
the left side of frontal bone just above the wing of spheroid bone.
(f) Crack fracture 2.2 cm, oblique on the left side of frontal bone with its back and on the coronal suture 4.4 cm from its commencement (left side) All the fractures on the skull showed margins free of Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 78 any evidence of infiltration with blood. No definite opinion could be stated whether the fractures were antemortem or postmortem."
In order to identify, the following features were noted by PW53:
"Glabella - prominent Sygoma - prominent Superior orbital margin - rounded Supra orbital ridge - prominent temporal lines - just detectable mastoic process, right styloid process -
prominent (left stylod process broken) Nuchal lines - prominent Occipital protuberance - prominent Chondyloid process - long.
Maxillary palatine arch - "U' shaped."
Regarding examination of teeth, following statements are made:
"Teeth: 1st and 2nd molars (4 numbers fond in situ) sockets for all other teeth except 11 intact. 1 to 12, ..............21 to 27 showing moderate attrition. No evidence of antemortem loss. The socket for 11 (central upper right incisor tooth) showed alvicolar resorption (old extraction) No space for 3rd molars." It can be seen from his testimony that the discovered skull showed an old extraction of central upper right incisor tooth. This assumes importance if we consider the evidence of PW15 Parameswaran, who deposed that Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 79 Chandran had extracted upper incisor from Pullorickal Dental Hospital, Palakkad. This evidence too was not challenged.
113. PW53 in his deposition clearly mentioned the details sufficient to identify the gender of the deceased. After a thorough examination, PW3 opined as follows:
"1) All the bones were of human origin
2) The bones belonged to a male person
of age above 25 years and below 35 years.
3) Stature of the person was 165.7 + or-
3.8 cm
4) The deceased had loss of right upper
central incisor tooth of more than 3 months of
duration.
5) Time since death was more than 2
months.
6. Cause of death is consistent with the
history of gun shot injury through the left side of chest.
7. No definite opinion can be stated, at present as to whether the fractures of skull were antemortem or postmortem the gross appearances were suggestive of postmortem origin.
8. Additional report will follow on receiving certificate of chemical laboratory examinations." PW53 has received Ext.P55 chemical examination certificate dated 03.06.1993.
Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 80
114. On the same day, after completing the postmortem on the exhumed body parts of Chandran, PW53 conducted postmortem on the bony remains of Thankamani. The postmortem certificate is marked as Ext.P56. On a meticulous examination of the remains, revealed in the presence of ash and soil, the following things could be identified:
"1) Left Calcaneum (bone of heel) - almost
intact, dried brittle.
2) Right calcaneum (the posterior part,
tuberosity only)
3) Left patella (knee cap) - dried, intact a
little smaller than the right patella (No.4)
4) Right patella -dried, intact, slightly
discoloured dark and was a little larger than the
left patella (No.3)
5) Right fibula (lower end) comprising of
lateral malleolus, broken just above its level, otherwise intact (small leg bone)
6) Right navicular (tarsal bone - mid - foot bone), intact, a little longer than the left bone (no.7)
7) Left navicular, intact, a little smaller than the right bone (No.6)
8) Left coboid, intact, dry (mid - foot bone)
9) Right cuniform bones - 3 numbers medial, intermediate and lateral - intact, dry and could be articulated.
Crl.Appeal Nos.866 of 2009, 867 of 2009,
880 of 2009, 888 of 2009, 1240 of 2009
and 91 of 2011 81
10) Left cuniform bones (2 numbers) -
almost intact, dry.
11) Metatarsal bone, broken at the distal
end - 1 no. dry
12) Body of thoracic vertebrae - 3 numbers,
the processes partially burnt and lost.
13) First thoracic vertebrae, intact with all
the process, dry.
14) Right humerus (arm bone) - upper end
with its head greater tubercle lesser tubercle
bicipital groove etc in situ, intact; the epiphyses fused with shaft. The shaft of hemerus was partly burnt, dried and broken obliquely below the level of head, marrow lost. The head portion of the bone showed less prominent tubercles and articular facet (joint part of head) as compared with those of male bones and were smooth. (these changes are highly suggestive of female sex and age about 18 years) the head of humerus measured 3.4 cm in diameter.
15. Intermediate phalanx (finger bone) - 1 no. intact, dry.
16. Petrous part of right temporal bone -
skull (broken), dry.
17. Part of right frontal bone (skull) with p;art of orbital surface and superior orbital margin, sharp, having intact supra orbital notch. (The sharp appearance of the margin is highly suggestive of female sex). The supra orbital ridge is not readable Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 82 since that portion of the bone is missing.
18. Part of lesser wing of sphenoid bone (skull) with intact optic canal (right side) dry.
19. The condylar portion of left occipital bone (skull) with intact hypoglossal canal, dry.
20. Piece of left maxilla (cheek bone) with zygomatic facet, dry.
21. 8 pieces of straightened, flattened, brittle, ribs.
22. Second rib (left side) almost complete
23. Acromion -process of spine of right scapular(shoulder blade) with intact articular facet; fused with spine
24. Premolar tooth - one, having two roots, (intact) whose crown portion was partly burnt.
25. Molar tooth with 3 roots (intact) whose crown portion showed little damage due to burns.
26. Small, thin, brittle, partly burnt unidentifiable fragments of skeleton (27 numbers) which could not be morphologically distinguished as to species of origin, sex, age, etc."
This witness deposed that there was no trace of soft tissues or cartilages as body was completely charred. None of the identified human bones revealed any sort of evidence of antemortem violence. PW53 ruled out any possibility of duplication of bones. There was no discrepancy with regard to the age, sex, articulation, etc. to indicate that bones belonging to more Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 83 individuals than one could have been mixed up. After a thorough examination PW53 was of the opinion as follows:
"OPINION 1. The pile of ash and remains at the scene of cremation contained human skeletons.
2. The bone pieces could belong to one and the same individual
3. The sex of the individual appeared to be female
4. The age of the person is estimated to be more than 18 years.
5. There was no evidence of mechanical injury of antemortem origin, to be available skeleton remains.
6. No definite opinion can be furnished as to
(a) stature of the individual
(b) Time since death.
(c) Cause of death and
(d) Whether the burns were
antemortem or postmortem."
115. Subsequently, chemical analysis report regarding the remains of Thankamani was received by PW53, which is marked as Ext.P57.
116. PW53 was cross examined by the defence counsel. During the cross examination by 7th accused, PW53 deposed that presence of blood could not be effectively detected in Chandran's body parts because Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 84 of the time lag in examining the body and also due to decomposition changes. For these reasons, no confirmation could be obtained regarding the presence of blood from the remains. PW53 deposed that pellets might have entered Chandran's body from back and therefore, the entry wound was on the back of chest. PW53 further deposed that the whole remains were smeared with suspected materials of blood, stalagmite, soil, dust and other substances. He deposed in cross examination that on the front side of shirt seen on the exhumed body, there were tears. They were not similar, but were of different types and shapes. On the back side of the shirt, there was only one hole, indicating the entry of the shot. It is also deposed by PW53 that hole on the back side was slightly on a higher level than the hole on the front side. He deposed that there was a big hole on the front side of chest wall. According to him, it could be either due to exit of the pellet or super added to that the effect of decomposition changes. PW53 stated that fracture of 1st and 2nd ribes on the left front side of chest could have been caused by the gunshot.
117. When cross examined by the counsel for accused 3 and 5, PW53 deposed that the difference in size of bones mentioned in Ext.P56 by itself is no indication that it belonged to two different persons. There is no rule that every pair of bones in a human body must be of the same size. Despite cross examination on PW53, we find no reason to hold that there Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 85 was any mistake committed by him in arriving at the conclusion about the approximate age and sex of the victims and also regarding the manner of killing in the case of exhumed body.
118. Another relevant witness is PW24 Dr.Sreekumar. On 29.07.1994 he was working as Scientific Assistant (Biology) in FSL, Thiruvananthapuram. He issued Ext.P15 FSL report. He was present at the time of postmortem examination. As per Ext.P15, four sealed packings with specific seal impression were forwarded for analysis. The packets inter alia contained Chandran's photograph and a shirt, worn by him at the time of death. Item No.1 was that shirt (full sleeve) black in colour. It was found tore on the left front flap, on upper side of pocket, and on the black flap. Certain black hairs and soil were also found on the shirt. Item No.2 contained four items, viz., a human skull with mandible, 14 numbers of human teeth, certain long bones in a bottle, 4 human vertebraes with attached dried tissue kept in a bottle. Item No.3 was a black and white passport size photograph of a male with a black sunglass. Item No.4 contained two copies of another black and white photograph of a male.
119. PW24 examined the items and certified that blood was present on item No.1 full sleeve shirt. But the quantity of blood was found to be unsuitable for grouping test. On examination of hairs, it was found that they were of human origin.
Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 86
120. PW24 conducted superimposition test on the exhumed skull by using scientific aids in the FSL. Modi on Medical Jurisprudence and Toxicology (25th Edition), in Chapter 11, deals with "Personal Identification from Skull" in a great detail. Learned author says that the use of skull- antemortem superimposition is one of the oldest and best known methods of facial identification since ages. According to the learned author, the stepwise examination and procedure to be followed are as below:
(i) Cleaning and fixing of the jaw.
(ii) Estimation of approximate age and sex.
(iii) Photography of the skull.
(iv) Enlargement of the skull and antemortem
photograph to a life size.
Thereafter, craniometric measurements are used for cross verification of the skull and skull photograph. Then facial features of the antemortem and skull photographs should be related to identify the dead person.
121. From the photographs in item Nos.3 and 4, PW24 made life size enlargements of face. After cleaning the skull and mandible, teeth were fixed in their positions on the skull and mandible. After fixing the mandible with the skull in its position, photographs of the skull were taken. Life size prints were made from the photographs. Thereafter, the test was conducted and following facts were noticed:
Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 87 "1. The eyes were within the orbital cavities.
2. The eye brows corresponded to the upper orbital margin.
3. The root of the nasal bone corresponded to nasion.
4. The nasal spine was just above the tip of the nose.
5. The upper alveolar margin was just below the tip of the nose.
6. The gonion corresponded to the angle of mandible.
7. Gnathion corresponded to the symphysis menti.
8. The outlines of jaws and jaw-bones were congruous granting due allowance to soft tissue thickness.
9. The anthropometric landmarks on the face and skull were marked, measured and ratios were calculated. The ratios were found to be identical."
The final result of examination as per Ext.P15, proved by PW24, is thus:
"1. The shirt in item no.1 contain human blood and human hair.
2. The skull and mandible in item no.2(a) could have belonged to the person whose photographs are given in items 3 and 4.
Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 88
3. Gunshot residues could not be detected on the shirt in item no.1.
4. Evidence of gun-shot could not be detected on the broken bones in item 2. (Result Nos.3 and 4 vide report of even no. dated 2.12.93 from Shri.P.Vishnu Potty, Joint Director (General) Forensic Science Laboratory)."
Exts.P16 to P18 are the photographs of the skull with negative, proved through PW24.
122. From the testimony and report of PW24, it can be seen that he had adhered to the established procedure for identification of the person by superimposition. Despite searching cross examination, no reason could be brought out to find any fault with the procedure adopted by him. His testimony regarding identity of the dead person is completely trustworthy.
123. Another important scientific expert is PW54 James Philipose. On 11.06.1996 this witness was working as the Assistant Director, FSL, Thiruvananthapuram. He received a parcel involved in this crime for examination. A 12 bore SBBL firearm of 121.5 cm. long with 80.3 cm. long barrel was sent for analysis. It is commonly called a pellet gun or shotgun. There were inscriptions on the weapon showing the details about the maker and proof marks. As part of the examination, the barrel wash was collected and found containing compounds of nitrite. It was then test fired in the laboratory by using a 12 bore cartridge. As a result of examination, it Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 89 was noticed that the weapon (12 bore SBBL firearm) was in a working condition. Signs of previous firing were detected inside the barrel. It was impossible to state the time elapsed since it was fired last.
124. These aspects in Ext.P58 were proved by PW54 at the time of examination. There was no cross examination on this witness by any of the accused and therefore, his testimony remains uncontroverted.
125. Another important witness is PW58 Vishnu Potty. At the material time he was working as Joint Director, FSL,Thiruvananthapuram. He also was present at the time of exhumation of Chandran's body. On 24.03.1993, he examined the shirt recovered in connection with this crime. He found on examination that the front left flap was having five irregularly tore holes of varying dimensions. The dimensions varied between 1 to 6 cms. approximately and they were distributed over an area of 9 x 6 cms. involving the pocket. PW58 deposed that trace lead was detected on the edges of the above mentioned holes. PW58 further deposed that shirt was bearing another irregularly tore hole having 4 cm., oriented slightly to the left from the mid point and above that of the holes on the front flap. This hole is apparently on the back side of the shirt. The result of examination showed that gunshot residues could not be detected on the shirt and evidence of gunshot could not be detected on the broken bones sent for analysis. PW58's report is marked as Ext.P21. It can be seen from the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 90 joint report signed by PWs 24 and 58 that they were present at the crime scene when the bodies were exhumed. At that time, they noticed the presence of trace lead on the edges of tore holes on the shirt. But in the lab examination, PW58 deposed, evidence of gunshot could not be detected on the shirt.
126. PW58 in cross examination deposed that if a muzzle loaded gun is used, identical holes could be caused. In the case of muzzle loading shotgun, the discharge pattern of projectiles could be similar to that of a standard shotgun, provided the charging of the weapon was done in the standard manner. It is his opinion that if a muzzle loading gun is discharged from a close range (less than one metre), sometimes projectiles could be dispersed and if that be so, there could be more than one entry points.
127. PW58 further deposed that as no individual satellite holes were made in the shirt at the entry point and an irregular hole of 4 cm. alone was made, he was of the opinion that the range of firing could be around 5 to 6 ft. Further, the pellets could be dispersed in different directions within the body with different residual velocities. In cross examination, PW58 clearly deposed that front side of body of the individual could not have been the entry point of the shot.
128. The above scientific evidence too probabilise the versions Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 91 spoken to by PW3 that from about 10 ft. distance he blindly fired at Chandran by using MO1 gun. Testimony of PW54 coupled with his report Ext.P58 shows that MO1 had been used for firing, although the exact date of firing could not be ascertained. These scientific aspects proved through the above mentioned witnesses fortified the version of PW3 regarding the firing at Chandran. Even though it may be difficult to state precisely as to whether Chandran died on account of the gunshot or cut injury, the facts that PW3 fired MO1 shotgun at Chandran and pellets entered through his back and shattered the ribs on the front left side are probabilised by the scientific evidence adduced.
129. Learned Senior Counsel appearing for 7th accused contended that PW3 definitely stated that 7th accused pulled Chandran's legs when he fell down on receiving a cut injury and made him lie supine and thereafter PW3 fired at him. According to the learned Senior Counsel, necessarily therefore the entry wound must have been on the front of Chandran's chest and the scientific evidence probabilising the entry wound on back of his body disproves the version of PW3. It is true, PW3 deposed that when Chandran fell down procumbent, he was made to lie supine and fired at him. Going by the evidence of PW3, there was some time gap between putting Chandran upright on the ground and actual gun fire, because in the meantime he was threatened by 7th accused and commanded to fire at Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 92 Chandran or to face the consequences. During this interval, a person who received a cut injury and hit with a revolver normally would not lie motionless. Possibility of him writhing in pain and rolling over in an attempt to save life cannot be ruled out. Therefore, we do not find any cogent reason to disbelieve the narration of facts by PW3 simply because the gunshot entered Chandran's body from backside.
130. Summing up the above discussion, it can only be held that PW3's testimony regarding the actual act of killing Chandran and Thankamani muster corroboration from other witnesses, which we have discussed in detail above. That apart, scientific evidence also probabilises the case that Chandran had received a gunshot, which shattered his rib cage. Besides, identification of the individuals involved in the murderous death by superimposition and other tests scientifically done in FSL by the expert witnesses, mentioned above, amply proved the prosecution case that the body exhumed belonged to Chandran and Thankamani. Overtacts played by the accused 1 and 7 in killing Chandran and Thankamani have been clearly established by the sufficiently corroborated testimony of PW3. Assertion by PWs 3 and 34 that the crime was committed on 11.11.1992 remains credible and acceptable, despite tough cross examination on them. That apart, testimony of material witnesses clearly point out that the killings were done while the 2nd accused was in his house at Kormala. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 93 Another piece of evidence probabilising this case is Ext.P122, the passport of 2nd accused. Ext.P122(a) is the relevant page of the passport showing that the 2nd accused had gone to Abudhabi from Sahar Airport, Bombay on 24.11.1992. It is the definite prosecution case that in order to save the 2nd accused from criminality, the accused themselves spread a false news that Chandran and Thankamani disappeared on 27.11.1992. PW15 Parameswaran has mentioned in his evidence that after 01.01.1993 he along with the accused 3 and 4 went to Mandhamchola. Within a couple of days he met 2nd accused and latter informed PW15 that Chandran had killed Thankamani and absconded to Bombay. As per the endorsement in Ext.P122, it can be seen that on 21st December, 1992, 2nd accused had stamped exit visa from Abudhabi International Airport and reached India. Thereafter, on 8th March, 1993, he had returned from Sahar Airport, Bombay and reached on the same day in Abudhabi International Airport. These facts probabilise the version of PW15 that he had occasion to meet 2nd accused at Mandhamchola and during that meeting he instructed PW15 and others to destroy the evidence regarding the killing of Thankamani. For the above reasons, involvement of 2nd accused in the crime is also established by reliable evidence.
131. In order to bring home the complicity of 2nd accused in the crime, the prosecution raised another contention before the trial court. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 94 PW9 Sivan, PW11 Anil Kumar, PW16 Govindankutty, PW17 Purushothaman, PW18 Ramanchandran, PW19 Sasidharan, PW20 Sreenivasan Kochu, PW21 Vasudevan, PW56 Krishnamurthy and PW57 Ms.Joy Reddy were examined to establish an unholy link between accused 2 and 9 to cover up the heinous crime. These witnesses were examined to prove the voice recorded on MO13 audio cassette, said to have been recovered from the house of 2nd accused. MO13(a) is the sample voice of 2nd accused recorded on an audio cassette.
132. Learned trial Judge has elaborately examined the sustainability of this contention. Learned trial Judge in paragraphs 67 to 72 of the judgment has discussed about the quality and acceptability of evidence adduced by the above mentioned witnesses regarding identification of the recorded voice. PW57 Ms.Joy Reddy worked as Junior Research Officer at Phonetics Lab, CIIL, Mysore. She prepared sound spectrogram script on the basis of recordings in the audio cassettes to match with the voice samples. Trial court relying on the dictum in Pootholi Damodaran Nair v. Babu (2005 (2) KLT 707) and also on Mahabir Prasad Verma v. Dr.Surinder Kaur (AIR 1982 SC 1043) held that tape recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 95 conversation is indeed no proper evidence and cannot be relied on. It was also found by the trial court that there was no evidence to show that who recorded the telephonic conversation on MO13(a), when it was recorded and from where it was recorded. It was also noticed that even according to PW57, the fundamental frequency, amplitude and time will have to be established for identifying the speaker. In the absence of any reliable evidence, the court below rightly repelled the evidence regarding telephonic conversation between accused 2 and 9. Learned Prosecutor has not seriously challenged the view taken by the trial court in this regard. However, she contended that the enormous quantity of evidence otherwise adduced by the prosecution witnesses would nail down the accused 1, 2 and 7 in the crime and even if the contention regarding correctness of the voice test is rejected, the prosecution should succeed on the quality and credibility of other evidence adduced.
133. Learned Senior Counsel contended that recovery of MO2 gold chain sought to be proved through the testimony of PWs 4, 5 and 64 and also by the recitals in Ext.P1 cannot be accepted for the reason that from Ext.P1 no authorship of concealment could be discerned. Stated differently, the confession statement sought to be relied on by the prosecution to connect 7th accused with the crime does not show that it was 7th accused who sold the chain to PW4. This contention is not sustainable for very Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 96 many reasons. First of all, it has been held by a Full Bench of this Court in Ajayan v. State of Kerala (2011 (1) KLT 8) that authorship of concealment is not a sine qua non to make a statement admissible. Secondly, the testimony of PWs 4 and 5, though did not reveal the presence of 7th accused, show that PW64 has effected a recovery as per Ext.P1 mahazar. As mentioned above, what is relevant is the deposition of the person who discovered the relevant fact on the basis of an information furnished by the accused in custody. PW64 has categorically deposed to the fact leading to recovery of MO2 gold chain and his deposition remains credible despite lengthy cross examination. Hence this contention cannot be accepted.
134. Learned Senior Counsel placing reliance on the decision in Central Bureau of Investigation v. Ashok Kumar Aggarwal and another ((2013) 15 SCC 222) contended that in practice conviction of a person on the testimony of an accomplice should not take place, except under very rare and exceptional circumstances. We have already discussed the law relating to the appreciation of evidence of an approver. Apex Court in very many decisions has held that an accomplice is a competent witness and a conviction is not illegal merely it proceeds on the uncorroborated testimony of an accomplice. However, Illustration (b) to Section 114 of Evidence Act strikes a note of warning, cautioning the court to look for some corroboration to satisfy its conscience that the approver's testimony, which Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 97 is clearly admissible, is also worthy of belief. No new principle has been enunciated in Ashok Kumar Aggarwal's case (supra).
135. Learned Prosecutor relying on the decision in State of U.P. v. Krishna Master and others (AIR 2010 SC 3071) contended that minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences tore out of context from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, etc. would not ordinarily permit rejection of the evidence as a whole. In paragraph 11, the Supreme Court pronounced the law thus:
"Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 98 of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short- coming from which no criminal case is free. The Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 99 main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in the earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye - witnesses examined in this case proves the prosecution Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 100 case."
136. Learned Prosecutor further contended, based on the decision in Krishna Master's case (supra), that a rustic witness, who is subjected to fatiguing, taxing and tiring cross examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place, if a witness is cross examined at length for days together. It is therefore contended that merely for some minor discrepancies brought out from plebeian witnesses, who have been cross examined ad nauseam for days together, it cannot be taken as a reason for discarding their true testimony.
137. In respect of the 2nd accused, learned Senior Counsel raised a contention that the prosecution put forwarded a case that two crucial letters had come into existence, one before perpetrating the crime and the other, after committing the same. One letter is said to be written to the 2nd accused at the instance of 8th accused intimating the problems caused by Chandran and after the incident, some of the accused intimated about accomplishment of the plan chalked out at the instance of 2nd accused. These two letters were not produced. Learned Senior Counsel referring to the decision in Ma Mi and another v. Kallander Ammal (AIR 1927 Privy Council 15) contended that statements of witnesses, who have not themselves read the document, are not secondary evidence of the contents Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 101 of the document within the meaning of Section 63 of Evidence Act. Oral evidence regarding the contents of the document must be given by some person who has seen those contents, that is to say, who has read the document. Evidence that the witness saw the document and heard it read out by someone else is only hearsay so far as the contents are concerned, and does not fulfil the requirements of Section 60 of Evidence Act. True, testimony of the witnesses, who referred to these letters, can only be used to probabilise the prosecution case that every action and reaction were intimated timely to the 2nd accused by his workers. It is true that merely on the basis of the letters not produced, 2nd accused's guilt cannot be pronounced.
138. It is further contended by the learned Senior Counsel that the 2nd accused cannot be called an abettor in the eye of law and therefore he cannot be punished under Section 109 IPC. Section 107 IPC defines abetment of a thing in the following words:
"Abetment of a thing.-A person abets the doing of a thing, who-
First.-Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 102 Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
Section 109 IPC deals with the punishment of abetment, if the act abetted is committed. It reads as follows:
"Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.- Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation.- An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 103 constitutes the abetment."
139. In order to bring a person "abetting the doing of a thing", under anyone of the Clauses enumerated under Section 107 IPC, it is not only necessary to prove that the person who has abetted has taken part in the steps of the transaction, but also in some way or other, he has been connected with those steps of the transactions, which are criminal in nature. The offence of abetment depends upon the intention of the person who abets, and not upon the act which is actually done by the person, whom he abets (see Kartar Singh v. State of Punjab ((1994) 3 SCC 569).
140. Cross and Jones, on their work "Introduction to Criminal Law" (9th Edition) page 387, specify the ingredients to constitute abetment as (a) that the accused aided, abetted, counselled or procured the commission of the principal offence (b) that the principal offence was in fact committed; and (c) that he had the intent to aid or encourage its commission.
141. It is well settled that in order to proceed against a person for criminal offence under Section 107 IPC, the prosecution must prove the element of mens rea. Section 107 IPC, which contains the definition of abetment, has three Clauses and if an act of a person falls within the purview of any of them, it would amount to an abetment. A person abets the doing of a thing who intentionally aids, by any act or illegal omission, Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 104 the doing of that thing. The scope of the word "aids" has been clarified in Explanation 2. It explains what is meant by aiding simpliciter. According to the explanation, an act which merely amounts to aiding the commission of an offence is not abetment; the aiding must be an intentional aiding. In other words, commission of the act must be the dominant intention of the person who aids it and then only it can be said that he intentionally aided it.
142. Regarding abetment by instigation, it can be stated that a person is said to instigate another to act when he actively suggests or stimulates him to the acts by any means of language, direct or indirect, whether it takes the form of express solicitation or of hints.
143. Learned Senior Counsel contended, in this case there is no evidence to hold that the murders were committed on the instigation of 2nd accused. We are unable to accept this contention as we take note of the overwhelming evidence in this case. It is clear from believable and dauntless evidence, which we have discussed above, that the 2nd accused had played an active role in the commission of crimes. It may not be commonsensical to insist on direct evidence with regard to abetment and conspiracy, as those are criminal acts normally done in secrecy. Trustworthy evidence adduced by the aforementioned witnesses clearly established the role played by 2nd accused to achieve their prime object of eliminating Chandran. It may be true that Thankamani might not have Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 105 been their target initially. But, simply to efface or wipe out the evidence regarding Chandran's murder, they had gone to the extent of killing Thankamani. Therefore, the prosecution evidence clearly established the intention of 2nd accused in instigating and aiding the perpetrators to complete the offence.
144. Upshot of the above discussions take us to an irresistible conclusion that the direct evidence tendered by PW3 regarding commission of the offence, which has been ably corroborated by the oral evidence adduced by the witnesses mentioned above, including the investigating officer and the documentary evidence, coupled with the testimony of expert witnesses, viz., PWs 24, 42, 53, 54 and 58, and also the reports submitted by them like postmortem report, chemical analysis report, report regarding superimposition, etc. would amply and eminently prove the guilt of accused 1, 2 and 7. Therefore, we find no reason to interfere with the conviction and sentence imposed on them.
Contentions raised by the 9th accused (Crl.Appeal No.867 of 2009).
145. Trial court convicted 9th accused for offences punishable under Sections 201, 204 and 218 IPC. He was directed to undergo rigorous imprisonment for three years and pay a fine of `1,000/- under Section 201 IPC. He is also sentenced to undergo rigorous imprisonment for six months Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 106 and pay a fine of `500/- under Section 204 IPC. Further, he is sentenced to rigorous imprisonment for one year and pay a fine of `750/- under Section 218 IPC.
146. Admittedly, 9th accused, as the Circle Inspector of Police, was in charge of the investigation to begin with. On account of an uproar by local people, the Government withdrew the case from local police and handed over to CBCID. It is alleged that 9th accused caused disappearance of evidence to screen the offenders, secreted or destroyed documents and framed an incorrect record or writing with intent to save some of the accused from punishment. PW1 is the first witness who spoke against 9th accused. We have already discussed his testimony in detail in connection with the appeals filed by accused 1, 2 and 7. As seen earlier, his testimony regarding the role played by 9th accused to cover up the guilt of accused 2, 6 and 7 can only be regarded as hearsay.
147. PW3 is the key witness. Prosecution heavily relied on his testimony to establish the involvement of 9th accused in the alleged offences. As discussed above, he was made an accused when 9th accused had investigated the case. It is the testimony of PW3 that he along with Kuttappan, Mothirakanni and 1st accused met PW33 Chacku. As instructed by them, Kuttappan prepared a letter addressed to 9th accused narrating the actual incidents transpired in connection with the crimes. When PW33 Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 107 handed over the letter to 9th accused, he wanted to meet PW3 and others. PW3, on being suspicious about his intentions, did not meet him. After a few days, he met 9th accused along with a Panchayat member in Ramu Lodge, Nenmara, where 9th accused was staying at that time. It is the allegation raised by PW3 that 9th accused strictly warned him not to implicate accused 2, 6 and 7 in the offences. PW3 further deposed that 9th accused insisted that former should not divulge date of the incident as 11.11.1992 and told PW3 that he would decide the date on which Chandran and Thankamani disappeared.
148. PW3 has a further case that after his arrest, 9th accused physically assaulted him five times from the lock up for pressurizing him to toe in his line. Despite cross examination, testimony of PW3 in this regard has not been rendered doubtful.
149. PW25, owner of Ramu Lodge, Nenmara, where 9th accused stayed during that period, deposed that accused 2 and 6 used to come and stay in the lodge and he had seen the accused 2 and 6 cordially talking to 9th accused before and after spreading news about the murders. It is true that merely for this reason 9th accused cannot be mulcted with a criminal liability. But this fact assumes importance when we consider the testimony of PW10. His assertion that he had association with deceased 10th accused has not been challenged at all. It is his version that through 10th Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 108 accused he had occasion to meet 9th accused at his residence for and on behalf of 2nd accused. It is clear from the testimony of this witness that a deal had been struck between accused 2 and 6 on one hand and 9th accused on the other. Therefore, the testimony of PW25 read along with that of PW10 would show the intimacy developed between accused 2 and 9 at the material time.
150. PW26 was the Tahsildar, Chittur. He conducted inquests on the body of deceased Chandran and Thankamani. During this period, 9th accused was in charge of the investigation. It has come out in evidence of PW26 that some material objects were recovered at the time of inquests. He testified that deceased Kuttappan had shown the place where Chandran's body had been buried. This witness identified accused 2 and 9 from the dock. PW26 deposed that he had occasion to see 2nd accused in the office of 9th accused even before the inquest. When PW26 had gone to the office of 9th accused on one day prior to inquests, 2nd accused had been sitting in 9th accused's room. The room was very small and only one person could have been comfortably seated. On seeing PW26, 9th accused introduced 2nd accused to him. Immediately 2nd accused went out to accommodate him. To a query made by PW26, 9th accused informed him that it was Paulose, a planter having tapioca plantation in Mandhamchola. When PW26 gathered information from local people (panchayathdars) at Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 109 the time of inquest about involvement of Paulose in the incident, he asked 9th accused whether it was the same person whom he had met previously. But 9th accused dodged that question.
151. On the above aspect, counsel for 9th accused cross examined PW26. It is an undeniable fact that 9th accused was present at the time of inquest as he was in charge of the investigation at that time. It is the testimony of PW26 in cross examination that he was not aware that 9th accused was the investigating officer as he had seen A.S.P., Alathur and other Officers present at the time of inquest. PW26 deposed in cross examination that his meeting with 2nd accused in the office room of 9th accused was during early days in March, 1993. The inquest was on 21.03.1993. When challenged that PW26 did not inform the investigating officer about the actual date of meeting 2nd accused in the office of 9th accused, he answered that their meeting was a few days before the inquest. It can be seen from Ext.P122 (passport) that during the first week of March, 1993, the 2nd accused was in India as he had come from Abudhabi a few weeks before. Insignificant discrepancies and deficiencies in the testimony of PW26 was correctly discarded by the trial court. It is the testimony of PW26 that he had gone to the office of 9th accused for an official purpose and that fact had been informed to the investigating officer, though he might have omitted to mention the purpose for which he had Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 110 gone to meet 9th accused. PW26 clearly denied the suggestion that he never met 2nd accused in the office of 9th accused. There is absolutely no reason brought out in the cross examination to hold that PW26 was falsely implicating 9th accused in this case.
152. PW62 Krishnan was a Head Constable in Padagiri Police Station from 1991 to 1995. In chief examination, he affirmed that from 12.02.1993 to 20.12.1993 he recorded statements of the witnesses and events in the case diary, according to the instructions of 9th accused. Through this witness Ext.P87 FIS was marked as A.S.I. Krishnankutty, who recorded Ext.P87, died before trial of the case.
153. Ext.P88 FIR is also proved through this witness as the maker of the document was no more. On 20.03.1993, 9th accused arrested deceased Kuttappan and PW15 Parameswaran. At that time PW62 was present in the Police Station. 9th accused questioned them and their statements were recorded by PW62 as instructed by 9th accused. On receiving statement from Kuttappan, 9th accused filed a report before the court for altering the charges. That is marked as Ext.P89. On 21.03.1993, along with deceased Kuttappan and PW15, the police party went to Mandhamchola accompanied by Tahsildar (PW26) and Dr.Ramankutty (PW53) for exhumation of body and postmortem examination. At that time PW62 was also present. As instructed by 9th accused, he prepared the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 111 scene mahazar, which is marked as Ext.P90. He testified that he had signed on Ext.P90. He prepared Ext.P91 scene mahazar relating to Chandran's shed. At the time when Chandran's body was exhumed, PW62 was present. Ext.P22 inquest report was prepared in the hand writing of PW62. It is his evidence that PW15 pointed out the place where body of Thankamani was burned. Ext.P23 is the inquest report and that too was prepared in the hand writing of PW62. Thereafter, as part of investigation, so many material objects and articles were recovered and all the mahazars were prepared in the hand writing of PW62 as dictated by 9th accused. Ext.P97 remand report relating to PW3 was also prepared in the hand writing of PW62 as per the directions of 9th accused.
154. Even though in cross examination it was suggested that the records were not in his hand writing, PW62 denied the suggestion and asserted that all the documents proved through him were prepared in his hand writing.
155. When he was cross examined by counsel for accused 2, 5 and 6, PW62 stated that when the witnesses and accused were questioned by 9th accused, what they answered were repeated by 9th accused and PW62 was asked to write down the words uttered by 9th accused. It is his version in cross examination that the confession of PW3, Kuttappan and PW15 were recorded in his own hand writing. At that time, the concerned person, Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 112 9th accused and himself were only present in the room. In the remand report and report filed for altering the nature of offences prepared by PW62, it was shown that from 27.11.1992 onwards Chandran and Thankamani were missing. When that fact was brought to the notice of PW62, he answered that 9th accused asked him to write 27.11.1992 as the date of their disappearance. He deposed that at the time of inquest, PW26 had questioned local people and they also intimated that from 27.11.1992 onwards these two persons were not seen. But who intimated that date to PW26 has not been clearly brought out. In cross examination, PW62 deposed that on 20.03.1993 he recorded the statement of PW33 Chacku. But, he stated that PW33 was not present when his statement was recorded and it was written up as instructed by 9th accused.
156. This witness was cross examined by the counsel for 9th accused too. At that time, he deposed that he was aware that the statement of a witness or accused should be recorded in his presence. But, in this case, he was forced to record a statement in the absence of its maker as 9th accused wanted him to do so. Testimony of PW62 casts a serious doubt in the truthfulness of initial investigation by 9th accused. Serious irregularity, if not illegality, in recording a statement in the absence of its maker is an indicator that 9th accused had an interest to screen some of the offenders.
Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 113
157. Testimony of PW64 is also relevant in this context. PW64 testified that 9th accused was alloted with an official quarters at Kunnathurmedu, Palakkad. Ext.P111 is the document to show that fact. PW20 was examined to show that telephone No.423 was used in room No.8 in Ramu Lodge, Nenmara and it was the residential telephone connection of 9th accused. Testimony of PW64 coupled with this evidence would show that 9th accused resided in Ramu Lodge at the material time. This aspect probabilises the evidence of PW25 that accused 2 and 6 had frequently met 9th accused in Ramu Lodge.
158. PW64 was cross examined by the counsel for 9th accused elaborately. As we have already discussed about non-acceptability of the voice recording to implicate 9th accused, we need not discuss those aspects borne out from the cross examination.
159. PW64 in cross examination stated that during the course of investigation by Dy.S.P. Mohanan, PW3 Thomas had given a statement and that formed the part of case diary file. But, he could not rely on that as nobody had attested the statement. PW64 admitted when it was suggested to him by the counsel for 9th accused that during the investigation by A.S.I.Krishnankutty and by C.I.Chandran, the date of disappearance of the victims was stated to be 27.11.1992. But he clearly added that when he questioned PW15 on 10.03.1996, he stated that the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 114 incident was on 11.11.1992. In addition to that, other accused persons, when questioned, also stated that the incident was on 11.11.1992. PW64 admitted that the letter said to have been sent to 9th accused through PW33 could not be recovered. The defence case is that during the time of investigation by 9th accused, all the material witnesses deposed that Chandran and Thankamani went missing on 27/28th November, 1992. PW3 when questioned by PW64 on 05.09.1996 stated that the incident was on 11.11.1992. On that basis, further investigation proceeded and gathered evidence from the accused involved in this case and also from the prosecution witnesses to arrive at a conclusion that the killing of the duo was on 11.11.1992. Specific contention raised by 9th accused that as investigating officer, he was informed that their disappearance was on 27/28th November, 1992 and he did not manipulate the date after knowing that murder was on 11.11.1992, cannot be believed for multiple reasons. Natural and credible testimony of PW3 would show that the actual incident was on 11.11.1992 and not on 27/28th November, 1992. This is supported by the testimony of PW15. Their testimony coupled with that of PWs 10 and 34 fortify the prosecution case that there was a fantastic fabrication of the date of their disappearance.
160. Learned Senior Counsel contended that 9th accused was responsible for altering the date of murders from 11.11.1992 to 27.11.1992 Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 115 is an allegation not at all established by any reliable evidence. It is also contended that there is no reliable evidence to hold that PW3 and others gave a letter to 9th accused confessing the crime. It is the argument that one can mockingly say that 9th accused was an inefficient officer, but he cannot be called a manipulator of records for screening the offenders. It is also contended that at the time of inquest, the people assembled there mentioned 27.11.1992 as the date of disappearance of the victims.
161. Per contra, learned Prosecutor contended that 11th accused Narayanan was the first person to inform PW26 that the dead persons were missing from 27.11.1992. It is the definite case that falsification of the date was done at the instance of accused 2 and 9. The prosecution case is that 9th accused knew from the confession letter by the accused much before the inquest that the incident was on 11.11.1992 and that Ext.P89 report was submitted by him only on 20.03.1993, giving ample opportunity to 2nd accused to leave the country on 08.03.1993, despite he came to know that 2nd accused was the kingpin of the crimes. Learned Prosecutor contended that the testimony of PWs 3, 25, 26 and 33 and above all PW62 would reveal the role played by 9th accused in making an attempt to cover up the incident by changing the date from 11.11.1992 to 27.11.1992. Testimony of PW10 also unravels the intimacy developed between accused 2 and 9 after the incident. The credible oral evidence of the Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 116 aforementioned witnesses reveal the complicity of 9th accused in attempting to conceal the offence against accused 2, 6 and 7 is the prosecution case.
162. As mentioned above, facts and circumstances established by dependable testimony of the aforementioned witnesses clearly indicate the nefarious role played by 9th accused in aiding the accused not only in causing disappearance of evidence, but also screening the accused from legal punishment.
163. Section 201 IPC deals with causing disappearance of evidence of offence, or giving false information to screen the offender. In order to attract the offence under Section 201 IPC, it has to be established that (a) an offence has been committed, (b) the accused must know or have reason to believe that the offence has been committed, (c) the accused must either cause any evidence of the commission of that offence to disappear or give any information respecting the offence which he knows or believes to be false and (d) the accused must have acted with the intention of screening the offender from legal punishment. Judicial pronouncements are aplenty interpreting the scope of the Section. Evidence in this case would clearly show that there were ample reasons for 9th accused to know, at least from the date of getting information through the letter written by Kuttappan and handed over by PW33 and also from Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 117 other sources that the incident was on 11.11.1992. Ext.P122 would show that 2nd accused had left India on 24.11.1992. It is the definite prosecution case that 9th accused shifted the date of murders from 11.11.1992 to 27.11.1992 to extricate 2nd accused from criminal liability. PW3 has spoken to that he was intimidated and manhandled by 9th accused from the lock up to change the date from 11.11.1992 to 27.11.1992 to save 2nd accused from the accusation. Evidence in this case against 9th accused, if taken together, will show that he intentionally acted to cause disappearance of the evidence of commission of offence with an intention to screen 2nd accused and his family from criminality. Therefore, we find no reason to interfere with the finding of the trial court that 9th accused is guilty of an offence under Section 201 IPC.
164. Decision rendered by the Supreme Court in State of Karnataka v. Madesha and others ((2007) 7 SCC 35) lays down a proposition that the offence under Section 201 IPC would have application even if the main offence was not established. Here, in this case, the position is all the more favourable to prosecution. We have already seen that the offence had been committed by accused 1 and 7 and 2nd accused was an abettor to the murder of Chandran. Therefore, the said proposition also goes against the plea of 9th accused. Hence we hold the conviction of 9th accused under Section 201 IPC as unassailable. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 118
165. Regarding the conviction of 9th accused under Section 204 IPC, learned Senior Counsel put up a serious challenge. Section 204 IPC reads as follows:
"Destruction of document or electronic record to prevent its production as evidence.- Whoever secretes or destroys any document or electronic record which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant, as such, or obliterates or renders illegible the whole or any part of such document or electronic record with the intention of preventing the same from being produced or used as evidence before such Court or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
On a reading of the Section, it will be clear that the document secreted or destroyed should be one capable of being produced as evidence in a court of justice. In other words, the person, who said to have destroyed or secreted the document, must be capable of being lawfully compelled to produce the same as evidence in a court or it must have been destroyed or secreted with an intention of preventing the same from being produced or Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 119 used as evidence. Charge under Section 204 IPC is levelled against 9th accused for not producing the confession letter said to have been written by Kuttappan at the instance of PW3 and others. The contents of the letter could only be a confession of guilt of a serious crime. Assuming that it was suppressed or destroyed by 9th accused, by no legal reasoning it can be said that he is guilty under Section 204 IPC for the sole reason that a confession by an accused to a police officer is inadmissible in evidence under Section 25 of Evidence Act. To put it differently, even if 9th accused had produced the letter before a court of law, it was incompetent for any court to take note of a confession to a police officer as a piece of evidence. Therefore, the document said to have been destroyed or secreted by 9th accused is not one which could have been lawfully produced before a court. Therefore the offence under Section 204 IPC found against 9th accused is unsustainable and we set aside the same.
166. Another provision of law under which 9th accused is convicted is Section 218 IPC. It deals with the punishment on a public servant for framing incorrect record or writing with intent to save a person from punishment, etc. In order to attract this provision, it must be established that a public servant, charged with the preparation of any record or writing, framed that record or writing in a manner, which he knew to be incorrect, with intent to cause loss or injury to any public or to any person or with an Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 120 intent to save or knowing that it is likely to save any person from legal punishment, etc. The evidence discussed above would show that 9th accused, with the intention of saving accused 2, 6 and 7, manipulated the records by changing the crucial fact, viz., the date of incident. Therefore, the trial court is right in holding that 9th accused is guilty of an offence under Section 218 IPC. We find no reason to interfere with that finding of the trial court.
167. To sum up, we find that the conviction of 9th accused under Sections 201 and 218 IPC are sustainable and that under Section 204 IPC is unsustainable. Considering the quantum of punishment awarded for the offences punishable under Sections 201 and 218 IPC, we find no reason to hold them excessive or disproportionate, and therefore, no interference is warranted.
Contentions raised by accused 3, 4 and 8 (Crl. Appeal No.888 of 2009):
168. These accused persons are sentenced for lesser offences. Trial court found accused 3 and 4 guilty of an offence under Section 201 IPC. They are sentenced to undergo rigorous imprisonment for three years each and pay a fine of `1,000/- each and also imposed default sentences on them. 8th accused was convicted under Section 118 IPC and punished for rigorous imprisonment for three years and a fine of `1,000/-. In his case Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 121 also, a default sentence was imposed.
169. Insofar as the involvement of accused 3 and 4 in causing disappearance of the evidence to screen an offender, punishable under Section 201 IPC, is concerned, testimonies of PWs 3 and 15 have been relied on by the prosecution. We have discussed the evidence of PW3 Thomas in great detail in the foregone paragraphs. He deposed that Thankamani's body had been burned by these accused is a fact known to him. PW15 Parameswaran was also charged for the same offence and as mentioned above, he turned an approver and deposed against the accused persons. We have discussed this evidence too elaborately in the previous paragraphs. Suffice it to say that PW15 deposed that he met 4th accused on a day in December, 1992 and at that time, latter informed him that Chandran and Thankamani were missing. Thereafter PW15, as insisted by 4th accused, went to Mandhamchola and met 3rd accused. While in Mandhamchola, PW15 stayed in the house of 3rd accused. As instructed by some local people, 4th accused filed a man missing complaint on 08.01.1993 in Padagiri Police Station, when they did not get any clue about the disappearance of Chandran and Thankamani. On the next day police visited Mandhamchola. Thereafter 4th accused informed PW15 that a human skull, bones, blouse, etc. were found in the forest. Accused 3 and 4, along with PW15, went to the place where the body remains were found Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 122 and understood that those parts could be that of Thankamani. Then PW15 contacted 2nd accused and informed him about discovery of the body remains of Thankamani. 2nd accused told PW15 and accused 3 and 4 that Chandran might have killed Thankamani and left the place. He asked PW15 and accused 3 and 4 to burn the mortal remains without informing police, because if they had brought that fact to the notice of police, Chandran could land in trouble. It is PW15's version that on believing the words of 2nd accused, accused 3 and 4 and himself burned the remains of Thankamani. This evidence of PW15 clearly revealed the complicity of accused 3 and 4 in burning the body parts of Thankamani in order to cause disappearance of evidence relating to an offence. It is true that they were informed by 2nd accused that Chandran might have killed Thankamani and absconded. It is equally true that they were not aware of the fact that Chandran was also killed in the same transaction. The question then arising for consideration is whether accused 3 and 4 could be convicted under Section 201 IPC as they never intended to screen the real offender? The answer can only be in the affirmative. We are fortified by the following reasons for holding so.
170. First part of Section 201 IPC reads as follows:
"Causing disappearance of evidence of offence, or giving false information to screen offender.-Whoever, knowing or having reason to Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 123 believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence.-shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
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On a careful reading of the above part of the Section, it will be clear that whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, shall be punishable with imprisonment prescribed in the Section. On a close scrutiny of the wording employed in the Section, it can be seen that what is required to attract the offence is causing any evidence of commission of the offence to disappear and it must be with an intention of screening the offender from legal punishment. In other words, intention to screen the offender must be the primary and sole object of the accused. There must be on-record cogent evidence to prove that accused had knew Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 124 or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear, in order to screen the offender, known or unknown (see Sukhram v. State of Maharashtra - AIR 2007 SC 3050). Fact that accused 3 and 4 caused the disappearance of evidence by burning the remains of Thankamani merely to protect Chandran from legal punishment, although it came out eventually that he was not the real offender, cannot be a defence at all. When accused 3 and 4 became aware that an offence had been committed and their attempt was to screen the offender, whether it be a friend or relative or even an unknown person, the offence under Section 201 IPC gets attracted. As a principle, it can be stated that if a person causes disappearance of evidence relating to an offence with an intention to screen the offender, believing that it was committed by an individual in whom that person is very much interested, will be guilty of the offence under Section 201 IPC even if it was later revealed that the offence was committed by someone else and the person charged had no intention to screen the real offender. In other words, what is relevant under Section 201 IPC is the causing of disappearance of evidence relating to an offence with an intention to screen the offender, whoever that may be. Any other interpretation of the Section will result in absurdity.
171. Apart from the said witnesses, testimonies of PW26 Tahsildar Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 125 and PW64 DY.S.P. also prove the guilt of the accused in causing disappearance of evidence to screen the offender. Besides, Exts.P23 and P56 also reveal the complicity of the accused in the offence. Therefore, we are of the view that conviction of accused 3 and 4 for an offence under Section 201 IPC is perfectly justifiable.
172. 8th accused was found guilty under Section 118 IPC. The Section deals with concealing design to commit an offence punishable with death or imprisonment for life. The ingredients of the offence are (i) existence of a design to commit an offence (ii) the offence is punishable with death or imprisonment for life (iii) there is voluntary concealment with knowledge of the said design and (iv) the accused facilitated or committed the said offence. Allegation against 8th accused is that he intimated 2nd accused, through a letter that deceased Chandran was making problems in the plantation and he obstructed the activities relating to cultivation of tapioca in the farm land belonged to accused 2 and 6. It is to be remembered that even prior to the reception of this letter, accused 2, 6 and 7 were bitterly enmical towards Chandran. It is the prosecution case that on receiving the letter, they planned to eliminate Chandran. It is also contended that after killing Chandran and Thankamani, 8th accused wrote another letter to 2nd accused intimating the accomplishment of their evil design. To prove all these facts, testimonies of PWs 1, 3 and 34 were Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 126 relied on by the prosecution. We have elaborately discussed the oral evidence above. It is clear that 8th accused, as a caretaker employed by 2nd accused, was in touch with him and he timely informed all the developments to his master. Evidence adduced by PWs 1, 3 and 34 would show that 8th accused was fully aware that he was facilitating the commission of murder of Chandran, an offence punishable with death or imprisonment for life. Overwhelming evidence adduced against 8th accused was correctly relied on by the trial court to find that he was guilty of an offence under Section 118 IPC. We find no reason to interfere either with the conviction.
173. In conclusion, we find that the conviction of accused 3, 4 and 8 for the offences mentioned above and the sentence imposed on them by the trial court are proper and legal. We do not find any reason to interfere with conviction and sentence.
Contentions raised by 12th accused (Crl.Appeal No.866 of 2009):
174. 12th accused was convicted for offences punishable under Sections 201, 204 and 218 IPC. Prosecution case is that PW10 and accused 2 and 12 were known to each other closely as they were working together in Abudhabi. It is the prosecution case that 2nd accused approached PW10 for securing the indulgence of 9th accused to alleviate some of his problems, then latter contacted 12th accused, as he had Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 127 connections with deceased 10th accused (a police constable). Through him, 2nd accused and PW10 established a contact with 9th accused. Prosecution relies on the testimony of PW10 to inculpate this accused. PW10 deposed that when accused 2 and 6 came and sought his help for establishing a relationship with 9th accused, he contacted 12th accused and through him 2nd accused negotiated with 9th accused. According to the testimony of PW10, it was not clear as to what was the role played by 12th accused in forging a relationship between accused 2 and 9. It has come out in evidence that the 2nd accused informed PW10 that there were some labour problems in the plantation for which he needed help from police. There is no material on record to hold that 12th accused was aware that 2nd accused was involved in a murder case and he frantically attempted to contact 9th accused to extricate himself and his family from the accusation. The evidence adduced against 12th accused will only show that through deceased 10th accused he approached 9th accused as requested by his friends, ie., 2nd accused and PW10. There is no allegation that he tried to cause the disappearance of evidence regarding murder. The allegations against 12th accused are so vague that none of the offences alleged against him could be established by the prosecution. Therefore, we find that the conviction of 12th accused for the aforementioned offences is not proper. Hence we set aside the convictions and set him free. Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 128
175. We are compelled to take note of the sad state of affairs prevailing in the State in the matter of crime investigation. Apex Court, on taking cognizance of the deplorable law and order situation prevailing in various States and taking note of the urgent need for preserving and strengthening the rule of law, issued directions in Prakash Singh and others v. Union of India and others ((2006) 8 SCC 1). It has been held in clear terms thus:
"The commitment, devotion and accountability of the police has to be only to the rule of law. The supervision and control has to be such that it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the rule of law becomes a casualty, the guilty police officers are brought to book and appropriate action is taken without any delay."
Despite giving definite directions on various matters for improving the law and order situation, crime investigation and efficiency of police force, sadly no change could be seen in crime investigation and it continues to be in the same pathetic and disgusting condition. This Court in Joseph Kuncheria Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 129 v. State of Kerala (2014 (3) KLT 1) has reminded all concerned that the responsibility of Police would not end by submission of a final report. Established facts unravel a saga tending to destroy the credibility of the investigative machinery by delaying investigation and distorting evidence on unjustifiable reasons. Only on account of the best efforts by PW64, truth of a gruesome double murder could be brought to light. Genuine, committed and timely action on the part of the investigating officer would have earned much more credibility to the police force and it would have been easy to gather reliable evidence without much effort. It is high time for the Government to take some concrete action in the matter of separating crime investigation and maintenance of law and order. Investigation of serious crimes entrusted to unskilled, amenable and influenceable police officers will do great amount of disservice to the citizenry.
In conclusion, the appeals preferred by accused 1, 2, 3, 4, 7 and 8 (Crl.Appeal Nos. 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011) are hereby dismissed, confirming their convictions and sentences. The appeal filed by the 9th accused (Crl.Appeal No.867 of 2009) is partly allowed confirming his conviction and sentence under Sections 201 and 218 IPC. He is acquitted under Section 204 IPC. It is seen that this Court as per orders in Crl.Appeal No.867 of 2009 dated 12.05.2009 and Crl.Appeal Nos.866 of 2009, 867 of 2009, 880 of 2009, 888 of 2009, 1240 of 2009 and 91 of 2011 130 Crl.Appeal No.888 of 2009 dated 19.05.2009 had suspended the sentences imposed by the trial court on accused 3, 4, 8 and 9. The said orders are hereby vacated and the trial court shall take urgent steps to procure the presence of the convicted accused to serve out the sentences imposed on them. Set off under Section 428 Cr.P.C. is allowed to all the accused. Appeal preferred by 12th accused is allowed. He shall be set free forthwith if not wanted in any other case.
All pending interlocutory applications will stand dismissed.
P.R.RAMACHANDRA MENON, JUDGE.
A. HARIPRASAD, JUDGE.
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