Kerala High Court
Anandan vs State Of Kerala Represented By The on 5 October, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 5TH DAY OF OCTOBER 2012/13TH ASWINA 1934
CRL.A.No. 1522 of 2008 ( )
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SC.354/2003 of ADDITIONAL DISTRICT COURT (ADHOC-I), THODUPUZHA
APPELLANT(S)/ACCUSED 2,3,AND 4.:
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1. ANANDAN, S/O.AYYAPPAN, KRISHNA VILASOM
VEEDU, PULLUVEEDU BHAGOM, MALI KARA
VANDANMEDU.
2. PANDI, S/O.RAJU THEVAR, HOUSE NO.VPX/45,
PULLUVEEDU BHAGOM, MALI KARA, VANDANMEDU VILLAGE.
3. PALPANDY, S/O.AYYANTHEVAR,
HOUSE NO.VPX/58,PULLUVEEDU BHAGOM, MALI KARA
VANDANMEDU VILLAGE.
BY ADVS.SRI.V.V.RAJA
SRI.R.RANJITH
SRI.M.T.SURESHKUMAR
RESPONDENT(S)/RESPONDENTS /COMPLAINANT.:
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STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI.GIKKU JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-10-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ.
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CRL.A.NO.1522 OF 2008
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Dated 5th October, 2012
JUDGMENT
Sasidharan Nambiar,J.
Accused 2 to 4 in S.C.354/2003 on the file of Additional Sessions Court (Adhoc-I), Thodupuzha who were convicted and sentenced to imprisonment for life and a fine of Rs.25,000/- and in default rigorous imprisonment for two years each for the offence under Section 302 read with Section 34 of Indian Penal Code, filed this appeal, challenging the conviction and sentence. First accused was acquitted and State has not preferred any appeal challenging his acquittal.
2. Deceased Venkittakumar is the son of PW5 Gunavathyammal. First accused is her elder son. PW5 has also a daughter who is CRA 1522/08 2 married and is residing at Kodaikkanal. Husband of PW5 died somewhere in 1995-96 leaving behind a large extent of estate which was being looked after by PW5 and her two sons. First accused was married and is living with his wife separately. PW5 and deceased Venkittakumar were living together. Prosecution case is that first accused wanted division of the properties. PW5 was not willing for division of the properties till the marriage of Venkittakumar. As Venkittakumar was looking after the cardamom estate, getting substantial income, first accused had a grievance against Venkittakumar. Due to the said grievance, first accused hatched a criminal conspiracy with accused 2 to 4, to cause the murder of Venkittakumar. On 11/8/1999 while deceased Venkittakumar was proceeding along the way CRA 1522/08 3 leading from the eastern Mali-Inchappadavu Panchayat road, through S.R Estate accused 2 to 4 in furtherance of the criminal conspiracy, attacked Venkittakumar and inflicted injuries on his head using MO.1 axe and carried the body to a pit, situated 3 meters to the north of the said way and covered the body with dried leaves and left the place leaving MO.1 in another pit 3.48 meters to the north-west of the pit, where the body of Venkittakumar was dumped. Gopal, the Manager of S.R.Estate finding the legs of a human being protruding from the pit, while proceeding along that way, went near to the pit and found the body. He informed the owners of the estate and then gone to Vandanmedu police station and furnished Ext.P21 F.I.Statement. It was recorded by PW36, who prepared Ext.P21(a) FIR and registered the CRA 1522/08 4 crime. (As that Gopal died later he could not be examined). PW37 the Circle Inspector of Police, Kattappana took over the investigation immediately and went to the scene of occurrence and took the body out of the pit and found that the body is that of Venkittakumar. PW37 conducted inquest and prepared Ext.P11 inquest report. As scene of occurrence was described in Ext.P11, no separate scene mahazar was prepared. PW37 seized MO.1 axe, found on north- western pit and got the service of PW29 the Scientific Assistant, to inspect the scene of occurrence, who prepared Ext.P12 report and collected blood stains and hairs and piece of stem containing blood, from the scene of occurrence. The body was sent for postmortem examination with necessary requisition. PW38 Dr.Babu, then Assistant Professor of Forensic CRA 1522/08 5 Medicine, Medical College, Kottayam, conducted autopsy and prepared Ext.P31 postmortem certificate, certifying that the death was caused due to the injuries sustained on the head, i.e, injuries 1 to 5 described in Ext.P31. PW34, Sub Inspector of Vandiperiyar Police Station on getting information that accused 2 to 4 are there in Central Lodge, reached there and took them into custody and brought them to Vandiperiyar police station on 29/8/1999. PW37, arrested them on 28/8/1999 and produced them before the Magistrate. Mos.2 to 13, the dresses found on their body were seized. PW37 submitted Ext.P13 report incorporating the offence under Section 302 read with Section 34 of Indian Penal Code as under Ext.P21(a) FIR, the crime was registered under caption suspicious death. The names and CRA 1522/08 6 details of accused 2 to 4 were also shown in Ext.P13 report. The material objects were produced before the Court and sent them for chemical examination by submitting forwarding note and obtained Ext.P42 series of reports.PW37 got recorded Ext.P15 statement of PW25 Girish, by PW33, the Judicial First Class Magistrate, under Section 164 of Code of Criminal Procedure. PW37 continued the investigation till 27/10/1999. Thereafter Dy.S.P., Kattappana took over the investigation on 27/10/1999 due to the complaint that investigation is faulty. He continued investigation till 15/12/1999. The investigation of the case was thereafter transferred to Crime Detachment and its Dy.S.P took over the investigation on 19/12/1999 and he continued the investigation CRA 1522/08 7 till 29/1/2000. While the investigation was in progress, the people of the area formed an Action Council demanding proper investigation and Crime Branch took over the investigation as directed by the D.G.P and PW39 Dy.S.P, Crime Branch submitted Ext.P32 report to the Court informing that fact. PW39 questioned the witnesses again. On 30/4/2001 PW39 submitted Ext.P43 report incorporating the offence under Section 120 B of Indian Penal Code also and Ext.P44 report incorporating the name of the first accused in the array of the accused. As attempt of the first accused to get pre arrest bail, he approached the Supreme Court and as directed by the Supreme Court, first accused surrendered before Judicial First Class Magistrate, Nedumkandam on 8/5/2001. PW39 obtained custody of first accused on 14/5/2001 CRA 1522/08 8 till 17/5/2001. After completing the investigation PW39 laid the final report for the offence under Section 120 B and 302 read with Section 34 of Indian Penal Code before Judicial First Class Magistrate, Nedumkandam. Learned Magistrate committed the case to Sessions Court, Thodupuzha. Learned Sessions Judge made over the case to Additional Sessions Court. The accused were defended by the counsel of their choice. First accused was defended by one counsel and another counsel appeared for all other accused.
3. When the charges for the offences under Section 120 B and 302 read with Section 34 of Indian Penal Code was framed and read over, appellants pleaded not guilty. The prosecution examined 39 witnesses and marked 46 exhibits and identified 13 material CRA 1522/08 9 objects. While cross examining Pws.1,3 and 13, defence got marked Exts.D1, D2, D3 and D4 series of portions of their statements recorded under Section 161 of Code of Criminal Procedure. After closing the prosecution evidence, accused were questioned under Section 313 of Code of Criminal Procedure and they denied the incriminating evidence put to them. They contended that they are innocent. Though learned Sessions Judge called upon the appellants to enter on their defence and adduce evidence, they did not adduce any evidence, either oral or documentary.
4. Learned Sessions Judge on the evidence found that there is no evidence to prove the criminal conspiracy and acquitted all the accused of the said offence. Learned Sessions Judge also found that there is no CRA 1522/08 10 evidence to connect the first accused with the murder of his brother and found him not guilty and acquitted him. Learned Sessions Judge relied on the evidence of PW1 and portion of the evidence of PW7 to corroborate the evidence of PW1 and found that deceased Venkittakumar was murdered by accused 2 to 4 in furtherance of their common intention and it was the second accused who inflicted the injuries on the head of the deceased and caused his death and all the accused together carried the body and dumped it in the pit from where the body was later recovered. Learned Sessions Judge also relied on the evidence of PW3 to hold that on hearing the cry, she along with PW2 reached there and they found the appellants running away from the scene of occurrence. Learned Sessions Judge also relied on the CRA 1522/08 11 evidence of PW16 Veluchami and held that third accused made an extra judicial confession. On the said evidence, he found the appellants guilty of the offence under Section 302 read with Section 34 of Indian Penal Code. appellants were convicted and sentenced accordingly.
5. Learned counsel appearing for the appellants argued that there is no legal evidence to prove the complicity of the appellants. It was argued that though it was alleged that accused 2 to 4 committed the murder for the first accused, in furtherance of the criminal conspiracy, on the evidence it was found that there was no criminal conspiracy. It was pointed out that though evidence of PW1 was relied on by the learned Sessions Judge, his evidence was not properly CRA 1522/08 12 analysed or appreciated. It was pointed out that evidence of PW37 Circle Inspector with Ext.D1 series of portion of the statements of PW1 establish that when PW1 was questioned by PW37, he had no case that he had witnessed the overt acts deposed from the witness box. It was pointed out that Ext.D1 series of portions of the statement recorded under Section 161 of Code of Criminal Procedure were proved by the evidence of PW37 who recorded the same and as per the said statements PW1 walking alone, along the road leading from the Panchayath road towards the west through S.R Estate and while so, he found accused 3 and 4 and the deceased and he only claimed that while passing them third accused asked PW1 whether he had seen the second accused and also informed PW1 that if he meets second accused, second accused is to CRA 1522/08 13 be informed that he should reach the spot and it is therefore, clear that the first version of PW1 to the police establish that he had not seen the second accused at the scene of occurrence at all. It is argued that in the light of this statement of PW1, his evidence from the witness box that he had seen the second accused along with accused 3 and 4 and that also the second accused inflicting injuries on the deceased can never be believed. Learned counsel also pointed out that as per the said version of PW1, he was alone and was not walking with PW7 Rangaswamy as deposed from the box and therefore, it is established that PW1 is not a trustworthy witness. Learned counsel also pointed out that as per the version of PW1, after returning to the estate of Thankappan Chettiyar to cut trees after CRA 1522/08 14 witnessing the incident, he met Rajendran who came there and along with Rajendran and PW7 he returned and he did not disclose the factum of the incident to Rajendran which is not the conduct of an ordinary human being. Learned Counsel also pointed out that even though PW1 admitted that there are other ways to reach Mali, he walked through the same way along with PW7 and Rajendran and did not even verify what happened to the body of Venkittakumar which is not an expected human conduct. It was also pointed out that as per the evidence of PW1 after he got information by 1 p.m that a body was found in the pit, he reached the scene of occurrence again by 3 p.m and the police party was there and the police had asked the people gathered there, whether anybody had seen the incident and PW1 though disclosed that he had CRA 1522/08 15 walked along that way, did not disclose that he had seen the incident. It is pointed out that if PW1 had witnessed the incident, he would have disclosed it at that time and the finding of the learned Sessions Judge that the non disclosure was due to fear cannot be correct, especially when PW1 admitted that his wife is an employee in the estate of PW5 and PW5 was helping his wife financially. It is pointed out that even if PW1 did not interfere while the accused were allegedly attacking Venkittakumar, in the ordinary human conduct, especially when wife of PW1 is an employee of PW5, he would have gone to PW5 and informed about the incident and would not have suppressed witnessing the incident. It was also pointed out that PW1, was only 400 feet away from the scene of occurrence for more than half CRA 1522/08 16 hour as deposed by him and on a proper appreciation of the evidence it is impossible to believe the version of PW1. Learned counsel argued that evidence of PW7 disproves the evidence of PW1 as according to PW7 he did not accompany PW1 while proceeding towards the property of Thankappan Chettiyar for the second time and he had reached the property of Thankappan Chettiyar much earlier to PW1. It was also pointed out that PW7 deposed that he did not see the incident and if PW7 was accompanying PW1 and PW1 had witnessed the incident, PW7 would have witnessed it and in such circumstances, instead of corroborating the evidence of PW1 evidence of PW7 contradicted the evidence of PW1. Learned counsel argued that the alleged extra judicial confession deposed by PW16, should not have CRA 1522/08 17 been relied on. It was pointed out that even as per the prosecution case, it was the second accused who inflicted injuries on the deceased and caused his death and if that be so, it cannot be believed that third accused would call PW16 over phone and falsely declare that he murdered the deceased. It is also pointed out that it cannot be believed that third accused would call PW16 and for no reason make an extra judicial confession and on the evidence, the alleged extra judicial confession cannot be relied on. Learned counsel also argued that evidence of PW2, do not corroborate the evidence of PW3. It was pointed out that evidence of PW2 if at all believed would only show that hearing the cry, PW2 along with PW3 while working in that estate, reached the place from where they heard the cry and at that CRA 1522/08 18 time PW2 saw three persons running. It was pointed out that when accused 2 to 4 are known to PW2 for the last several years and if it was accused 2 to 4 who were running as claimed by PW2, she would have identified them and therefore, her evidence cannot corroborate the evidence of PW3. Learned counsel argued that though PW3 claimed that she found accused 2 to 4 running from the scene while proceeding towards the place from where they heard a cry, it was unambiguously deposed earlier by PW3 that while reaching the scene, she did not find anybody and when Prosecutor specifically asked whether she had seen any of the accused, it was admitted by PW3 that she had not seen any of the accused. It was therefore, argued that her later claim that she found accused 2 to 4 running from the scene can never be believed. CRA 1522/08 19 Learned counsel also argued that Exts.D2 and D3 series of statements recorded before PW39 took over the investigation establish that PW3 had no case that she had seen accused 2 to 4 running away from the scene as claimed from the witness box and therefore, the evidence of PW3 cannot be relied on. It is therefore, argued that there is no evidence to prove the complicity of appellants in the murder and therefore, the conviction and the sentence are not sustainable.
6. Learned Public Prosecutor submitted that there is no reason to disbelieve the evidence of PW1. It was argued that investigation was not properly conducted earlier and when PW39 took over the investigation and questioned PW1, and his statement was recorded, PW1 stated the same CRA 1522/08 20 facts which were disclosed from the witness box. It was argued that the evidence of PW1 is to be properly appreciated in the light of the circumstances in which PW1 is living. It was pointed out that normally, PW1 would not have dared to disclose the factum of witnessing the incident because of the fear of accused 2 to 4 and it is for that reason PW1 did not disclose that he had seen the incident, when police asked the people who gathered there, after the dead body was brought from the pit, whether anybody had seen the incident and for that reason the evidence of PW1 cannot be disbelieved. It was also argued that later PW1, after getting support from the political party, disclosed that he witnessed the incident and in such circumstances, learned Sessions Judge was perfectly correct in relying on the evidence of CRA 1522/08 21 PW1 and if the evidence of PW1 is believed there is evidence to prove that it was the second accused who inflicted the injuries on the head of deceased Venkittakumar with MO.1 axe and accused 3 and 4 were near to the second accused and it was all the accused together who took the body and dumped it in the pit and it establishes that the murder was committed in furtherance of the common intention of all appellants. Learned Public Prosecutor also submitted that evidence of PW3 was rightly relied on by the learned Sessions Judge. It was also pointed out that Pws.2 and 3 are natural witnesses and though PW2 later turned hostile and did not support the prosecution case, her evidence prove that she had seen three persons running from the scene of occurrence while proceeding towards the CRA 1522/08 22 place from where they heard the cry and evidence of PW3 establishes that it was the accused 2 to 4 who were running away from the scene of occurrence. It was argued that there is no reason to disbelieve the evidence of PW3 especially when it was her husband Gopal who furnished Ext.P21 FI statement. Learned Public Prosecutor also argued that there is no reason to disbelieve the evidence of PW16 that third accused called him and disclosed that he committed the murder and that extra judicial confession was rightly relied on. Learned Public Prosecutor further argued that the evidence of PW4 Arumugham, cook of Kavitha Estate proves that deceased Venkittakumar had returned to house on the early morning of 11/8/1999 from Kambam and left the house to 10 Acre Estate by 9.45 a.m and thereafter accused CRA 1522/08 23 3 and 4 came to the house and enquired about the deceased Venkittakumar and collected information that he had gone to 10 Acre Estate and PW6 Ranganathan, the 'Kankani' had seen the deceased going towards 10 Acre Estate by about 10.30 a.m and evidence of Pws.2 and 3 establish that by 11 a.m, Venkittakumar was already murdered and therefore, the murder was in between 10.30 a.m and 11 a.m. Learned Public Prosecutor also argued that the evidence of PW33, the Magistrate who recorded Ext.P15 statement of PW25 further corroborates the prosecution case that it was accused 2 to 4 who in furtherance of their common intention committed the murder and there is no reason to interfere with the conviction or the sentence.
7. The fact that body of Venkittakumar was found inside the pit in S.R.Estate, which CRA 1522/08 24 lies 3 meters to the north of the way leading from eastern Panchayath road to Karuvakulam, on the afternoon of 11/8/1999 was not disputed. The evidence of PW37 Circle Inspector establish that after conducting the inquest and preparing Ext.P11 Inquest report, the body was sent for autopsy. Evidence of PW38 Dr.Babu, Assistant Professor of Forensic Medicine with Ext.P31 postmortem certificate conclusively establish that death of Venkittakumar was caused by the injuries sustained on his head. Those injuries are described in Ext.P31 as follows;
1. Incised wound with contused margins 13x2x0.5 - 3 cm.
Obliquely placed involving the right side of the root of nose.
The wound showed maximum depth at its back end.
2. Incised wound with contused margins 9x2x1 - 3 cm, obliquely CRA 1522/08 25 placed on the left side of the head. Its front end was 4 cm.
above the outer end of eyebrow.
Maximum depth was at its back end.
3. Incised wound with contused margins 6x3x0.5 - 3 cm. Obliquely placed on the right side of the head. Its front end was 8 cm.above the middle of eyebrow with a maximum depth at its back end.
The back end of all the above three injuries were communicating at its back end.
4. Incised wound with contused margins 8 x 3 x 0.5 - 3 cm.
obliquely placed on the right side of the head. Its front right end was 5 cm. above the outer end of eye brows.
The skull bone was cut and fractured into several pieces involving the frontal and CRA 1522/08 26 parietal regions. Dura mater seen cut irregularly. The brain was completely lacerated and stained with blood which was seen escaping out.
5. Lacerated wound 4 x 3 x 1 cm. stellate shaped on the right side of the top of head just above the parietal eminence. The scalp tissue around showed contusion. The skull bone underneath showed fissured fracture extending downwards into the middle cranial fossa. The anterior cranial fossa showed communited fracture.
Evidence of PW38 on the cause of death was not challenged. From the evidence it is absolutely clear that death of Venkittakumar was caused by the said injuries inflicted on his head. Evidence of PW38 also establish that those injuries are independently sufficient in the CRA 1522/08 27 ordinary course of nature to cause death.
8. The question is who inflicted the injuries and caused the death of Venkittakumar. Though prosecution has a case that it was the first accused who hatched a criminal conspiracy with accused 2 to 4 and in furtherance of the criminal conspiracy murdered Venkittakumar, the brother of the first accused, and the first accused caused the murder due to the reluctance of PW5 to divide the property before the marriage of deceased Venkittakumar and also due to his grievance that Venkittakumar is taking the yield of the properties, which should have been available to the first accused. Learned Sessions Judge on the evidence found that there is no evidence to uphold the criminal conspiracy. All the accused were acquitted of the charge of criminal conspiracy CRA 1522/08 28 under Section 120 B of Indian Penal Code. That finding of the learned Sessions Judge was not challenged and no appeal was filed challenging the acquittal of first accused or the acquittal of the charge on criminal conspiracy. Therefore, we are only concerned with the evidence as against accused 2 to 4 in the appeal.
9. If the evidence of PW1 is trustworthy and believable, there is sufficient evidence to prove that it was accused 2 to 4 who committed the murder in furtherance of the common intention and second accused inflicted the injuries on the head of deceased Venkittakumar using MO.1 axe. The question is whether PW1 is a trustworthy witness and if so, what portion of his evidence is believable. PW1 is not an employee of PW5 or of any other CRA 1522/08 29 estate. PW1 like PW7 claimed to be wood cutters, who used to cut trees from the estates of others, without seeking the permission of the owners of the estate. PW1 claimed from the witness box that on the morning of 11/8/1999, along with PW7, by about 7 a.m he had gone to the property of Thankappan Chettiyar which lies to the west of Mali along the way running through S.R.Estate from the western Panchayath road. He claimed that after cutting the trees along with the logs they returned to Mali and PW1 took tea from a hotel and while so he found accused 2 to 4 standing in front of the shop of Pandyan. PW1 also claimed that thereafter, along with PW7 he proceeded along the same pathway leading to Karuvakkulam, running through S.R.Estate to the property of Thankappan Chettiyar and while so proceeding, CRA 1522/08 30 they found accused 2 to 4 and the deceased standing on the side of the way within S.R.Estate. PW1 claimed that after crossing them and proceeding to a distance of 100 feet, they heard a cry calling "A=" (mother) and they immediately returned to a distance of 50 feet and from there they saw the body of Venkittakumar lying on the road. It was claimed that PW1 found accused 2 to 4 carrying the body towards northern pit and second accused inflicting injury on his head with an axe and found the body being put into the pit and being afraid they returned and proceeded towards the estate of Thankappan Chettiyar to cut the trees. PW1 claimed that after completing the work of cutting of trees, he along with PW7 and Rajendran returned along the same way and by 1 p.m he got information that a body was found CRA 1522/08 31 in that pit and he reached there by 3 p.m. PW1 also claimed that though he did not reveal this fact when police asked from the scene of occurrence after the body was found, later when Kattappana Circle Inspector (PW37) questioned him he had disclosed these facts. The evidence of PW37 with Ext.D1 portion of the statement recorded under Section 161 of Code of Criminal Procedure establish that when PW37 recorded the statement of PW1, he had no such case as narrated by him from the witness box. First of all if the evidence of PW1 is to be believed, while he was taking tea from tea shop at Mali he found accused 2 to 4 standing in front of the shop of Pandyan. The evidence of PW7 is to the effect that he took tea from the tea shop of Pandyan. PW7 has no case that accused 2 to 4 were found either inside that tea shop or in CRA 1522/08 32 front of or near that tea shop. On the other hand, PW7 only claimed that he had seen accused 2 to 4 at about 6 a.m at Mali on that day. It shows he had not seen accused 2 to 4 thereafter much less near the shop of Pandyan, as claimed by PW1. The evidence of PW7 is that he did not accompany PW1 after taking tea and he proceeded first and reached the property of Thankappan Chettiyar earlier to PW1. If that be so, evidence of PW1 from the witness box that he saw accused 2 to 4 and deceased Venkittakumar while walking along with PW7 can never be true. Portion of the statement of PW1 recorded under Section 161 of Code of Criminal Procedure supports the version of PW7 that after taking tea while PW1 was returning, PW7 was not with him. Therefore, that portion of the evidence of PW7 is also found to be not CRA 1522/08 33 true. If PW7 was accompanying PW1 and they saw accused 2 to 4 and the deceased standing on the side of the way running through S.R.Estate, PW7 would have definitely seen it and if so he would have disclosed that fact. PW7 has no other case. The evidence of PW1 is to be appreciated minutely in the light of these material contradictions. If PW1 had witnessed accused 2 to 4 and the deceased standing on the side of the way as claimed from the witness box, when his statement was recorded by PW37, PW1 would not have disclosed that he saw only accused 3 and 4 along with the deceased and while passing accused 3 and 4 and the deceased, third accused asked him whether he had seen the second accused and requested PW1 to convey the message to the accused to be there at the place if he happened to find the second accused. If CRA 1522/08 34 that is the true version, PW1 did not see the second accused standing with accused 3, 4 and the deceased. That version of PW1 to PW37 was the first version given by PW1 after the incident. It establishes that PW1 did not see the second accused along with accused 3 and 4 and the deceased, as claimed from the witness box. So evidence of PW1 on the overt act of the second accused can never be true. If PW1 had seen the second accused either carrying the body of the deceased Venkittakumar from the pathway to the northern pit or the second accused inflicting injuries on the head of Venkittakumar with MO.1 axe, he would have definitely disclosed this fact to PW37 and would not have suppressed the said facts. In such circumstances, we find it not at all safe to rely on the evidence of PW1 as against CRA 1522/08 35 the second accused.
10. If PW1 had witnessed the deceased with accused 3 and 4, after knowing that body of Venkittakumar was found in the pit, when police asked the people who gathered at the scene, whether anybody had seen the incident, PW1 would have definitely disclosed that while walking along the way he had seen the deceased and accused 3 and 4 on that morning between 10 and 10.30 a.m. The very fact that PW1 did not disclose this to PW37 and even to Rajendran, as admitted by PW1, it is clear that the case of PW1 that he had seen even accused 3 and 4 along with the deceased cannot be true. Hence it cannot be relied on. When the evidence of PW1 is appreciated in the touchstone of the conduct of an ordinary prudent man, giving due allowance to the fear expressed by PW1, we CRA 1522/08 36 find that PW1 would not have suppressed that fact if he had witnessed it, when his statement was recorded by PW37 some days after the incident. It was admitted by PW1 that his wife is an employee of the estate of PW5 and PW5 used to help her financially. In such circumstances, in the ordinary human conduct if PW1 had witnessed injuries being inflicted on Venkittakumar, the son of PW5 or he had found the deceased along with accused 3 and 4 on the morning, round about the time of his death, in the ordinary human conduct he would have disclosed it to PW5 or her relatives at least when the body was taken out from the pit. It is admitted by PW1 that before giving the statement to police, he had consulted Shaji who took him to a leader of their party and it was after discussion he furnished a statement CRA 1522/08 37 to Kattappana Circle Inspector. It was also admitted by PW1 that at that time, he had no fear. It was also admitted by PW1 that he participated in the Dharna conducted by the Action council agitating for proper investigation of this very case. If that be so, it cannot be believed that PW1 did not disclose the incident spoken to by him from the witness box, because of any fear, when his statement was recorded by PW37. In the light of the evidence on record, it is not at all safe to rely on the evidence of PW1, unless sufficiently corroborated by any other evidence. Though evidence of PW7 was partly relied on by the learned Sessions Judge to corroborate the evidence of PW1, we find that instead of corroborating the evidence of PW1, evidence of PW7 in fact contradicts his CRA 1522/08 38 evidence as stated earlier. We find no evidence corroborating any portion of the evidence of PW1 against accused 2 to 4.
11. The evidence of Pws.2 and 3 if believed would prove that they found accused 2 to 4 running away from the scene of occurrence. Though learned Sessions Judge relied on their evidence, on a proper appreciation, we find it unsafe to rely on their evidence. PW2 in fact turned hostile to the prosecution and deposed only that she had seen three persons running away from the scene and she could not identify them. When accused 2 to 4 are known to PW2 for the last several years as admitted by PW2 she would have definitely identified them. If so, it could not have been appellants 2 to 4 even if her evidence that she heard the sound and reached there and found three persons were CRA 1522/08 39 running is true. In the light of the evidence of PW3, PW2 cannot be believed at all. True, PW3 identified accused 2 to 4 and deposed that she found them running away from the scene of occurrence. The question is how far the said evidence of PW3 could be believed. PW3 is the wife of Gopal, the first informant. Gopal was the Supervisor of S.R.Estate. The evidence of PW3, if believed, is that after hearing the cry along with PW2 he rushed to the place from where it originated and she did not find anybody there. In chief examination a specific question was then put to PW3, whether she found accused 2 to 4 there. She answered in the negative. It is thereafter PW3 claimed that she found accused 2 to 4 running away from the scene. Her evidence is that they also found the leg of a person protruding from the pit and CRA 1522/08 40 the body concealed by placing dry leaves and she went to her husband Gopal who informed her that he would furnish information to the police. Ext.P21 FI statement was furnished later.Evidence of PW36 establish that he recorded Ext.P21 FI statement of Gopal who was not available for examination as he died earlier.Ext.P21 shows that first informant had no case that he was informed by his wife about the finding of a leg in the pit or accused 2 to 4 running and instead claimed that while walking along the way, he found the leg of a person protruding from the pit and he informed the owners of the estate and then reached the police station and furnished Ext.P21. If his wife had disclosed to the first informant that she found accused 2 to 4 running away from the scene, it would have been definitely disclosed CRA 1522/08 41 by the first informant to PW36 and if so, it would have been found a place in Ext.P21. The conspicuous absence of such a case in Ext.P21, shows that PW3 is not deposing the truth. On a proper analysis of the evidence of PW3, we are convinced that PW3 is not a trustworthy witness and her evidence cannot be relied on.
11. The evidence of PW16 is that third accused had earlier worked for him. One day he called him and disclosed that he murdered Venkittakumar. Learned Additional Sessions Judge unfortunately relied on the evidence of PW16 as an extra judicial confession made by third accused without proper appreciation. True, if an extra judicial confession is proved, it could definitely be the basis for conviction. But before accepting an extra judicial confession, Court must bear in mind CRA 1522/08 42 whether the accused had reason to repose faith on the person to whom the alleged extra judicial confession was made and the purpose for which the alleged extra judicial confession was made. Except the fact that third accused was allegedly worked with PW16 for about six months, evidence of PW16 does not disclose any circumstance for the third accused to call PW16 on a fine day and make an extra judicial confession. He has no case that third accused had sought any help from PW16 either to escape from the case or the place. In such circumstances, we find it not safe to rely on the artificial evidence of PW16 about the extra judicial confession. Learned Sessions Judge also relied on Ext.P15, the statement of PW25 recorded by PW33, the Judicial First Class Magistrate. The evidence of PW25 though shows CRA 1522/08 43 that he made Ext.P15 statement recorded by the Magistrate, according to PW25 it is not the true statement of fact and he made the said statement as directed by the police. Therefore, based on the evidence of PW33, the contents of Ext.P15 statement cannot be found as a statement of true facts. When PW25 did not subscribe the corrections of the statement in Ext.P15. Ext.P15 being only a statement recorded under Section 164 of Code of Criminal Procedure, could be used for contradiction and corroboration of PW25, is not a substantive evidence and based on Ext.P15, in the light of the evidence of PW25, it cannot be found that second accused made any extra judicial confession as stated therein. There is no other legal evidence connecting accused 2 to 4 with the injuries sustained by deceased CRA 1522/08 44 Venkittakumar or his death. In such circumstances, conviction of the appellants for the offence under Section 302 read with Section 34 of Indian Penal Code cannot be sustained. On the evidence it can only be found that prosecution did not succeed in establishing that in furtherance of the common intention, the appellants committed murder of deceased Venkittakumar. Hence conviction can only be set aside.
In the result, appeal is allowed.
Conviction and sentence of the appellants, accused 2 to 4 in S.C.354/2003, by Additional Sessions Judge, (Adhoc-I), Thodupuzha for the offence under Section 302 read with Section 34 of Indian Penal Code are set aside. Accused 2 to 4 are found not guilty of the offence. They are acquitted. If the appellants are not wanted CRA 1522/08 45 in any other case, they shall be released from prison forthwith.
M.SASIDHARAN NAMBIAR, JUDGE.
C.T.RAVIKUMAR, JUDGE.
uj.