Kerala High Court
Sankara Narayanan vs State Of Kerala on 24 May, 2006
Equivalent citations: 2006(3)KLT429
Author: J.B. Koshy
Bench: J.B. Koshy
JUDGMENT V.K. Bali, C.J.
1. A school going aged 13 years, daughter of Poovanchery Thekkeveettil Sankara Narayanan alias Kutty (A1) was raped and murdered by Ahmmed Koya. After this heinous crime when the deceased somehow obtained bail, A1 in conspiracy with Thazhethethil Animon alias Mohan and Mancheriyil Sankaranarayanan, A2 and A3 respectively, is said to have committed his murder. The prosecution in the trial held against the appellants named above was able to secure conviction of A1 on the basis of circumstantial evidence consisting of strong motive that actuated him to commit the crime as also recovery of the crime gun. He was thus held guilty for offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/-. He was also sentenced to undergo imprisonment for 3 years and to pay a fine of Rs. 500/-, in default to undergo imprisonment for three months under Section 201 IPC. He was further sentenced to undergo imprisonment for one year under Section 3(a) of the Arms Act and the sentences were ordered to run concurrently. His co-accused A2 and A3 were, however, acquitted of the charges under Section 302 IPC but convicted under Section 201 IPC and sentenced to undergo imprisonment for 3 years and to pay a fine of Rs. 1000/- each and in default of payment of fine they were to undergo imprisonment for six months each. The order of conviction and sentence recorded by the learned Additional District and Sessions Judge, Fast Court No. I (Ad Hoc) Manjeri dated 20th October, 2005 has been challenged by the appellants in this criminal appeal.
2. Like in other cases based upon circumstantial evidence, so also in this, the pertinent point that needs consideration is as to whether the circumstances led by the prosecution unmistakably point towards the guilt of the appellants and all the circumstances are such that no other conclusion, but for the appellants being guilty is possible. The facts leading to the question posed above need a necessary mention.
(Editor's Note : Paras 3 to 6 omitted being appreciation of evidence)
7. The other evidence in the chain of circumstances relied upon by the prosecution pertains to recovery of the dead body. The first informant P.W.1 in that connection stated before Court that he had seen the dead body on 5.7.2002. He further stated that after 12 noon A2 was also present in the place (well) from where the dead body was recovered. There does not appear to be any other evidence with regard to recovery of the dead body from the well. The first informant, however, admitted in his cross-examination that the dead body was recovered on 6.7.2002. This major discrepancy which gives lie to the recovery of the dead body on the alleged statement made by P.W.1 has been explained by the learned trial Judge as a slip of tongue. We are not prepared to accept this to be a slip of tongue. It is stated by P.W.1 that he had seen the dead body on 5.7.2002 and A2 was arrested after 12 noon and further that the dead body was recovered on 6.7.2002. P.W. 2 did not give any evidence to support the prosecution version whereas P.W.3 turned hostile and was cross-examined. The investigating officer P.W.19 admits in his evidence that A2 was arrested only on 5.7.2002 at 6 p.m. The alleged recovery of the dead body is on 6.7.2002. From this kind of discrepant evidence on material aspects pertaining to recovery of dead body supported by none other than the real brother of the deceased and not at all supported by any other recovery witness would not inspire any confidence. The mere fact that the dead body was recovered from the well in the boundary areas of the house of A1, in the facts and circumstances of the case, would not be of much significance. It may be recalled at this stage that the witness of inquest of the dead body, i.e. P.W.4 stated that the well was situated in a property which has no compound wall or fence and further that the nearby areas were full of wild growth. The investigating officer P.W.19 stated that Parammel Thotti Paramba where the well is situated is an open space. The dead body was found in the unused well in the compound of the house of the first accused. Some 150 metres on the north-east of the scene of occurrence there was the house of Vishnu Master. Some 100 metres away on the west was the house of Purameri Kunjumon and some 150 metres south-west was the house of Subramanian whereas some 150 metres on the south was the house of Padmavathi Amma and from there 25 metres on the south was the house of Ramachandran. Some 3 metres on the north of the scene of occurrence was the wild growth. The well may be in the compound of A1, but it appears to be a dry and abandoned well, where there is wild growth, and in the nearest vicinity there are houses of many other persons. In the circumstances as mentioned above, even it is assumed that dead body of Ahammed Koya was indeed found from the well belonging to the first appellant it would not be sufficient proof to connect A1 with the commission of crime, as the deceased had number of enemies. The possibility of someone else committing the murder and throwing the dead body into the well of A1 so as to involve him in the crime, cannot be ruled out.
8. The recovery of gun which appears to be the crime weapon at the instance of A1 on the basis of statement made by him besides being doubtful is wholly inadmissible in evidence. The investigating officer who alone supported the recovery of gun at the instance of A1, the other two witnesses P.Ws. 11 and 12 turning hostile, would depose that on 8.7.2002 at 14.30 hours the first accused had appeared before him and made a confessional statement. The relevant part of the said statement leading to recovery of gun when translated into English reads as follows:
Thereafter, I went for a bath. If I am to be accompanied I shall show and take out the gun.
A1 did not state that the gun, the weapon of offence, was concealed by him at a particular place known to him from where he could get it recovered. Ext. P26 contains relevant portions of the confessional statement made by A1. The same reads as follows:
Thereafter I went for a bath. If you accompany me, I shall take out and give the gun.... While going for a bath, I took with me a bucket. After returning after bath, to the house, I brought the bucket and kept in the cowshed of my house. If I am taken there, I shall take out the pestle, bucket and coil-yarn and produce it....
From the statement made by A1 under Section 27 of the Evidence Act as deposed by P.W.19 and as recorded in Ext. P26 the question that arises is as to whether the said statement can partake the characteristic of a statement under Section 27 of the Evidence Act leading to recovery of the crime gun. Mr. M.K. Damodaran, the learned Counsel appearing for the appellants on the basis of the decision of the Honourable Supreme Court in Dubai Nath Pandey v. State of Uttar Pradesh vehemently contends that the statement made by A1 cannot be said to be such which may have led to recovery of the crime gun. The Honourable Supreme Court in the said case held that evidence regarding recovery of a pistol at the instance of accused by itself cannot prove that the accused wielded it for the offence. Where the statement accompanying the discovery is vague as to who concealed the weapon, it was held that the pointing out of the weapon may only prove knowledge of the accused as to where the weapon was kept and noting more. Paragraph 15 of the judgment which is relevant reads as follows:
Were this a case of circumstantial evidence, different considerations would have prevailed because the balance of evidence after excluding the testimony of the two eyewitnesses is not of the standard required in cases dependent wholly on circumstantial evidence. Evidence of recovery of the pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon wielded it in offence. The statement accompanying the discovery is woefully vague to identify the authorship of concealment, with the result that the pointing out of the weapon may at best prove the appellant's knowledge as to where the weapon was kept. The evidence of the ballistic expert carries the proof of the charge a significant step ahead, but not near enough, because at the highest, it shows that the shot which killed Pappoo was fired from the pistol which was pointed out by the appellant. The evidence surrounding the discovery of the pistol may not be discarded as wholly untrue but it leaves a few significant questions unanswered and creates a sense of uneasiness in the mind of a criminal court, the court of conscience that it has to be: How could the appellant have an opportunity to conceal the pistol in broad daylight on a public thoroughfare? If he reloaded the pistol as a measure of self-protection, as suggested by the prosecution, why did he get rid of it so quickly by throwing it near the Hathi Park itself? And how come that the police hit upon none better than Ram Kishore (PW 4) to witness the discovery of the pistol? Ram Kishore had already deposed in seven different cases in favour of the prosecution and was evidently at the beck and call of he police.
9. Mr. Sujith Mathew Jose, learned Public Prosecutor appearing for the State on the other hand for a contrary view relied upon another judgment of the Honourable Supreme Court in State of Maharashtra v. Suresh 2000 SCC (Cri.) 2630, paragraph 26 of the judgment which is relevant and which supports the contention of the learned Public Prosecutor reads as follows:
We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.
10. We would have examined the respective contentions of the learned Counsel based upon the two decisions as mentioned above in greater details, but there may be no necessity to do so as a Division Bench of this Court in George @ Kunju v. State in Cri. Appeal No. 15 of 2003 decided on 8th September, 2005 has dealt with this controversy and observed as follows:
The decision rendered in Suresh's case (supra) was followed in David Rozario's case (supra) also. But, the decisions in Suresh's case and David Rozario's case were rendered by a Bench consisting of two judges. In Jaffer Hussain Dastgir's case (supra) and Mahahir Biswas' case (supra) the decisions were rendered by a Bench consisting of three Judges. We respectfully follow the decisions rendered by the Larger Bench and hold that unless the authorship of concealment is established, the recovery in pursuance of the information stated to have been furnished by the accused will not fall under "discovery" as envisaged under Section 27 of the Indian Evidence Act.
Before arriving at the conclusion as reproduced above, the Division Bench of this Court relied upon a number of Supreme Court decisions in Jaffer Hussein Dastagir v. State of Maharashtra , Mohamed Inayatullah v. State of Maharashtra , Bahadul v. State of Orissa , Pohalya v. State of Maharashtra , Dudh Nath Pandcy v. State of U.P. , Fr. George Cherian v. State of Kerala ILR 1989 (2) Kerala 95, Mahabir Biswas v State of W.B. (1995) 2 SCC 250 and P.P. Mundra etc. v. State of Rajasthan and Anr. etc. . We are in respectful agreement with the view expressed by the Division Bench as quoted above and thus hold that the admissible part of the statement made by A1 pursuant to which the alleged crime gun was recovered only proves that he knew that the gun was concealed from where it was taken at his instance, but on such knowledge no inference of committing the murder can be drawn. One of the primary requisites to make a recovery under Section 27 of the Evidence Act is that the authorship of concealment of articles must be proved. The inadmissible statement made by A1 leading to discovery of crime gun apart, the only statement of the investigating officer P.W. 19 in that connection cannot be taken as sacrosanct. As mentioned above, the recovery witness has not supported the prosecution case and further that no forensic expert was examined, nor any report obtained from them to prove that the cartridges recovered from the dead body of Ahammed Koya were fired from the crime gun. The prosecution has placed on record three chemical reports, Exts. P13, P14 and P15 respectively. Whereas, it may be possible to place reliance upon the chemical report Ext. P14 to hold that M.Os. in items 5, 6 and 7 were assembled to form a 12 bore SBBL firearm, it may not be possible to hold that M.Os. in item 8 are the spend cartridge cases fired with the assembled 12 bore SBBL firearm. The M.Os. concerned were examined in the Laboratory using scientific aids, which was only chemical examination as clearly mentioned in the report Ext. P13. Assuming that the gun after assembling it was test fired using a 12 bore cartridge and its firing pin impression mark was compared with that on the cartridge case in item 8 and further that individual characteristic marks were found matching and therefore even though the forensic expert was not examined nor any report was obtained it could still be possible to hold that the cartridges found from the dead body were fired from the crime gun, the basic question would be as to whether the gun was recovered pursuant to the statement made by A1. Once, the finding on that is that the statement made by A1 did not lead to any discovery, no further arguments would need any mention and therefore even if it is assumed that the prosecution has been able to prove the murder of Ahammed Koya by the firearm and that too with the crime gun, it would not be of much relevance. Before we may part with this order we would like to mention that the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra 1984 SCC (Cri.) 487 has enumerated the following conditions to be followed in a case based upon circumstantial evidence when conviction can be ordered. These conditions are as follows:
1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established,
2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
3) the circumstances should be of a conclusive nature and tendency.
4) they should exclude every possible hypothesis except the one to be proved, and
5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the test as laid down by the Honourable Supreme Court, whereas it may be possible to hold that A1 might have committed the murder of Ahammed Koya, it is not possible to hold that the circumstances led by the prosecution are consistent only with the hypothesis of his guilt or that they are all in such nature that they are not explainable on any other hypothesis except the guilt of A1.
11. There is hardly any acceptable evidence with regard to A2 and A3 concerning the offence of concealing the dead body of Ahammed Koya. In any case if A1 is entitled to acquittal even though by giving him the benefit of doubt, A2 and A3 cannot be convicted under Section 201 IPC as they had at the most lent a helping hand to A1 in the matter of concealing the dead body.
In view of the discussion as made above, we allow this appeal. The appellants would be acquitted by giving them the benefit of doubt. The order of conviction and sentence recorded by the learned Additional District and Sessions Judge, Fast Track Court No. 1, (Ad hoc) Manjeri against the appellants would be thus set aside.