Kerala High Court
State Of Kerala vs Baby Joseph on 4 February, 1991
Equivalent citations: 1992CRILJ2257
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT P.K. Shamsuddin, J.
1. This appeal is filed by the State against the order of acquittal passed by the Court of Sessions, Kottayam in Sessions Case No. 18 of 1986.
2. Respondent-accused was charged for offences punishable Under Sections 449 and 302, IPC. The court below after trial held that the prosecution has not succeeded in establishing that the accused committed the offences beyond reasonable doubt and in that view, acquitted the respondent. That is under challenge in this appeal.
3. P.W. 5 is the son of Kunjupennu alias Thressia, now deceased. On 6-11-1984, he went for his work at about 6-15 a.m. At that time, his mother and the accused were in their house at Thachapuzha bhagom in Elikulam Village. He returned at about 10-30 p.m. after work and found Kunjapennu lying dead in a room with a cut injury on her throat. The accused is of the same age as that of P.W. 5 and they were friends. The house of the accused was situated only 400 feet away from the house of deceased. On seeing his mother lying dead, P.W. 5 cried out and ran to the house of the accused and informed Georgekutty and Mathachan, brothers of accused. They informed P.W. 1, the Panchayat Member of Ward No. 1 of Elikulam Panchayat through one Kumaran. On knowing about the incident, P.W. 1 along with some others came to the scene and found Kunjupennu lying dead with a cut injury on her throat, and blood oozing out from the injury and a knife on the injury. P.W. 1 went to the Ponkunnam Police Station and gave Ext. P1 First Information Statement. P.W. 18, Circle Inspector of Police took over investigation and the body was sent for post mortem. Autopsy was conducted by P.W. 15, Assistant Professor of Forensic Medicine, Medical College Hospital, Kottayam and Ext. P 15 is the post mortem certificate. At the request of P.W. 15, P.W. 14 took samples of the accused's nail, clippings, saliva and blood. They were sealed and forwarded to the Judicial Second Class Magistrate along with Ext. P 14 list of articles. After completing investigation, P.W. 18 laid final report before the Court of Judicial Magistrate of II Class, Kanjirappally, who committed the accused to stand trial before the Sessions Court, Kottayam.
4. On the accused pleading not guilty to the charge, P.Ws. 1 to 18 were examined and Exts. P1 to P18 and M.Os. 1 to 16 were marked. The accused in his statement under Section 313, Cr. P.C., generally denied the incriminating circumstances appearing against him in the prosecution evidence. Exts. D1 to D5 were marked on his behalf.
5. That on 6-11-1984 Kunjupennu alias Thressia died as a result of cut injury on her throat admits of no doubt. Ext. P15 postmortem certificate and the evidence of P.W. 15 prove that Kunjupennu died as a result of injury No. 1, namely, a gaping incised wound 10.5 cm. long and 4.5 cm. deep horizontally placed on the left side and front of neck, the back end being 7 cm. below the left ear lobule, the front end being 3 cm. below the middle of right lower jaw. The front end of the wound showed one skin deep side cut 2 cm. long going downwards and to the right and two skin deep cuts 0.8 and 0.5 cm. long going upwards and to the right. On the left side, the sternomastoid muscle, strap muscles, the muscles of the floor of mouth, prevertebral muscles, Jugular veins and common carotid artery were found cut. On the right side the strap muscles and the muscles of the floor of mouth were found cut. The thyroid cartilage above the level of vocal cords and the oesophagus were found cut. The body of the 4th cervical vertebra showed three small superficial parallel cuts. The direction of the wound was from left to right. P.W. 15 stated that injury No. 1 was antemortem and that the death would have occurred approximately 6 hours after the last meal. He also testified that the nature of injury indicated that it cannot be self inflicted. Therefore, we hold that Kunjupennu died as a result of injury No. 1 and that the death was homicidal.
6. There is no direct evidence to establish that the accused committed murder. The prosecution relied on the following circumstances to establish that the accused alone could have committed the offence : (1) That the accused was in illicit intimacy with the deceased Kunjupennu. Before the occurrence, he was dining and sleeping in the house of the deceased. (2) About a month before the occurrence, the deceased Kunjupennu told P.W. 4, her younger sister, that the accused threatened her that he would finish her if she talked or establish any relationship with anybody. This shows that the accused was jealous and had a motive to murder Kunjupennu if she talked with others or established contact with others. (3) The murder is not for gain. No theft or robbery is committed. (4) That the deceased was last seen in the company of the accused. When P.W. 5 went for work in the morning of 6-11-1984, accused was in the house and on his return, he found Kunjupennu lying dead with a cut injury on her throat. (5) The extra judicial confession made by accused to P.W. 2 that he had finished Kunjupennu. (6) Four hair were found stuck in between the fingers of deceased and scientific analysis revealed by Ext. P 16 report and the evidence of PW 16 showed that these four hair belong to the accused. (7) The finger-print found on kerosene lamp in the house of deceased was sent for opinion of Finger-print Expert P.W. 11 and his report Ext. P9 and his evidence established that it was the finger-print of the accused; (8) Though the accused was in illicit intimacy with the deceased and slept and dined in the house of deceased and was her nearest neighbour, he did not go to the house of deceased or enquire about the occurrence; and (9) The accused was not seen in the locality from 7-11-1984 and was absconding till he was arrested on 13-11-1984.
7. In order to convict an accused based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. The circumstances should also be of a definite tendency unerringly pointing towards the guilt of the accused. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities, the crime was committed by the accused.
8. The court below held that the evidence adduced by the prosecution is not sufficient to come to the conclusion that the accused was guilty and acquitted the accused.
9. Learned Public Prosecutor contended that the finding of the court below is not correct and that evidence adduced unerringly point to the guilt of the accused and forms a complete chain to establish that the accused alone has committed the murder.
10. We shall now examine the circumstances relied on by the prosecution to bring home the guilt of the accused. P.W. 5, the son of the deceased went for work as usual at about 6-15 a.m. on 6-11-1984, the date of occurrence. At that time, his mother deceased Kunjupennu and the accused were in his house. The evidence of P.W. 5 goes to show that the accused was intimate with the deceased and used to sleep and dine in the house. This evidence was corroborated by P.W. 4 and P.W. 1. P.W. 5 returned home after the day's work around 10-30 p.m. and found his mother lying dead with a cut injury on her throat. His evidence further indicates that the accused was not in the house of the deceased, though it was the practice of the accused to dine and sleep there.
11. To prove that the accused was jealous and did not like Kunjupennu talking to or in contact with any other person, the prosecution has examined P.W. 4, younger sister of the deceased. About 30 days prior to the occurrence she spent a Sunday with Kunjupennu. P.W. 4 testifies that Kunjupennu confided to her that the accused warned her that if she (deceased) developed any intimacy or connection with anybody, he would do away with her.
12. Prosecution examined P.W. 7, father of the accused, to prove that accused was not in the habit of sleeping in his house for five or six months prior to the occurrence, and he was sleeping in the house of the deceased, that the accused saw P.W. 7 talking with Kunjupennu and that the accused confessed to P.W. 7 that he murdered Kunjupennu by cutting her throat and washed away the bad name of their family. However, he turned hostile and did not subscribe to the prosecution version is this regard. When he was confronted with his previous statements to the police evidenced by Ext. P3 and P3(a) to Ext. P3(d), he denied having stated so. On the basis of his evidence, learned counsel for the respondent argued that there is no evidence to show that the accused saw P.W. 7 in the house of deceased and infuriated by the conduct of the deceased and P.W. 7, the accused murdered her. It is true that the prosecution version relating to the presence of P.W. 7 in the house of deceased and his chatting with the deceased has not been substantiated as P.W. 7 who was examined to prove that point, turned hostile. However, prosecution has succeeded in establishing that the accused was jealous and he was not prepared to tolerate any suspicious conduct on the part of the deceased. We do not find any reason to disbelieve the evidence of P.W. 4 on this aspect.
13. The next item of evidence relied on by the prosecution to establish the case is the extra judicial confession made by the accused to P.W. 2. P.W. 2 is a rubber tapper employed by P.W. 1 for tapping rubber in his estate. He stated that after his work in the rubber estate, he used to assist P.W. 7 for collecting kuri amounts from subscribers. He stated that on 6-11-1984 also, he had gone to collect kuri amounts and while returning after collecting kuri amounts, he met P.W. 7 near the store and both of them went to the house of P.W. 7 and reached there at about 9 p.m. The accused was not there. When he was about to return, the accused came there. Accused told him that he would also accompany him and would supply drinks at his cost (Vernacular matter omitted) arrack. While going, the accused disclosed to him that he killed Kunjupennu (Vernacular matter omitted.). P.W. 2 chided him for disclosing such serious matter in a light manner. However, the accused again repeated that he was coming after finishing Kunjupennu; (Vernacular matter omitted.). They sat under a gooseberry tree near the reading room. Then also accused repeated and P.W. 2 noticed change in the facial expression of the accused. On the next day morning, Ithak called P.W. 2 and informed him of the murder of Kunjupennu. Then it struck him that what the accused told on the previous night, was true. He further stated that he revealed what the accused had told him to P.W. 1 when he went to his house in the morning of 7th for tapping. The evidence of P.W. 2 on this aspect has been corroborated by P.W. 1 who stated that P.W. 2 told him about the confession of the accused on the 7th morning.
14. Learned counsel for the respondent/ accused has challenged the evidence of P. Ws. 1 and 2 on this aspect. Learned counsel brought to our notice the evidence of P.W. 2 in cross-examination that when Ithak informed him about the death of Kunjupennu, he proceeded to her house and that though he had to pass in front of the house of P.W. 1, he did not go there or met him. He also brought to our notice the statement of P.W. 2 that he remained in the house of the deceased for two or three hours and returned. On the basis of this evidence, learned counsel for the accused argued that if P.W. 2 had remained in the house of the deceased for two or three hours, it would not have been possible for him to reveal the confession of the accused to P.W. 1 on the 7th morning, as it could not have been possible for him to tap rubber, after his return from the house of the accused. Learned counsel also submitted that there is absolutely nothing to show that P.W. 7 was conducting any kuri or that P.W. 2 was engaged by P.W. 7 for collection of chitty amounts. P.W. 7 has denied that he was conducting any kuri or that P.W. 2 was engaged by him. This statement of P.W. 7 could have been discarded as he turned hostile and betrayed anxiety to help the accused who is none other than his son. However, we are unable to place much reliance on this evidence of P.W. 2 in view of his admission that he remained in the house of the accused for two or three hours in which case it would be impossible for him to go to P.W. 1 and reveal the confession to him. Learned counsel for the accused also submitted that in Ext. P1, P.W. 1 has not stated anything about what P.W. 2 told him in regard to the confession made by the accused. Ext. P 1 First Information Statement was given at 2 a.m. on 7-11-1984 and in the circumstances, P.W. 1 would not have been able to say anything about the confession which was allegedly revealed to him only much later. However, in view of the infirmity we have already pointed, we do not propose to act upon this evidence.
15. Next circumstance relied on by the prosecution appears to us a very strong circumstance to connect the accused with the crime. Four hair were found stuck in between the fingers of the accused. These hair were; taken into custody during inquest. One long hair was sticking on the blood-stained knife, which was seen in the wound on the neck of the deceased. Similarly, blood, saliva and nail clippings were also taken from the accused by P.W. 14, Assistant Surgeon, General Hospital, Kanjirappally at the requisition of the Investigating Officer. The hair, 4 in number, stuck on the finger of the deceased and one hair stuck on the knife were forwarded to P.W. 16, the Assistant Director (Biology Division), Forensic Science Laboratory, Thiruvanthapuram along with sample hair, 15 in number, collected from the accused. Similarly, a hair found on the knife was also sent to P.W. 16 for analysis. On analysis, it was found that hair stuck in between the fingers of the deceased are similar to the hair of the accused sent as item No. 15. The conclusion drawn by P.W. 16 on analysis of the hair is contained in his report Ext. P16. Similarly, the hair stuck on the knife was also found to be similar to the hair of the accused sent as item 15.
16. The court below considered that there was likelihood of dropping of hair of the accused in the house while combing and therefore the similarity of the hair of the accused with the hairs found in between the fingers of deceased and on knife is not sufficient to draw inference that accused was the murderer. We are unable to agree with the reasoning of the learned Sessions Judge. Such an inference may be possible only if hair seen in the room were found similar to the hair of the accused on analysis. In her desparate attempt to prevent the accused from attacking her, the deceased would have caught hold of the hair of the accused and pulled and in all probabilities, in that process, the four hair found in between the fingers of deceased would have come out from the scalp of the, accused. We are unable to find out any other reason to explain this important circumstance. This circumstance, in our view, goes along way to point the accusing finger towards the accused. It is also pertinent to note that the inquest report Ext. P4 also makes mention of the presence of 4 hair in between the fingers of deceased. The circumstance that in the inquest report, the length of the 4 hair was not mentioned is not at all sufficient reason to underestimate the levidenciary value of this item of evidence. The suggestion made by the learned Sessions Judge that the investigating agency could replace any 4 hair to suit the case is uncharitable and totally unjustified. As pointed out by the Supreme Court time and again, there is no presumption that the investigating agency would perform his official duty in violation of law. The presumption is the other way around namely, that they would perform the official function in accordance with law and it is for the defence to establish that the investigating agency has acted in an illegal manner. There is not even a suggestion in the cross-examination of P.W. 18 that he replaced 4 hair to suit the case.
17. It was next contended by learned counsel for accused that the evidence on comparison of hair based on analysis is a weak form of evidence and cannot be acted upon. Learned counsel pressed into service a decision of a Division Bench of this court in Fr. George Cherian v. State of Kerala (ILR 1989 (2) Kerala 95. It was held in that decision that in the absence of a neutron activation analysis, and in the absence of corroborating evidence, the evidence is unreliable. In that case, the evidence of the analyst showed that he had used only instrumental method. The court observed that in the light of the uncertainty of the method and in view of the imperfection of the science itself, it is unsafe to rely on the report of the expert based on comparison of hair to connect the accused with the offence as there is no other evidence corroborating the evidence of expert. It is also significant to note that in that case it was from the room the hair was taken and not from the fingers of the deceased, as in the instant case.
18. P.W. 16 stated that all the hair had roots with dried sheeth on them, the tips were cut, the medula was interrupted and the average medulary index was Order 215, and the maximum width was 102 microns and the cuticular scale pattern was irregular and angular. He also stated that the four human scalp hair in item 2 were pulled out hair which were exactly similar to the 10 long hair in item 15, which are the sample scalp hair of the accused. Similarly, one hair was found stuck on the knife recovered and that also showed that it was similar to the hair collected from the accused.
19. The Supreme Court had occasion to consider the evidenciary value of examination of hair in Kanbi Karsan Jadav v. State of Gujarat AIR 1966 SC 821 : (1966 Cri LJ 605). Dealing with the question, the Supreme Court observed as follows (at page 608; of Cri LJ) :
It was argued that the finding of the hair was of no consequence and at least the Chemical Examiner was not the proper expert who could depose as to the similarity or otherwise of the hair. The writers on medical jurisprudence, however, have stated that from the microscopic examination of the hair it is possible to say whether they are of the same or of different colours or sizes and from the examination it may help in deciding where the hair come from. In Taylor's Medical Jurisprudence (1956 Edn.) Vol. I, at p. 122, some cases are given showing that hairs were identified as belonging to particular persons.
The Supreme Court acted upon the evidence furnished by the prosecution based on the presence of hair. In Maghar Singh v. State of Punjab AIR 1975 SC 1320 : (1975 Cri LJ 1102) also, the Supreme Court considered the question again and made the following observations (at page 1105; of Cri LJ) :--
Apart from this circumstantial evidence, which conclusively connects the two accused with the murder of the deceased, namely, recovery of the weapon of offence, the false explanation given by Surjit Kaur, the recovery of the clothes from the person of the accused, there is another important circumstance which almost clinches the issue and completes the link in the chain of circumstantial evidence and this is that the Kirpan recovered from the possession of the appellant Maghar Singh contained blades of hair of the deceased stuck to it and on scientific examination, the blades were found to be identical with the hair of the deceased. This, therefore, completely establishes that it was the accused Maghar Singh along who had caused the death of the deceased with the Kirpan and this circumstance is not explainable on any other hypothesis except that the accused was guilty of the offence of murder.
A Division Bench of this court had occasion to consider the question in Royson alias Paul v. State of Kerala 1990 (2) KLJ 46. In that case, this court considered Ravi Achan's case (supra) cited in support of the contention that the evidence based on comparison of hair cannot be acted upon. The Division Bench observed that though the science is having certain imperfections, at least in certain aspects, the science could be considered to have attained at least nearness to perfection. This court said : "In the text book of Criminal Investigation by John Adam and Collyer Adam, fifth edition, by Richard Leofric Jackson, at page 110, it is said that the detailed structure of the medulla and its diameter, compared with that of the hair shaft as a whole, together with the distribution and character of the pigment, the scale pattern of the cuticle and the appearance of the hair in transverse section, all provide features which, in the aggregate, enable the expert to identify any given hair with certainty. From the microscopic examination itself, it may be possible to say whether the hair are of the same or of different colours or size and from the examination it may help in deciding where the hair come from." In Ravi Achan's case (supra) the question which came up before court was whether hair analysis could be the sole basis for conviction. In the instant case, there are other items of evidence which would corroborate the evidence based on comparison of hair.
20. Though the report itself is evident, the prosecution also examined P.W. 16 giving opportunity to the accused to cross-examine him. His evidence appeared to us impressive. We are of the view that report of expert on analysis of hair is an acceptable form of evidence. In this case, the four hair found on the fingers clinches the issue.
21. The next item of evidence to connect the accused with the crime is the evidence furnished by P.Ws. 11 and 12 and the reports Exts. P8, P9, P10, P10(a), P11, P11(a) and P12. In the inquest report, vivid description has been given about the room in which the dead body was found and the way in which the dead body was lying with MO. 1 knife in the wound on the neck. Eveready Torch (with 2 cells), kerosene lamp and a mirror found in the room were taken into custody. They are M.Os. 13 to 15. They were forwarded to PW 12, finger print expert, for his opinion. P.W. 12 developed the finger print on the objects, M.Os. 13 to 15 made over to him. The finger prints found on the above articles were developed by the Departmental Photographer, P.W. 12 and photo is were taken. Ext. P10 is the photo enlargements of the finger prints taken from the kerosene lamp MO 14, Ext. PI 1 is the photo enlargement of the finger print of the accused taken from the finger print slip (Ext. P12) forwarded to the finger print expert by the investigating officer. Ext. P10(a) and P11(a) are the negatives. PW 11 has given 3 reports of which Exts. P7 and P8 are interim reports and Ext. P9 is the elaborate expert opinion. According to PW 11, only the finger print found on the kerosene lamp MO 14 was identified as that of the accused since they are similar ridge characteristics 10 in number to that of the left thumb finger impression of the accused. As per Ext. P7, two finger prints found on the mirror belonged to the deceased whose finger prints were also taken by the expert. One finger print found on the torch and one on the kerosene lamp as per Ext. P7 report was unfit for comparison due to the insufficiency of ridge peculiarities and the remaining one finger print on the kerosene lamp was not found identical with the finger prints of the deceased and the report says that further comparison is being made and the report should be intimated later. Ext. P8 dated 16-11-1984 stated that the chance finger print developed on the kerosene lamp on comparison was seen to be identical to that of the left thumb impression of the accused. Ext. P9 dated 31-12-84 contains a detailed report as to how the expert came to the conclusion that the chance finger print developed on the kerosene lamp is the left thumb finger impression of the accused. Similarity of 10 ridge characteristics are mentioned therein. Comparison based on finger prints has been accepted as one of the most sure scientific tests to find out the source of the finger print.
22. Learned Counsel for the accused submitted that in view of the prosecution case that the accused was sleeping and dining in the house of the deceased, there is nothing strange if the fingerprint of the accused was found on the kerosene lamp. If this alone is the evidence available in the case to connect the accused, probably, we would have been hesitant to find the accused guilty based on this evidence alone in view of the circumstance pointed out by the learned Counsel for accused. The death must have taken place between 7.15 and 8 pm. According to PW 15, in view of the presence of partly digested rice and other food particles in stomach, the death would have happened within six hours of the last meal, which would indicate that the murder should have taken place around 8 pm. The presence of fingerprint at keorsene lamp would indicate the presence of the accused around that time. The Court below also considered this evidence as a circumstance indicating presence of the accused around 8 pm. and use of the lamp by him. The Court below refused to accept this item of evidence mainly on the ground that there is violation of the provisions contained in the Identification of Prisoners Act, 1920. That Act has no application to the State of Kerala. We do not find any provision in this Act or in the corresponding Act in force in the State of Kerala, which requires the permission of the Magistrate to collect materials from the accused for investigation, in a case where there is no objection from the accused. In the circumstances, the Court below was not justified in not acting upon the evidence furnished by PW 11 and Exts. P8 and P9 reports.
23. It has also come out in evidence that the accused was not seen in the locality after 10.30 pm. on 6-11-1984, till he was arrested by the police on 13-11-1984. In this context, it has to be noticed that the evidence would show that the accused had illicit intimacy with the deceased and that he was sleeping and dining in the house of deceased. Accused has not pointed out any particular reason for not going to the house of the deceased, after the occurrence came to the notice of PW 5 and others. This conduct of the accused taken along with other circumstances referred to above would unerringly lead to the inference that the accused committed the murder and that it was the accused who alone committed the murder.
24. It follows that the finding of the Court below that the accused was not guilty of the offences charged against him cannot be sustained. We find that the accused is guilty of the offence punishable under Section 302, I.P.C. We convict him for the said offence. As regards sentence, we do not consider that this is a rarest of rare cases, so as to award the capital punishment. In the circumstances, we impose a sentence of imprisonment for life on the accused for offence punishable under Section 302 of Indian Penal Code.
25. In the result, appeal is allowed, the order of acquittal passed by the Court below is set aside and the accused is convicted and sentenced as above.