Kerala High Court
Vinod @ Kollan Vinod vs State Of Kerala on 27 July, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937
CRL.A.No.1577 of 2011
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AGAINST THE JUDGMENT IN SC 176/2009 of ADDITIONAL SESSIONS
COURT (SPECIAL), KOTTAYAM DATED 27-07-2011
APPELLANT/ACCUSED:
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VINOD @ KOLLAN VINOD,
S/O. THANKAPPAN MESTHIRI, MAILADUMPARA HOUSE,
CHERUVALLI ESTATE, 5TH DIVISION,
ERUMELY SOUTH VILLAGE.
BY ADV. SRI.SONY VINCENT (STATE BRIEF)
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE C.I. OF POLICE,
MANIMALA THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY SRI. K.K. RAJEEV, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN &
RAJA VIJAYARAGHAVAN V., JJ.
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Crl. Appeal No. 1577 of 2011
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Dated this the 12th day of January, 2016
J U D G M E N T
P.Bhavadasan, J.
The Onam of 2003 did not turn out to be a happy and pleasant occasion for the family members of deceased Chandran and Saji, who met with untimely death allegedly at the hands of the accused.
2. Now on to the facts in detail.
The incident is said to have taken place on 09.09.2003 at about 10.30 p.m.. PW1, the brother of the deceased Chandran, while at home, was informed by his brother Kumar at about 10.30 p.m. on the said day that Chandran was lying injured in the plantation nearby. PW1 immediately called his brother Poovayya and passed on the information. They reached the place of occurrence Crl. Appeal No.1577/2011 2 and found Chandran and his friend Saji covered with blood on their face lying on the ground. It appeared to them that some heavy weapon has been used for inflicting the injuries. PW1 immediately asked his brother to fetch the estate ambulance and in that ambulance, Chandran and Saji were taken to Kanjirappally Taluk Head Quarters Hospital. On examination, the Doctor pronounced Chandran dead and Saji was advised to be taken to Kottayam Medical College Hospital for better management. The ambulance which brought the injured to the Taluk Hospital was used to take Saji to the Kottayam Medical College Hospital. He was accompanied by his father and brother.
3. PW1, on 10.09.2003, laid Ext.P1 First Information Statement. According to his information, on the day of incident, the deceased Chandran and Saji had taken drinks along with others and after some merry making, they slept near the temple. PW1 at the time of Crl. Appeal No.1577/2011 3 laying Ext.P1 First Information Statement did not suspect anybody. PW37 recorded Ext.P1 First Information Statement furnished by PW1 and registered Crime No. 125/2003 as per Ext.P1(a), First Information Report. Investigation was taken over by PW38, the Circle Inspector of Police. On 10.09.2003, he took up investigation and on that day, he went to the Kanjirappally Government Hospital and conducted inquest over the body of Chandran and prepared Ext.P8 report. He also seized the clothes found on the body of late Chandran. On 10.09.2003 at about 2.00 p.m, he visited the place of incident and prepared Ext.P7 scene mahazar. He seized the articles found at the place of incident. It so happened that within two days of being admitted in the hospital, Saji also breathed his last and therefore on 12.09.2003, at 10 a.m., PW38 went to the Medical College Hospital at Kottayam and conducted inquest over the body of Saji and prepared Ext.P9 report. Autopsy of the body of Chandran Crl. Appeal No.1577/2011 4 and Saji was conducted by PW29 who furnished Exts.P17 and P18 reports. After preparing the inquest report, he also seized the clothes found on the body of the deceased. He, thereafter filed Ext.P28 report incorporating Section 302 in place of Section 307 IPC.
4. It may be mentioned here that the prosecution has an allegation that the accused tried to commit suicide and for that incident, Crime No. 127/2003 was also registered against him. The investigation of that too was entrusted to PW38. He prepared Ext.P20 scene mahazar in that case. Thereafter, he had the accused examined by Dr.Saibunnisa Beevi, a Psychiatrist attached to the Kottayam Medical College to ascertain the state of mind of the accused for questioning. After getting a positive reply, the accused was questioned and on the basis of the confession statement said to have been given by him, M.O.1 was seized as per Ext.P4 mahazar which is said to be the weapon used for attack. Ext.P29 is the Crl. Appeal No.1577/2011 5 confession portion of the statement which led to the recovery. On 21.10.2003, PW38 filed a report before court incorporating the name of the accused. That report is Ext.P30. On 24.10.2003, PW38, the Investigating Officer seized M.Os 6 and 7, the clothes alleged to have been worn by the accused at the time of incident as per Ext.P21 mahazar. He recorded statements of witnesses and had the clothes seized during investigation sent for chemical examination. Ext.P33 is the FSL report. PW39 completed the investigation and laid charge before court.
5. The court before which the final report was laid, took cognizance of the offence and finding the offence to be exclusively triable by a Court of Sessions, committed the case to Sessions Court, Kottayam under Section 209 of Cr.P.C. after following the necessary procedures. The said court made over the case to Additional Sessions Court (Special), Kottayam, for trial and disposal.
Crl. Appeal No.1577/2011 6
6. The latter court, on receipt of records and on appearance of accused before the said court, framed charge for the offence punishable under Section 302 of Indian Penal Code.
7. To the charge, accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 39 and had Exts.P1 to P34(a) marked. The defence on its side had Exts.D1 to D4 marked. M.Os 1 to 7 were got identified and marked.
8. After the close of prosecution evidence, the accused was questioned under Section 313 Cr.P.C with regard to the incriminating circumstances brought out in evidence against him. He denied the circumstances. He also added that from 1997 onwards he has been under treatment for mental illness. He was given to understand that his ailment is incurable but he could keep it under control on medication. He further added that on 13.08.2003 and 14.08.2003, he was called to the Police Crl. Appeal No.1577/2011 7 Station and threatened and coerced to confess regarding his involvement in the incident. That upset him and he was not able to recollect what happened thereafter. However, he said that he had to undergo treatment for mental illness for about one month in the Medical College Hospital. He denied having committed any act which would constitute an offence and maintained that he is innocent.
9. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence.
10. The court below mainly based on the four circumstances namely, (1) the extra judicial confession spoken to by PWs 19, 20, 21 and 33, (2) the recovery of M.O.1 based on the alleged confession statement given by the accused, (3) the motive proved through the evidence of PWs 4, 7, 8, 9 and 21, and (4) the presence of blood stains on the clothes of the accused, which he alleged to Crl. Appeal No.1577/2011 8 have been worn at the time of incident, came to the conclusion that the above circumstances are clinching enough to lead to the irresistible conclusion that the accused was the perpetrator of the crime and proved circumstances were inconsistent with the innocence of the accused and held him guilty. He was therefore convicted and sentenced to undergo imprisonment for life and to pay a fine of 10,000/- with a default clause of one year rigorous imprisonment.
11. On the counsel, who filed the appeal, relinquishing the vakalath, Adv.Sony Vincent was appointed as State Brief by this Court to defend the accused.
12. The learned counsel in his well prepared and well presented arguments criticized the findings of the court below on several grounds. The learned counsel went on to point out that the case is built on circumstantial evidence and the principles with reference Crl. Appeal No.1577/2011 9 to the case based on circumstantial evidence are well settled. If those principles are applied, it could be easily seen that the case does not satisfy the requirements of law. Attacking the extra judicial confession on which considerable reliance is placed on by the court below, the learned counsel pointed out that the extra judicial confession is alleged to have been spoken to by PWs 19, 20, 21 and 33. Among them, the learned counsel pointed out that PWs 19 and 20 have no case that extra judicial confession was made to them. What they say is that the accused was seen proclaiming to the public who had gathered around him that he had committed the offence. That is insufficient to qualify for an extra judicial confession as understood in law. As far as PW21 is concerned, according to the learned counsel, his evidence is vague and ambiguous and that also does not constitute an extra judicial confession satisfying the requirements of law. The learned counsel then pointed out that as far as Crl. Appeal No.1577/2011 10 PW33 is concerned, the psychiatrist who had treated the accused during the relevant time had sent two letters to the Investigating Officer namely, Exts.23 and 24 contents of which court below treated as extra judicial confession said to have been made by the accused to the witness concerned. The learned counsel pointed out that those two letters are totally inadmissible in evidence being hit by Section 161 of the Cr.P.C.. It is also contended that even assuming that the letters can be looked into, it is clear that the extra judicial confession said to have been made by the accused is in the presence of the Investigating Officer and that also vitiates the so called extra judicial confession.
13. The learned counsel then went on to point out that the motive alleged has also not been proved. It is true that PWs 4, 7, 8, 9 and 21 say about an incident in which the daughter of PW11 was involved and it is stated that the accused had teased the female child of PW11 Crl. Appeal No.1577/2011 11 regarding which a complaint was filed. There was a political colour to the whole issue. The persons were threatened that the BJP sympathizers would go over to their house and PWs 4, 7, 8 and 9, who are sympathizers of the DYFI retorted that they were prepared to meet the challenge. The learned counsel pointed out that the so called motive relied on by the court below stands exploded by the evidence of PWs 11 and 12, who are the father and grandmother of the child who is alleged to have been teased by the accused. They deny any such incident as alleged and they also deny the involvement of their child in any incident.
14. The learned counsel then went on to point out that the reliance placed on the presence of blood stains on the clothes alleged to have been worn by the accused at the relevant time too cannot constitute an incriminating circumstance for the simple reason that the blood group has not been determined and it is not based Crl. Appeal No.1577/2011 12 on the confession statement of the accused that the clothes are seized, but they were simply handed over by the brother of the accused. It is not known as to how the brother was aware of the fact that those were the clothes which had been worn by the accused at the relevant time. It is therefore contended that little credence can be given to the seizure of the clothes alleged to have been worn by the accused and much less any credence to the so called presence of blood stains on those clothes. If these items of evidence are eschewed, there is nothing else to connect the accused with crime in question.
15. The learned counsel went on to point out that the court below has erred in law and on facts in holding the accused guilty without applying the relevant principles of law and the relevant test applicable to the appreciation of case based on circumstantial evidence and the acceptance of extra judicial confession. The learned counsel went on to point out that the conviction Crl. Appeal No.1577/2011 13 and sentence are clearly unsustainable in law.
16. Per contra the learned Public Prosecutor pointed out that the court below has meticulously analysed the evidence in detail and has found four circumstances clinching enough leading to the irresistible conclusion that it was the accused who had committed the offence. They are (1) the previous enmity spoken to by PWs 4, 7, 8, 9 and 21 which constitutes the motive for the attack, (2) extra judicial confession spoken to by 19, 20, 21 and 33, (3) the recovery of M.O1 at the instance of the accused and (4) Ext.P16, the FSL report which disclosed that blood stains were found in the clothes seized by PW38 alleged to have been worn by the accused at the relevant time. In support of his contention that the extra judicial confession is acceptable, reliance is placed on the decision reported in Kulvinder Singh v. State of Haryana (2011 (2) KLT SN 63 (C.No.83)).
17. It cannot be disputed that the case is Crl. Appeal No.1577/2011 14 based on circumstantial evidence. To recollect the prosecution story, Chandran and Saji were found lying in pools of blood by PW1 and others and they were carried to the hospital. They were initially taken to the Government Hospital at Kanjirappally. On reaching the hospital, Chandran was pronounced dead and Saji was advised to be taken to Medical College Hospital for better management.
18. The principles regarding the determination of a case based on circumstantial evidence are well settled. It is unnecessary to refer to the plethora of decisions on this aspect except to refer to the decision reported in Prakash v. State of Rajasthan (AIR 2013 SC 1474), where the 'Panchsheel' theory was reiterated, the relevant portion reads as follows:
"4. In the case on hand, the prosecution case rests solely on the basis of circumstantial evidence. It was contended by the learned amicus curiae for the appellants that in the absence of Crl. Appeal No.1577/2011 15 direct evidence, the slightest of a discrepancy, depicting the possibility of two views would exculpate the accused of guilt, on the basis of benefit of doubt. Before considering the materials placed by the prosecution and the defence, let us analyse the legal position as declared by this Court on the standard of proof required for recording a conviction on the basis of circumstantial evidence.In a leading decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : (AIR 1984 SC 1622), this Court elaborately considered the standard of proof required for recording a conviction on the basis of circumstantial evidence and laid down the golden principles of standard of proof required in a case sought to be established on the basis of circumstantial evidence which are as follows: (Paras 152 and 153 of AIR) "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully Crl. Appeal No.1577/2011 16 established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the observations were made: [SCC para 19, p. 807) : (Para 19 of AIR) "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (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 Crl. Appeal No.1577/2011 17 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
5. Though learned counsel for the appellants referred other decisions, since the above principles have been followed in the subsequent decisions, we feel that there is no need to deal with the same elaborately. With the above "five golden principles", let us consider the case of the prosecution and find out whether it satisfies all the tests."
Crl. Appeal No.1577/2011 18
19. While the accused is entitled to the benefit of doubt, the doubt that is created should be a reasonable one. A reasonable doubt is a doubt which is entertained by a reasonable man. Fleeting imaginations amounting to hunches cannot pass the muster of reasonable doubt. That must arise from the evidence adduced in the case.
20. Before considering the evidence on record, it will be useful to ascertain the law relating to extra judicial confession. Though it has been termed as a weak piece of evidence in some of the decisions, the courts are cautioned not to start with the presumption that it is a weak piece of evidence and then go on to consider the case on merits. On the other hand, its veracity will have to be tested with reference to the words used by the accused, the witness who speak about the extra judicial confession, their credibility, the circumstance under which it was made and the person to whom it was made. In the decision reported in Sahadevan and another v. State Crl. Appeal No.1577/2011 19 of Tamil Nadu (AIR 2012 SC 2435), the principles were settled as follows:
"12.............. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence.
Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.
13. Now, we may examine some judgments of this Court dealing with this aspect.
14. In Balwinder Singh v. State of Punjab Crl. Appeal No.1577/2011 20 [1995 Supp (4) SCC 259 : (AIR 1996 SC
607)], this Court stated the principle that an extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-
judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.
15. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158 : (AIR 1998 SC 107)], the Court held that it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.
16. Again in Kavita v. State of T.N. [(1998) 6 SCC 108 : (AIR 1998 SC 2473)], the Court stated the dictum that there is no doubt that conviction can be based on extra-judicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made.
Crl. Appeal No.1577/2011 21
17. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : (AIR 2003 SC 3601)] stated the principle that an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.
The Court, further expressed the view that such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.
18. In the case of Aloke Nath Dutta v.
State of W.B. [(2007) 12 SCC 230], the Crl. Appeal No.1577/2011 22 Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed:
"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration. XXX XXX XXX
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
Crl. Appeal No.1577/2011 23
19. Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604 : (AIR 2011 SC (Cri) 99)] held that :-
"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore (AIR 1971 SC 1871), Mulk Raj v. State of U.P. (AIR 1959 SC 902), Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 and 42 : (AIR 2006 SC
653)), Shiva Karam Payaswami Tewari v.
State of Maharashtra (AIR 2009 SC 1692) and Mohd. Azad v. State of W.B. (AIR 2009 SC 1307)].
30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or Crl. Appeal No.1577/2011 24 promise as contemplated by Section 24 of the Evidence Act, 1872."
20. Dealing with the situation of retraction from the extrajudicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740 : (2009 AIR SCW 3391)], held as under :
"It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."
21. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the Crl. Appeal No.1577/2011 25 crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754 : (AIR 2011 SC 2283)] and Pancho v. State of Haryana [(2011) 10 SCC 165 : (AIR 2012 SC 523)].
22. Upon a proper analysis of the above- referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.
The Principles
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care Crl. Appeal No.1577/2011 26 and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
21. The question as to the acceptability of an extra judicial confession has been the subject matter of considerable debate. If it is found to be cogent, convincing and inspires confidence in the mind of court, the decisions are sufficient to find the guilt of the accused. (Reference was being made to Thimma v. The State of Crl. Appeal No.1577/2011 27 Mysore (AIR 1971 SC 1871), Sivakumar v. State by Inspector of Police (AIR 2006 SC 653), Sahadevan and Another v. State of Tamil Nadu (AIR 2012 SC 2435)).
22. As regards the extra judicial confession, it has been held in the decisions reported in C.K. Raveendran v. State of Kerala (AIR 2000 SC 369) and Sk. Yusuf v. State of W.B. (AIR 2011 SC 2283) that it is advisable that the exact words in which the extra judicial confession is made by accused is spoken to by the witnesses, at any rate, it should be as close as possible to the words used by the accused making the extra judicial confession. The decisions also say that apart from the words used by the accused, the credibility of the witnesses also play significant role in accepting the extra judicial confession.
23. Having thus understood the principles regarding the determination of a case based on circumstantial evidence and also having understood the Crl. Appeal No.1577/2011 28 law regarding extra judicial confession, an attempt shall now be made to ascertain whether the findings of the court below are justified.
24. That Chandran and Saji met with homicidal death is a matter not in dispute. The evidence of PW29, who conducted autopsy over the body of Chandran and Saji and who furnished Exts.P17 ad P18 reports, leaves one in no doubt that both the deceased died as a result of inflicted injuries and it is a clear case of homicide. In fact, there is no much dispute regarding this aspect at all.
25. The next question that arises for consideration is whether the prosecution has established that it was the accused who had inflicted the injuries which resulted in the death of Chandran and Saji. One may notice here that the prosecution relies on four items of evidence to prove its case against the accused. They are (1) the motive, (2) extra judicial confession, (3) the recovery based on Section 27 of the Indian Evidence Act Crl. Appeal No.1577/2011 29 and (4) the presence of blood stains on the clothes alleged to have been worn by the accused at the relevant time.
26. It is not the number of circumstances that matters, but the quality of the evidence proving the circumstances in determining the guilt of the accused. If the above four circumstances are proved beyond reasonable doubt, then the finding of the court below is fully justified.
27. Coming to the motive first, the motive is spoken to by PWs 4, 7, 8, 9 and 21. The prosecution case seems to be that two days prior to the date of incident, the accused had teased the daughter of PW11, for which a complaint was laid before the Police. That created some political tension in the area and PWs 4, 7, 8 and 9 were given to understand that RSS people will be coming to question about the conduct of laying the complaint. PWs 4, 7, 8 and 9 seemed to have replied that they would be prepared to meet any such contingency. PWs 4, 7, 8 Crl. Appeal No.1577/2011 30 and 9 then go on to depose that the two deceased persons along with them had gone to the house of Vinod, the accused and questioned him regarding the above conduct. The prosecution alleges that, that was not to the liking of Vinod and that constituted the motive for the attack.
28. PW21, the Assistant Sub Inspector attached to Erumeli Police Station does speak about a complaint having been laid regarding the incident and he also says that a mediation talk was held and the matter was settled between the parties. But his evidence also discloses that there is no entry in any of the records regarding the complaint alleged to have been preferred regarding the incident.
29. The prosecution met its waterloo in this regard at the hands of PWs 11 and 12. PW11 is the father of the child and PW12 is the grandmother of the child who is alleged to have been the victim at the hands of the Crl. Appeal No.1577/2011 31 accused. They denied any such incident as alleged had taken place and the involvement of their child in any such incident. Therefore, the prosecution theory of motive stands discredited to a great extent by the evidence of PWs 11 and 12.
30. Even assuming that the evidence of PWs 11 and 12 cannot be accepted in toto in this regard, yet another aspect stares at the face of the prosecution. Even going by the prosecution case, the deceased were accompanied to the house of Vinod by PWs 4, 7, 8 and 9 and few others. There is nothing in the evidence of these witnesses namely, PWs 4, 7, 8 and 9 indicating that Vinod had displayed an agitated behaviour at that point of time. Further, it escapes one's understanding why Vinod, the accused had picked and chosen the deceased Chandran and Saji from among the persons who had gone to his house to question his act. There is no explanation offered by the prosecution. Therefore, it could not be said that Crl. Appeal No.1577/2011 32 the motive alleged by the prosecution stands proved beyond reasonable doubt. Even assuming that the motive may not have much of a significance or relevance if the other three circumstances are established, one may now attempt to ascertain whether the other items of evidence are acceptable.
31. The main and in fact may be the most important item of evidence is the extra judicial confession said to have been made by the accused. Four witnesses speak about the same. They are PWs 19, 20, 21 and 33. As the court below has found their evidence to be acceptable and has mainly based its conclusion on their evidence and the documentary evidence namely, Exts.P23 and P24, it becomes therefore necessary to discuss their evidence in some detail. The prosecution case is that on 09.09.2003 the incident had taken place and on 15.09.2003, the accused has slit his hand and he began to bleed profusely.
Crl. Appeal No.1577/2011 33
32. PW19 is a driver by profession. He plies a jeep bearing registration No. KL-3L-2588. On 15.09.2003, according to him, he was hired to go to the hospital. On the way, a person dismounted from the auto and mounted his jeep. He was taken to the hospital at Erumeli. He was bleeding profusely. On the way, the vehicle had to be stopped at Kanakappuram since the accused wanted to have water. Seeing the bleeding victim, people gathered around the jeep. PW19 says that the accused proclaimed to the public that he was Kollan Vinod and that he had done away with two persons at Cheruvalli. PW19 would say that he was thereafter taken to the Erumeli Hospital. From there, he was taken to the hospital at Kanjirappally and then to the Kottayam Medical College Hospital. There were three other persons in the jeep at the relevant time.
33. The acceptability of the extra judicial confession spoken to by PW19 will be discussed later.
34. The next is the evidence of PW20. He is an Crl. Appeal No.1577/2011 34 employee of the Cheruvalli estate. On Friday, Saturday and Sunday, he does the duty of a Watcher also. He is familiar with the deceased. He also says that Krishnankutty, the brother of the accused and the wife of Krishnankutty, Ramani are staying near his house. His evidence is to the effect that the accused is residing in the 5th division which is 2 Kms away from his house. There is a short cut through the estate to reach the house of the accused in the 5th division. On 15.09.2003, while he was at home, by about 4.30p.m., the accused came in an auto bleeding from his hand. The auto driver informed Krishnankutty, the brother of the accused about the same. Ramani, the wife of Krishnankutty informed Madhu about the incident. Madhu is a neighbour of PW20. When PW20 and others went near the Auto, they saw the accused sitting in the auto bleeding from his hand. Blood had spilled in the vehicle also. PW20 would say that Ramani urged that he be taken to the hospital. PW20 would say Crl. Appeal No.1577/2011 35 that at that time, a Police jeep had come to the place. PW20 further says that when asked for the reason for slitting his hand, the accused said that he wanted to commit suicide. PW20 then says that they fetched a jeep from Mukkada. As the jeep came along, they mounted the jeep from the auto and went to the Hospital at Erumeli. On the way, the jeep was stopped at a place called Kanakappalam. The jeep stopped near a waiting shed and a shop. Since the accused asked for water, the jeep was stopped. According to PW20, one or two persons had gathered near the jeep and the accused is said to have proclaimed that he is Kollan Vinod and also that a murder has taken place in the Cheruvalli estate and he was the murderer. PW20 then says that the accused was taken to the Government Hospital at Erumeli and from there to the Hospital at Kanjirappally. PW20 says that at the relevant time, the accused was drunk.
35. PW21 is another witness who speaks about Crl. Appeal No.1577/2011 36 the extra judicial confession said to have been made by the accused. He was at the relevant time functioning as the Assistant Sub Inspector of Erumeli Police Station. According to him, there was telephonic complaint received in the station regarding the misbehaviour towards the daughter of PW11. PW11 resides close to the house of the accused. On 07.09.2003, according to PW21, both the parties were called to the station and an amicable settlement was arrived at and the accused was cautioned. On 15.09.2003 at about 5.00 p.m., the Police Station received an information that the accused was creating a scene at the Community Health Centre. PW21 says that he and one PC Jessy reached the hospital soon. When they saw the accused, he was found to have slit his left hand and the wound was tied with a towel. When he began to create scenes in the hospital, as per the instruction given by the Doctor, he was taken to the Kanjirappally Taluk Head Quarters Hospital. On the way, Crl. Appeal No.1577/2011 37 PW21 would say that the accused stated that he had killed two persons.
36. The next witness who speaks about the extra judicial confession is PW33. PW33 is the Psychiatrist attached to the Medical College Hospital at Kottayam under whose treatment the accused was at the relevant time. He was admitted to the hospital on 20.09.2003 and discharged on 21.10.2003. Through this witness, two documents namely, Exts.P23 and P24, two letters alleged to have been written by the witness to the Investigating Officer were marked. PW33 says that in the reply so furnished by her, she makes mention of the interview she had with the accused and that he confessed that he had committed the murder and he repents over the same.
37. These four items of extra judicial confession found favour with the court below. The question is, how far the finding of the court below is justified in this regard. The law relating to extra judicial Crl. Appeal No.1577/2011 38 confession has already been referred to. If the evidence of these witnesses namely PWs 19, 20, 21 and 33 are found to be reliable and creditworthy, then there is no justification to reject their evidence and hold against the extra judicial confession. Though one does not start with the presumption that the extra judicial confession is a weak piece of evidence, its acceptability is circumscribed by several factors. It should be convincing enough and the decisions go on to hold that the extra judicial confession could be spoken to by the witnesses as nearly as in the words stated by the accused, if not the exact words. (See the decisions reported in C.K. Raveendran v. State of Kerala (AIR 2000 SC 369) and Sk. Yusuf v. State of W.B. (AIR 2011 SC 2283)).
38. Coming to the extra judicial confession spoken to by PWs 19 and 20, admittedly as going by their evidence, the extra judicial confession was not made to them. There is inconsistency in the evidence of PWs 19 Crl. Appeal No.1577/2011 39 and 20 in this regard. PW19 was the driver of the jeep in which the accused was taken to the hospital and PW20 was accompanying them. PW19 says that when the accused sought for water, the jeep was stopped and a lot of people had gathered around the jeep. On the other hand, PW20 would say that when the jeep was brought to a halt, only one or two persons had gathered near the jeep. According to PW19, the accused is said to have proclaimed that he is Kollan Vinod and that he had done away with two persons at Cheruvalli. PW20 on the other hand would say as follows:
"
.
estate-, estate-,
.
".
39. It must at once be noticed that the narration of the so called extra judicial confession said to have been made by the accused differs between PW19 Crl. Appeal No.1577/2011 40 and PW20. Apart from the fact that it is a general proclamation made to the public, the words used by the accused are also spoken differently by these two witnesses.
40. There is yet another fact which cannot be lost sight of. The accused had slit his hand and he was profusely bleeding. The prosecution evidence itself is to the effect that he was drunk at the relevant time. The accused had a case that he was being continuously harassed by the Police. It was under these circumstances the alleged extra judicial confession is said to have been made. As already noticed, a general proclamation addressed to none in particular cannot usually qualify to become an extra judicial confession as per the decision reported in Jadumani Khanda v. State ( 1993 Cri LJ 2701) wherein it was held as follows:
"6. ........ We cannot consider this as an extra judicial confession before P.W.2, because it is well settled that the confession Crl. Appeal No.1577/2011 41 must be addressed to somebody and not the way one goes on shouting in the street that he/she had killed some one. No reliance can be put on the evidence of P.W.2 which has been so held by the learned Sessions Judge and the finding being erroneous cannot be sustained.........
7. ......... Considering the evidence of P.Ws 1 and 5 that the appellant did not make any extra judicial confession before any of the two witnesses, we are of the view that his confession before an assembly of the villagers which was called solely for the purpose of confronting the appellant as to whether he had killed Bayani cannot be considered to be a confession voluntarily made. There is no evidence from the side of the prosecution that at any particular point of time, the accused voluntarily confessed either before any person or an assembly of persons. Therefore the extra judicial confession as relied on by the learned Sessions Judge as one of the corner stones of the prosecution case cannot be accepted".
41. The fact that when the accused was being taken to the hospital he was in an agitated mood also Crl. Appeal No.1577/2011 42 cannot be lost sight of at this moment. One may recollect the prosecution case that the incident occurred on 09.09.2003 and the incident of slitting the hand occurred on 15.09.2003 and the accused was arrested on 23.09.2003. The alleged extra judicial confession is said to have been made on 15.09.2003. In the light of the fact that a general proclamation cannot qualify as an extra judicial confession and in the light of the difference in words used, which is spoken to by PWs 19 and 20, it becomes difficult to accept the extra judicial confession spoken to by PWs 19 and 20 as creditworthy and inspiring confidence in the mind of court. It is significant to notice that neither PW19 nor PW20 has a case that the extra judicial confession was made to them. They are uniform in their version that it was a general statement made by the accused to the public.
42. Coming to the evidence of PW21, his version is altogether a different one. He says that on Crl. Appeal No.1577/2011 43 15.09.2003, on getting information about the commotion created by the accused in the Community Health Centre, he and his colleague went to the hospital to see the accused. According to PW21, when the accused created a scene at the hospital, as per the instructions of the Doctor, accused was taken to Taluk Head Quarters Hospital, Kanjirapally. PW21 would say that he and the relatives of accused had accompanied accused to the Kanjirapally hospital.
43. One may here notice that neither PW19 nor PW20 has a case that PW21 accompanied the accused to any of the hospitals. They do not speak about the presence of Police Officer at all during the relevant time. In the words of PW21, the accused is said to have stated as follows:
" 2
".
44. The declaration during journey is not Crl. Appeal No.1577/2011 44 spoken to by PW19 or PW20 and in this regard the evidence of PW21 stands in isolation. If, as a matter of fact, what PW21 says is true, then, obviously, that must belie the version of PW19 and PW20. But they have no such case that on the way to hospital, accused had made any declaration of his guilt. This inconsistency in the evidence of PWs 19, 20 and 21 makes the evidence of PW21 extremely vulnerable. It could not be said that it is one which can be accepted in evidence.
45. Coming to the evidence of PW33, she was the Doctor attending to the accused while he was under
treatment in the hospital from 20.09.2003 to 21.10.2003. One cannot omit to notice that the accused was in the hospital for nearly a month labouring under mental illness. The evidence of PW33 is to the effect that she had sent two replies to the queries made by PW38 in the form of Exts.P23 and P24 wherein she mentioned about the extra judicial confession said to have been made by the Crl. Appeal No.1577/2011 45 accused.
46. It is difficult to understand how Exts.P23 and P24 could have been marked at all by the court below and reliance could have been placed on those documents. The very evidence of PW33 is to the effect that those were replies given to the Investigating Officer, which means that it was a statement made by a witness to the Investigating Officer during the course of investigation. It is squarely hit by Section 161 of Cr.P.C and they cannot be taken aid as evidence of extra judicial confession said to have been made by the accused. See the decision in Kali Ram vs. State of H.P (AIR 1973 SC 2773) wherein it was held as follows:
"17A. The last piece of evidence upon which the High Court has maintained the conviction of the accused consists of the confession of the accused contained in letter PEEE sent by Sahi Ram (PW 4) to the Station House Officer Renuka. The first question which arises for consideration in respect of letter PEEE is whether it is admissible in evidence. Crl. Appeal No.1577/2011 46 Section 162 of the Code of Criminal Procedure reads as under:
"162. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the Person making it; nor shall any such statement or any record thereof. whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court. by the prosecution to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 and when any part of such statement is so used, any Dart thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. Crl. Appeal No.1577/2011 47 (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32. Clause (1) of the Indian Evidence Act, 1872, or to affect the provisions of Section 27 of that Act."
Bare perusal of the provision reproduced above makes it plain that the statement made by any person to a police officer in the course of an investigation cannot be used for any purpose except for the purpose of contradicting a witness, as mentioned in the proviso to sub- section (1), or for the purposes mentioned in sub-section (2) with which we are not concerned in the present case. The prohibition contained in the section relates to all statements made during the course of an investigation. Letter PEEE which was addressed by Sahi Ram to Station House Officer was in the nature of narration of what, according to Sahi Ram, he had been told by the accused. Such a letter, in our opinion, would constitute statement for the purpose of Section 162 of the Code of Criminal Procedure. The prohibition relating to the use of a statement made to a police officer during the course of an investigation cannot be set at naught by the Crl. Appeal No.1577/2011 48 police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in Section 162 the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in section 162 by the investigating officer obtaining a written statement of a person instead of the investigating officer himself recording that statement".
47. If Exts.P23 and P24 are inadmissible in evidence, then the value of extra judicial confession said to have been made by the accused vanishes. Result is that the reasons given by the court below for accepting the evidence of PWs 19, 20, 21 and 33 to accept the extra judicial confession said to have been made by the accused Crl. Appeal No.1577/2011 49 cannot stand legal scrutiny. It fails to meet the standards set down in law as per the precedents. We are unable to accept that this is a crucial item of evidence.
48. Next comes to the recovery of M.O.1. M.O.1 is said to be the weapon alleged to have been used by the accused to do away with Chandran and Saji. PW38, the Investigating Officer, claims that it was based on the confession statement said to have been made by the accused that M.O.1 was recovered from behind the house of Krishnankutty, brother of accused.
49. One may recollect here the evidence of PW19 to the effect that the house of Krishnankutty is nearly 2 Kms away from the place of incident. The incident occurred, according to prosecution, at about 10.30 p.m on 09.09.2003. The prosecution case is that thereafter the accused carried the weapon with him and covered 2 Kms to reach his brother's house and threw the weapon into the bush behind the residence of his brother. Crl. Appeal No.1577/2011 50 Even assuming that is probable, the question is whether the so called recovery based on the confession statement inspires confidence in the mind of court. The relevant portion of the confession statement which lead to the recovery reads as follows:
"
( 11 ( .
".
50. A bare reading of the above statement would show that a major portion of the said statement is not admissible in evidence and no reliance could have been placed on the same.
Crl. Appeal No.1577/2011 51
51. It is significant to notice that no blood stains are seen on the weapon. Of course, the prosecution gives an explanation that it was washed with cow dung. But it looks very artificial that the accused would have walked 2 Kms with the weapon to dispose it of behind the house of his brother. Well, one must remember that the incident had taken place within a plantation and the accused could have disposed of the weapon there itself. Whatever that be, the statement which led to the recovery does not qualify to fall within the ambit of Section 27 of Indian Evidence Act and therefore the recovery suffers from legal infirmities also.
52. Even assuming that recovery is proper, that by itself cannot constitute a substantive evidence and it can at best be only corroborative item of evidence in support of other substantive evidence. In the case on hand, the motive and extra judicial confession alleged by the prosecution cannot be accepted for reasons already Crl. Appeal No.1577/2011 52 stated.
53. Finally, the prosecution relies on the presence of blood stains on the clothes alleged to have been worn by the accused at the relevant time. First of all, recovery is not based on any statement given by the accused but the brother of the accused simply handed over M.O.s 6 and 7 seized as per Ext.P21 mahazar. Even assuming blood stains were found, there is nothing to show that it was the same group as that of the deceased. The presence of blood stains by itself may not be a ground to hold that it was the accused who had committed the gruesome act.
54. Learned Public Prosecutor emphasised that since no explanation has been offered by the accused when questioned under Section 313 Cr.P.C, it constitutes an incriminating circumstance as against the accused. Had it been a case where M.O.s 6 and 7 were recovered on the basis of a confession statement made by the Crl. Appeal No.1577/2011 53 accused falling within the ambit of Section 27 of Indian Evidence Act, there would have been some substance in the above contention. One fails to understand how the brother of accused would be certain that M.O.s 6 and 7 were the clothes worn by the accused at the relevant time. No explanation is offered by the prosecution in this regard.
55. Result is that, we are unable to uphold the finding of the court below that the above stated circumstances are clearly established and they lead to the irresistible conclusion that it was the accused who had committed the offence. For the reasons already stated, we are unable to accept the items of evidence relied on by the prosecution as inspiring confidence in the mind of court. If that be so, accused is entitled to benefit of doubt.
For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below as against the accused for the offence under Section 302 of Crl. Appeal No.1577/2011 54 Indian Penal Code are set aside and it is held that the prosecution has failed to establish the case beyond reasonable doubt. The appellant stands acquitted of all the charges levelled against him. He shall be released forthwith if not wanted in any other case.
P. BHAVADASAN JUDGE RAJA VIJAYARAGHAVAN V. JUDGE smp/ds