Methalatt Balan vs The State Of Kerala on 3 February, 2012

[Cites 25, Cited by 1]

Kerala High Court

Methalatt Balan vs The State Of Kerala on 3 February, 2012

This appeal is filed by the accused who has been found guilty for the offence under Sections 449 and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months for the offence under Section 449 of IPC and to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/-, in default, to undergo simple imprisonment for a further period of one year under Section 302 of IPC.

2. The alleged incident happened on 22.4.2007 in and around 12.30 noon. The allegation is that the accused trespassed into the house of the deceased and beat on her head with a wooden log, identified as MO1. The victim was Crl.A. No.254 of 2012 :: 2 ::

taken to the Medical College Hospital by 6 p.m. on that day and she succumbed to the injuries in the early morning of the next day, i.e., 23.4.2007. She was aged 56 and the accused was aged 50 years.

3. The prosecution has examined PW1 to PW29, got marked Exts.P1 to P56 and identified MO1 to MO10. There is no eye witness to the alleged incident. The prosecution heavily relied on the circumstantial evidence brought out through PW2, PW11 to PW15, recovery of MO9 and MO10 material objects and the extra judicial confession alleged to have been given by the accused before PW14.

4. PW2 is the married daughter of the deceased, who is admittedly residing far away from the place of occurrence. She had spoken about the strained relationship in between the accused and the deceased. According to her, the accused used to visit the house of her mother, the deceased herein, Crl.A. No.254 of 2012 :: 3 ::

frequently in spite of her objection and misbehaved towards her. He is a near relative. Further, according to PW2, her mother told her that the accused used to visit her house and misbehaved towards her and also demanded to stay with him and that the demand was rightly refused. This was taken as a statement of the deceased admissible under Section 32 of the Indian Evidence Act by the prosecution.

5. Section 32(1) of the Evidence Act has got two parts in relation to admissibility of the statement alleged to have been given by a person who is dead, or cannot be found, or became incapable of giving evidence, or would not be procured without an amount of delay or expense. The first part deals with a statement made by a person as to the "cause of his death" and the second part deals with "any of the circumstances of the transaction which resulted in his death". Both can be applied only in cases in which the cause of that person's death comes into question. The relevancy of such statement is resting on Crl.A. No.254 of 2012 :: 4 ::

the question whether the statement is made by the person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. The relevancy and admissibility of a statement which would fall under second part of Section 32(1) of the Evidence Act is resting on the question whether that circumstance would form part of the transaction which has resulted in the death of the person concerned. The circumstance should be that of a nature having close proximity or should be part of the transaction which has resulted in the death of the person. In the present case, the oral testimony of PW2 as to what was spoken to by her mother discloses only the alleged misbehaviour of the accused towards her mother, the demand of the accused to stay with him and the frequent visit of her house by the accused in spite of the objection. The expression "transaction" which resulted in her death should be understood as the same transaction which led the victim to her death and none else. What is spoken by PW2 is not with respect to what has happened to the victim on the alleged date Crl.A. No.254 of 2012 :: 5 ::

of incident or what has transpired on the ill-fated day. But, it is squarely with respect to what has happened on an earlier occasion or occasions between the deceased and the accused and unless it is having a direct linkage/nexus with the transaction, which has resulted in the death of the deceased, it cannot be brought under the expression "circumstances of the transaction which resulted in her death" as embodied under Section 32(1) of the Evidence Act. A disclosure or statement made before the commencement of alleged commission of offence or an apprehension, or suspicion in the mind of victim cannot be brought under either the first part or the second part of Section 32(1) of the Evidence Act. The circumstances which do not form part of the transaction resulted in the death of the deceased is not admissible in evidence under Section 32(1) of the Evidence Act.

6. What is spoken by PW2 at the most would show the motive behind the crime which is resting on the question of Crl.A. No.254 of 2012 :: 6 ::

mens rea, the mental condition of the accused and not the apprehension in the mind of the victim/deceased. In order to bring the circumstances within the sweep of second part of Section 32(1) of the Evidence Act, it should form part of the same transaction which has resulted in her death.

7. The Privy Council had the occasion to consider the expression "circumstances of transaction" used in Section 32 (1) of the Evidence Act in Pakala Narayana Swami v. King Emperor (AIR 1939 PC 47) and held as follows:

"...The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible."

8. The Apex Court in its order dated 29.7.1966 in Crl.A. No.254 of 2012 :: 7 ::

Criminal Appeal No.55 of 1966 (Shiv Kumar v. State of U.P.) had taken the very same view as under:

"The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed, but general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. A necessary condition of admissibility under the section is tht the circumstance must have some proximate relation to the actual occurrence. For instance, a statement made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be a circumstance of the transaction, and would be so whether the person was unknown, or was not the person accused. The phrase 'circumstances of the transaction' is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in 'circumstantial Crl.A. No.254 of 2012 :: 8 ::

evidence' which includes evidence of all relevant facts. It is on the other hand narrower than 'res gestae' [See Pakala Narayana Swami v. Kind Emperor (AIR 1939 PC 47)]. As we have already stated, the circumstance must have some proximate relation to the actual occurrence if the statement of the deceased is to be admissible under Section 32(1) of the Evidence Act."

9. The Apex Court then again endorsed the view taken by the Privy Council in Pakala Narayana Swami's case (supra) in Sharad Birdhichand Sarda v. State of Maharashtra ((1984) 4 SCC 116). It was reiterated again in Babubhai Bhimabhai Bokhiria and another v. State of Gujarat and others ((2014) 5 SCC 568).

10. A Full Bench of this Court in Narayanan v. State of Kerala (1992 (2) KLT 500 (FB), had the occasion to consider the application of Section 32(1) in reference to the expression made therein "the circumstances" and in paragraph 34 it was Crl.A. No.254 of 2012 :: 9 ::

held that it really embraces both distant or near circumstances in the following lines:

"34. There was a controversy as to whether "the circumstances" referred to in S.32(1) of the Act would embrace only proximate circumstances and would exclude distant circumstances. A Full Bench of this Court has set at rest the aforesaid controversy in State v. Ammini (1987 (1) KLT 928) by resorting to the observations made by the Supreme Court in Sharad v. State of Maharashtra (AIR 1984 SC 1622). Now the position is that it is immaterial whether the circumstance is distant or near and both are embraced by the expression. But then it must be a circumstance of the transaction which resulted in his death. By no stretch of reasoning, can it be said that what the deceased told his wife that he would come back for lunch is a circumstance of the transaction which resulted in his death."

11. So, the test to be applied regarding the application of second part of Section 32(1) of the Evidence Act is to find out Crl.A. No.254 of 2012 :: 10 ::

whether the statement made by the person constitutes or reveals a circumstance of the transaction which has resulted in his/her death and the linkage of a particular circumstance forming part of that transaction. This Court on an earlier occasion had considered what are the circumstances which are relevant in a murder case, in Unnikrishnan v. State of Kerala (2017 (2) KHC 123). Mere suspicion or apprehension in the mind of maker shall not be placed under Section 32(1) of the Evidence Act. As such the statement alleged to have been given by the victim before PW2 daughter would not come under the second part of Section 32(1) of the Evidence Act. As discussed earlier, at the most it may show the strained relationship in between the accused and the deceased and the motive behind the crime.

12. The next incriminating circumstance alleged by the prosecution is the extra judicial confession made by the accused before PW14. During chief examination, PW14 Crl.A. No.254 of 2012 :: 11 ::

deposed that while he was travelling in a private bus the accused made a confession to him stating that he had done some mischief to that "thalla". The expression "thalla", a colloquial usage in Malayalam, stands for an age old lady probably mother or grandmother or an age old lady. He had turned hostile to the prosecution without disclosing the person about whom the confession was made by the accused. He had also admitted during cross examination that he had given statement under Section 164 of the Code of Criminal Procedure before the concerned Magistrate and that it is correct. On further cross examination, he had admitted that the accused used to refer the victim as "thalla" and the same is heavily relied on by the prosecution to show the complicity of the accused in the alleged crime.

13. The question regarding the probative value of the statement recorded under Section 164 Cr.P.C., when it was disputed and denied by the witness during the course of his Crl.A. No.254 of 2012 :: 12 ::

examination was taken up in State of Delhi v. Shri Ram Lohia (1960 KHC 625) and held that the confession statement can only be used for corroboration or contradiction and not as a substantive evidence. In fact, there is not much difference in the probative value of the statement recorded under Section 164 Cr.P.C., other than a confession, from that of a statement recorded under Section 161 Cr.P.C. So, Ext.P13 statement recorded by the Magistrate under Section 164 Cr.P.C. can be used only either for corroboration or for contradiction and cannot be accepted as a substantive piece of evidence. But here in this case, apart from Ext.P13 statement recorded under Section 164 Cr.P.C., the witness had spoken and deposed that the accused used to refer the victim as "thalla" and hence, this will form part of substantive evidence, being the direct evidence tendered by the witness. This has to be read along with the earlier portion of his oral evidence regarding the confession alleged to have been made by the accused stating that he had done some mischief to that "thalla". The extra Crl.A. No.254 of 2012 :: 13 ::

judicial confession is really a weak piece of evidence and it is the duty of the Court to ensure that the same inspires confidence and is corroborated by other evidence. (See the decision drawn in Sahadevan and another v. State of Tamil Nadu ((2012) 6 SCC 403)). But at the same time, it is permissible to base conviction solely on extra judicial confession if it is found to be cogent, inspires confidence and not tainted by any discrepancies or improbabilities. Despite the inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement.

14. The Apex Court in Maghar Singh v. State of Punjab (AIR 1975 SC 1320), relying upon the judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (1954 SCR 1098), held that the evidence in the form of extra judicial Crl.A. No.254 of 2012 :: 14 ::

confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the Court believes the witness before whom the confession was made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Kishore Chand v. State of H.P. (AIR 1990 SC 2140), the Apex Court held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. This principle is reiterated in Baldev Raj v. State of Haryana (AIR 1991 SC 37), Piara Singh v. State of Punjab (AIR 1977 SC 2274), Madan Gopal Kakkad v. Naval Dubey and another (JT 1992 (3) SC 270) and it was held that the extra judicial confession which is not obtained by coercion, promise of favour of false hope and is plenary in Crl.A. No.254 of 2012 :: 15 ::

character and voluntary in nature can be made the basis for conviction even without corroboration.

15. In the instant case, the extra judicial confession made by the accused before PW14 does not disclose the name of the victim or the identity of the victim except the word used "thalla". It is true that "thalla" is a colloquial usage in Malayalam referring an age old lady. She may be a mother or grandmother or an age old lady. Though PW14 during the course of cross examination by the prosecution admitted that he had disclosed before the Magistrate that the accused used to refer the victim as "thalla", no much reliance can be placed on it on the reason that the extra judicial confession should be clear, unambiguous and no kind of guess work or interpretation can be applied. It is not permissible to have some addition or substitution either by way of interpretation or by filling any lacuna or explaining what is intended by the maker. The language employed should be clear, unambiguous and shall Crl.A. No.254 of 2012 :: 16 ::

not be capable of giving more than one interpretation, both inculpating and exculpating. The extra judicial confession can be acted upon as such without any addition or substitution and it should be capable of pointing towards the guilt of the accused alone. Otherwise it cannot be acted upon unless there is sufficient corroboration.

16. In Narayan Singh v. State of M.P. (AIR 1985 SC 1678), the Supreme Court cautioned that it is not open to the Court trying the criminal case to start with the presumption that extra judicial confession is always a weak piece of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. Then again in Gura Singh v. State of Rajasthan (2001 KHC 1010 : (2001) 2 Crl.A. No.254 of 2012 :: 17 ::

SCC 205: AIR 2001 SC 330: 2001 SCC (Cri)323: 2001 CriLJ

487), the legal position is reiterated as under:

"There appears to be a misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana (AIR 1976 SC 202) held that merely because the Court gave permission to the Public Prosecutor to cross examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa (AIR 1977 SC 170) it was observed that by giving permission to cross examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration, Crl.A. No.254 of 2012 :: 18 ::

in a criminal trial where a prosecution witness is cross examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy."

17. In the instant case, at first, the witness had disclosed in the chief examination regarding the alleged confession made before him by the accused. Then he turned hostile without disclosing the name of the victim or with respect to whom the accused had given his confession statement. He was declared hostile and cross examined by the prosecution. Thereon, he had admitted Ext.P13 statement given before the concerned Magistrate under Section 164 CrPC and also disclosed that he Crl.A. No.254 of 2012 :: 19 ::

had given a statement before the Magistrate stating that the accused used to refer the victim as "thalla". The portion of evidence tendered by PW14 that the accused has given a confession statement referring the victim as "thalla", in the said circumstances, cannot be accepted since the said confession did not disclose the identity of the victim and it requires corroboration by other evidence.

18. The prosecution relied on PW12 and PW13 so as to prove the presence of the accused in the near vicinity of the place of occurrence. According to PW12, the accused participated in the marriage of his daughter on the same day and left the place. But his house is located half a kilometre away from the place of occurrence. PW13 is a shop keeper. He had also given oral evidence stating that the accused passed through Mulavanakkadu Road towards south and that the house of the victim Vimalakumari is situated on the south. But, it is not a way or road leading towards the house of the Crl.A. No.254 of 2012 :: 20 ::

victim alone; it is a public road and as such the oral evidence tendered by PW12 or PW13 will not give much assistance to the prosecution case. Mere presence of the accused in a nearby road cannot be taken as an incriminating circumstance to complete the chain of circumstances pointing towards the guilt of the accused. This Court, on an earlier occasion, considered the said question and formulated the text that can be applied by categorizing the circumstances into two wider categories. [Unnikrishnan v. State of Kerala (2017(2) KHC 123: 2017(1) KLD 548: 2017(2) KLJ 179: 2017(2) KLT SN 20:

2017 CriLJ 2514)]. The circumstance as spoken by PW12 and PW13 that they have seen the accused half a kilometre away from the place of occurrence in a public road or in the house of PW12, would not fall under the category of a relevant circumstance unless the same has some nexus with the alleged incident.

19. Yet another circumstance brought out through PW11 Crl.A. No.254 of 2012 :: 21 ::

Doctor who conducted the postmortem examination on the body of the deceased is that there is a fresh abrasion on the chest of the deceased and it can be caused by a love biting and it is possible that it could be caused by a person having single tooth. It was submitted that the accused is a person having single tooth. But no expert opinion was obtained and the accused was not brought before PW11 Doctor to have an identification of the tooth of the accused and whether it can be possible to cause the same by biting on the chest of the deceased. It was inter alia contended by the learned counsel for the accused that the expert report of the doctor was obtained but it was neither produced nor let in evidence by the prosecution. The mere fact that the accused is having only one tooth itself is not sufficient to bring him as the person who caused the abrasion on the chest of the deceased unless there is an expert opinion regarding the cause of the abovesaid injury with reference to the tooth of the accused. That has not been done by the prosecution.

Crl.A. No.254 of 2012

:: 22 ::

20. The recovery of MO9 and MO10 dhothi and shirt of the accused under Ext.P14 seizure mahazar also will not give much assistance to the prosecution since the witnesses to the alleged recovery had turned hostile to the prosecution. Further in Ext.P36 chemical analysis report, the origin of the blood, whether it is a human blood, and RH factor of the blood were not detected. There is no conclusive evidence to show that MO9 and MO10 were stained with human blood and as such neither MO9 nor MO10 can be termed as incriminating objects.

21. It is true that PW2 had spoken about the strained relationship in between the accused and the deceased and the misbehaviour of accused towards the deceased and also his frequent visit to the said house in spite of objection. The refusal to co-operate with the demand of the accused may be a sufficient motive for the crime but that alone is not sufficient to Crl.A. No.254 of 2012 :: 23 ::

bring home the complicity of the accused in the crime. See the decisions in Sampath Kumar v. Inspector of Police, Krishnagiri ((2012) 4 SCC 124); State of Punjab v. Bittu and another etc. (2015 KHC 4820) and State Bank of India v. M.S.Basi and others ((2004) 11 SCC 347).

22. As discussed in earlier paragraphs, since extra judicial confession proved through PW14 is incomplete and there is utter failure on the part of the prosecution to prove the guilt of the accused beyond the scope of suspicion, the benefit goes to the accused and hence deserves acquittal both under Sections 449 and 302 of IPC. The finding of guilt of the accused both under Sections 449 and 302 of IPC, the conviction thereunder and the sentence imposed are hereby set aside.

In the result, the Criminal Appeal is allowed. The accused is acquitted. The bail bond, if any, executed would Crl.A. No.254 of 2012 :: 24 ::

stand as cancelled. The accused shall be released forthwith, if he is in detention and if his detention is not required in connection with any other case.

A.M. Shaffique Judge P.Somarajan Judge ahz/

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