Kerala High Court
James Alias Chacko vs State Of Kerala on 30 March, 1994
Equivalent citations: 1995CRILJ55
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. This is a triple murder case. A mother, her son and his wife all the three inmates of a house were exterminated on the night of 7-8-1992 while they were in their own house. Prosecution alleged that the dastardly act was perpetrated by the appellant for gain. Trial judge accepted the prosecution version and convicted him and sentenced him to death. He was also convicted under Sections 392 and 449 of the Indian Penal Code and was sentenced to rigorous imprisonment for 7 years and 5 years respectively besides fine.
2. The names of the three deceased are: Thressiakutty (mother), Shyjo (her son) and Sali (his wife). Marriage of shyjo and Sali was conducted only 40 days prior to this tragedy. The three were residing in Poochalil House (at Anikusha in Thodupuzha Taluk). Appellant and Shyjo were acquainted with each other for long time and appellant had advanced some money to Shyjo as loan and appellant had been pressing for return of the money. Appellant was doing money lending business in a small way and he used to raise funds for his business by borrowing from others.
3. According to the prosecution version the incident happened like this: Appellant entered Poochalil House around 9 or 9.30 P.M. with the object of robbing the inmates of their valuables. He killed the three inmates by cutting them and/ or stabbing them with chopper and/or knife and decamped with the ornaments worn by them.
4. On the next morning, when the daughter of the maid-servant attached to the house did not receive any response from this house to the repeated calls made by her, she went and informed PW.1 (grandson of deceased -Thressiakutty) about it. PW.l rushed to the house and saw a ghastly scene of the three dead bodies of his kith and kin lying inside the house. He gave First Information Statement at Karimanoor Police Station.
5. Appellant was arrested at 2 P.M. on 14-8-1992. On the basis of the information collected from him, two gold chains (M. Os. 1 and 2), a knife (M.O.7) and a torn piece of a bed sheet (M.0.26) were recovered by the investigating officer. A case was charge sheeted against him. One Dr. Saju was also arrayed as second accused on the allegation that he helped the appellant and destroyed the evidence in order to screen the offender.
6. Prosecution depended entirely on circumstantial evidence to prove the case. Appellant denied any involvement in the episode. He examined DW. 1 to show that at the relevant time he was elsewhere. Second accused denied having done anything to destroy the evidence. Sessions Judge found that prosecution did not prove any case against 2nd accused and acquitted him. But, in the case of the appellant, learned Sessions Judge found that the proved circustances are overwhelming to point to his guilt. He rejected the evidence of DW. 1. outright. Accordingly, the appellant was convicted and sentenced as aforesaid.
7. One point which was not disputed by the learned counsel for the appellant is that the three deceased who were the inmates of Poochalil House were murdered on the night of 7-8? 1992. Exts. P41, 42 and 43 are post mortem certificates issued by PW. 46 Dr.E.U.Raja who conducted the autopsy. The certificates bear ample testimony to the fact that the three were badly mangled to death.
8. So the only question in this case is whether prosecution has succeeded in proving that it was the appellant who murdered the three deceased. It must be pointed out at this juncture that no argument was addressed before us that the testimony of DW.1 deserves acceptance. Even otherwise, we are not impressed by his evidence as we went through it. He has obviously given evidence to save his one time employer.
9. To establish the crucial point involved in this case prosecution relies on the following circumstances: (1) Murder of the deceased would probably have taken place around 9 P.M. or 10 P.M. on the night of 7-8-1992. (2) Appellant was seen by PW.7 at about 9 P.M. standing near the gate of Poochalil House. (3) PW.8 saw him after 10 P.M. standing near a culvert at Anikuzha. He was then wearing only achuddy (underwear) and was washing his clothes. (4) One of the blood stained finger impressions, photograph of which was taken from the house of occurrence, was that of the thumb impression of the appellant. (5) One of the blood stained foot impressions in the house was found to be similar to the loot impression of the appellant. (6) M.O.3 bed sheet contained 'O' group blood and it was torn recently. The torn portion (M.O.26) was recovered from the place near the spot where PW. 8 saw the appellant. Appellant had an incised injury on his fingers which was sustained on 7-8-1992 at about 10 P.M. His blood group was 'O' and the blood group found on M.O.26 was also O' (7) M.O. 27 shirt and M.O. 28 lungi were recovered from the house of the appellant and they contained human blood and the group was discerned as 'B' group from the blood stains on M.O.28. The blood group of Thressiakutty was also 'B'. (8) M.O. 19 button recovered from the scene was originally fastened with M.O.27 shirt. (9) M.Os. 1 and 2 gold chains of the deceased were recovered from a gutter on the strength of a statement elicited from the appellant. (10) Appellant was in dire need of money during the period.
10. Though the case law on circumstantial evidence has swelled up, the basic requirements for establishing the guilt of the accused on the strength of circumstantial evidence remain unaltered. They are: (a) All the circumstances from which the conclusion of guilt is to be drawn should be fully and cogently established, (b) All the facts so established should be consistent only with the hypothesis of the guilt of the accused, (c) The proved circusmtances put together should form a complete chain. (4) The cumulative effect of all the circumstances should lead to the irrcsistable conclusion that the offence was committed by the accused.
11. However, it is not necessary that such circumstances by itself be conclusive. It is enough that all circumstances put together form a complete chain (vide Kishore Chand v. State of H.P. AIR 1990 SO 2140 : 1990 Cri LJ 2289. We bear in mind the well settled principles governing cases of circumstantial evidence. We shall now deal with the circumstances one by one.
12. All the deceased were hale and hearty at about 8.30 P.M. and that was spoken to by PW. 1, the grandson of the deceased-Thressiakutty. PW. 1 said that on the fateful night he and his mother visited this house and remained with the inmates talking with them till 8 P.M. and he left the house only after dinner with them. On the next morning he found three dead bodies in the house. Ext. P42 and Ext. P43 post mortem certificates of Sali and Thressiakutty show that the stomachs were full with softened rice. Of course, the stomach of Shyjo was found empty (Perhaps PW. 1 was wrong when he said that Shyjo also took dinner). Sali and Thressiakutty would have died without much time interval after dinner. From this we can safely conclude that death must have been between 8.45 P.M. and 10 P.M.
13. Appellant was in need of money. He obtained loan from PWs. 2 to 5 to whom he gave signed cheques as security for the loan. There is no dispute on that aspect. PW.6 maid-servant said that appellant visited the house on the previous evening and she heard the appellant insisting Shyjo to return the money advanced by him. So it is quite possible that appellant was in dire need of money.
14. PW.7 said that he saw the appellant standing near the gate of the house of occurrence. The time was then around 9.30 P.M. PW. 7 was then returning home from his uncle's house. The witness said that he did not attach much importance to the presence of the appellant at the particular situation as he was a frequent visitor in that house. But when he heard on the next morning about the murder of the inmates of the house he remembered that appellant was standing at the gate on the previous night. He was questioned by the police within a couple of days.
15. The above evidence can be discussed with the testimony of PW.8 that he saw the appellant washing his shirt in a thodu situate near the scene of occurrence and he was then wearing only a chuddy. Time then was around 10 P.M. The witness said that he had asked the appellant why he was doing it to which, appellant replied that his shirt became muddy when he slipped down during rain. If the above two items of evidence can be believed they afford very important circumstances that appellant would have come out of the house possibly after the murder and that he was not prepared to walk through the road without washing his clothes. Both witnesses were cross-examined at length, but practically nothing was elicited from them to discredit this testimony. So the trial Judge placed reliance on their testimony. We do not find any reason to take a different view.
16. Ext. P21 is the photo taken from the thumb impression found on the wall of the dining room of the house of occurrence (Ext. P22 is the photo of the specimen of the right thumb impression of the appellant). Ext. P21 was compared with the specimen impression. PW.23 Finger Print Expert gave his opinion in Ext. P23 report that there were 16 identical ridge characteristics as between the two. PW. 25, therefore, concluded that the impressions in Exts. P21 and 22 were from the same thumb.
17. Science of identification by thumb impression has advanced to a great leap. Supreme Court has regarded the said science "as an exact science and does not admit of any mistake or doubt" (vide Jaspal Singh v. State of Punjab AIR 1979 SC 1708 : 1979 Cri LJ 1386. It was once thought that there must at least be 12 identical characteristics between the questioned finger impression and the standard one for reaching, a conclusion that both belong to the same finger. But, in later years it was found that 6 points of identical characteristics between the two were sufficient for the conclusion regarding identity (vide Mohan Lal v. Ajith Singh AIR 1978 SC 1183 : 1978 Cri LJ 1107.
18. Learned counsel for the appellant contended first that the questioned impression is of no use as the same is smudged impression, the ridge lines of which were broken or fragmented. Even if it was so, that is no reason to sideline the report, for, the finger-prints found at crime scenes or crime articles are most often like that. Supreme Court pointed out in the decision cited (1979 Cri LJ 1386) (supra) that it is for the experienced and skilled expert to say whether a-particular impression is usable. No doubt, it is for the court to decide whether the extent of smudgeness was such that the expert could not have used it for comparison.
19. We examined Exts. P21 and 22 with the help of a magnifying glass and considered the report of PW.25. We have seperately looked at the ridge characteristics pointed out in the report. We find no reason to dissent from the opinion expressed by PW. 25 that the ridge characteristics noted are identical. We have no difficulty to conclude that appellant's right thumb impression had fallen on the wall in the dining room when his palm was smeared with blood.
20. The next is the blood stained foot print found in the scene house. Ext. P2(m) is the photo of one of the foot impressions from among the blood stained foot impressions fell on the floor of the house. The left foot impression of the appellant was taken (Ext. P44). A Testor Inspector attached to the Ernakulam District Crime Record Bureau Finger Print unit (PW. 47) compared both and opined that both are the impressions of the same person. It must be pointed out that the said conclusion was not based on any ridge characteristic. All that PW.47 pointed out was that the third toe of the foot was smaller than the second toe which is not a usual feature. Dr. P.C. George (PW. 37) had occasion to examine the appellant and he also noted the aforesaid special feature. There is practically no dispute that appellant's left foot had the special feature. Be that as it may, the said aspect might, at the most, show that a man whose left foot had such a special feature would also have troddeen on the floor of the house after the floor got splashed with blood.
21. One of the clinching circumstances is made out with the recovery of a cloth cut piece (M.O.26). When PW. 51 interrogated the appellant he got the information that "a cut piece which was used as bandage was left beneath the culvert near Anikusha paddy field. PW. 51 collected M.O.26 from that place. The significance is that the said cut piece is the torn portion from M.O.3 bed sheet found on one of the cots inside the scene house. The further consequence is that the chemical examiner delected 'O' group blood on M.O.26 and M.O.3. The blood of accused/ appellant was tested by PW.45 in the laboratory and found out to be 'O' group. Learned Public Prosecutor pointed out that the place wherefrom M.O.26 was collected is significant as that was the place near which PW.8 saw the appellant around 10 P.M. on the date of occurrence.
22. There was injury on the fingers of the right hand of the appellant. PW. 37 doctor who noted those injuries and issued Ext. P35 certificate has said that the appellant told him that he sustained the injury at about 10 P.M. on 7-8-1992. (The further portion of the statement made by the appellant to the doctor is inadmissible in evidence as amounting to confession) because appellant was then in police custody. The above circumstances put together would show that appellant would have torn out M.O.26 from the bed sheet (M.O.3) and bandaged his right index finger around 10 P.M. on 7-8-1992.
23. The next circumstance pressed into service by the prosecution and relied on by the trial court pertains to the recovery of M.O.19 plastic button from the scene (when the scene mahasar was prepared by the investigating officer). This button is sought to be fastened with a shirt (M.O.27) collected from the house of (he appellant. No doubt, among the buttons stitched on M.O.27 shirt, two are seen detached from it. The remaining buttons on the shirt and M.O.19 are apparently of the same manufacturing process. Despite the above features, it is not clear how far it will help the prosecution to connect the appellant with the crime.
24. M.O.27 shirt and M.O.28 lunki contained human blood. This was discerned when those materials were subjected to chemical test (Ext. P62 certificate). It further shows that the blood on M.O.28 lunki was of 'B' group (The blood group of Thressiakutty was identified as 'B' -- but the quantity of blood available on M.O.27 shirt was too insufficient to determine the group). If there was evidence to show that M.O.27 shirt and M.O.28 lunki were the garments worn by the appellant on 7-8-1992, it would have been a very clinching circumstance against him. There is not even an evidence that those belonged to the appellant.
25. Learned Public Prosecutor made an attempt to show that the shirt and lunki were the garments of the appellant. PW.33 (father of the appellant) produced them to the police. According to the plice, PW. 33 then told the police that they were appellant's garments. But PW. 33 denied it in court having stated so to the police. Still learned Sessions Judge relied on the statements for the following reasons: "Eventhough PW. 33 denied the said case, PW '34 who had witnessed the production, had heard PW.33 stating to PW.31 that those are the cloths of Al (appellant). If so, the statement to that effect incorporated in Ext. P. 32 mahasar cannot be said to be hit by Section 162 Cr. P.C. Even otherwise what is incorporated in Ext.P32 mahazar is not the statement of PW. 33 under Section 161(3), Crl. P.C. so as to attract the taboo under Section 162 Cr. P.C".
26. It is elementary that a statement made by any person to a police officer during investigation is inadmissible in evidence (vide Section 162 of the Code of Criminal Procedure). The only limited use of such a statement is to contradict the maker thereof, as envisaged in the provisions and nothing else. That which is prohibited by Section 162 cannot be used through any other mode. When the law interdicted that the statement made to the police cannot be "used for any purpose", it cannot be used by resorting to some other method. Learned Sessions Judge has gone wrong in circumventing the interdict contained in Section 162 of the Code by using the statement in a mahazar. What PW.34 said was only that he heard appellant's father stating so to the police. It still remains a statement of PW. 33 made to the police and is therefore, outside the pale of admis-sibility.
27. What remains with M.Os. 27 and 28 is that they were recovered from the house where the appellant was residing with other members of the family. It is not a circumstance which can be said to be consistent only with the guilt of the appellant.
28. The next circumstance is the recovery of M.Os. 1 and 2 gold chains. There is unimpeachable evidence in this case to show that M.O.I was the gold chain worn by Shyjo and M.O.2 was the gold chain worn by Sali. The Superintendent of Police, PW.31, deposed that when appellant was interrogated by the Deputy Superintendent of Police, he too was present and he heard the appellant saying that "'the ornaments were dumped into the gutter situate on the east of the iron railings in Subbash Bose Park, Emakulam." When appellant was taken to the place appellant took out a paper packet in which M.Os.l and 2 were found.
29. The question is whether the recovery of M.Os. 1 and 2 would prove that appellant was in possession of them. The statement deposed to by PW. 31 does not contain the words necessary to make out an admission on the part of the appellant that he was in possession of them. The statement may show that he was aware of the fact that those gold chains were dumped in the gutter (vide Prakash Chand v. State (Delhi Admn.) AIR 1979 SC 400 : 1979 Cri LJ 329. The fact discovered by the police from the appellant, would, at the most, be that the appellant know that they were lying there. Nonetheless, on the facts, the conduct of the appellant in pointing out the gold chains which were dumped cannot be sidelined as of no implication. It is certainly a circumstance which has a great bearing on the guilt of the Appellant when the circumstance is taken along with the other proved circumstances.
30. Learned Public Prosecutor wanted us to use the remaining circumstance that a knife was recovered on the basis of the statement of the appellant. We do not find any utility with it since the knife was not stained with blood. It was not disintered from any buried condition. Nor could the prosecution show that the said knife was used for the commision of the crime. Hence, merely because a knife was recovered on the basis of the statement elicited from the appellant, no incriminating circumstance can be made out of it.
31. To sum up, some of the circumstances relied on by the prosecution have no utility in this case. Yet, the remaining circumstances are quite sufficient to form a complete chain, the cumulative effect of which is to come to an irresistible conclusion regarding the guilt of the appellant.
32. Learned counsel for the appellant contended that there are certain broad features which might show that the murders would not have been perpetrated by a single man. He pointed out that there were other ornaments of the deceased which were missing and that police failed to trace them out and that would show that there would have been other hands. He also pointed out that the large number of injuries on the three deceased could not have been inflicted by one single individual.
33. We considered the said contention anxiously. We do not think that the mere fact that police failed to trace out the other ornaments would necessarily lead us to a conclusion that others would be involved in the"murder. Similarly the number of wounds on the three deceased need or need not necessarily be the work of multiplicity of hands. Even a single individual can inflict those injuries at three different times on the same night. Merely because of the possibility of some others also being involved in the murder, we are not disposed to think that the appellant is not involved in the crime. 34. The upshot of the above discussion is that we concur with the finding of the trial court that the three deceased were murdered by the appel-lant himself.
35. The trial court imposed a sentence of death on the appellant on the assumption that appellant had trespassed into the house with the object of plundering the ornaments after killing the inmates. Of course, learned Sessions Judge seems to have been very much moved by the tears rolled down the cheeks of Thressiakutty' s grandson in the witness box when he (PW. 1) looked at Ext. P2 photograph. Learned Sessions Judge commented on such sight that "even the most hard-hearted ruffian would be stunned at the brutality and perversity behind the gruesome manslaughters." But judicial approach should be with equanimity and composer and not sentimental.
36. The scenes of most of the murders, if photographed, would tend to display a bizarre picture. Its horrendousness may multiply with the multiplicity of the victims involved. Even so, the court cannot regard that case as "rarest of rare" merely because of the number of victims involved or the ghastly picture the photographs exhibited. The court has to take into account all aspects for deciding whether a particular case is one of the rarest of rare cases where the lesser sentence is unquestionably foreclosed.
37. The factual position in this case has slight difference as we noticed and while perusing the Case Diary File Appellant's entry into the house of occurrence was not a criminal trespass as his object could have been to pressurise Shyjo to repay the loan amount received from the appellant. Quite probably appellant would have heard that Shyjo was planning to purchase a landed property. In this context, a reference to the. evidence of Jameela, the maid-servant (PW.6) is useful. She deposed that appellant visited the house on the previous day when coconuts were collected and garnered in the property of the deceased, PW.6 heard the appellant telling Shyjo "tomorrow is the last day for you to repay my loan and you must pay it. You can buy the landed property later" and Shyjo replying to it that "after selling the coconuts and timber, the money would be repaid". Next visit of the appellant to the house of Shyjo was on the fateful night, So, it is quite probable that appellant would have visited the house to demand the money back. The killing spree would have taken place thereafter. Of course, remaining in the house with any of the intentions enumerated in Section 441 of the Indian Penal Code would also amount to criminal trespass and appellant would have committed criminal trespass in that sense. That is different from saying that he entered the house with that intention. He would have developed that intention during the dialogue he had with Shyjo.
38. For the aforesaid reasons, we refrain from treating this as "rarest of rare cases in which the lesser sentence is unquestionably foreclosed" (Bachan Singh v. State of Punjab AIR 1980 SC 898 : 1980 Cr LJ 636. We also do not think that any fine need be a part of sentence for the different counts of offence found against him. Accordingly, we reduce the sentence passed on the appellant for the offence under Section 302 of the Indian Penal Code to one of imprisonment for life. The sentences passed on him by the trial court under the other counts are confirmed by deleting the fine portion therefrom. We direct that the different sentences of imprisonment under different counts will run concurrently.
Reference is answered accordingly and Criminal Appeal is disposed of.