Kerala High Court
Biju vs State Of Kerala Represented By Public on 13 May, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939
CRL.A.No. 850 of 2011 (A)
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AGAINST THE JUDGMENT IN SC NO.442/2002 of I ADDL.SESSIONS JUDGE,
THRISSUR DATED 13/05/2011
APPELLANT/ACCUSED:
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BIJU, S/O.CHANDRAN, KUTTASSERY VEETTIL
PORATHISSERY VILLAGE, KARUVANNUR DESOM.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
----------------------
STATE OF KERALA REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY ADV. SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR
ATROCITIES AGAINST WOMEN AND CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19/09/2017, THE COURT ON 07-11-2017 DELIVERED THE FOLLOWING:
A.M.SHAFFIQUE, J
&
P.SOMARAJAN, J
* * * * * * * * * * * * * *
Crl.A.No.850 of 2011
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Dated this the 7th day of November 2017
J U D G M E N T
Shaffique, J The accused in S.C.No.442/2002 of the Court of 1st Additional Sessions Judge, Thrissur has preferred this appeal challenging the judgment dated 13/05/2011 by which he was convicted for offence punishable Under Section 302 and 201 of the Indian Penal Code (for short 'IPC'). He was sentenced to undergo imprisonment for life and to pay a fine of Rs.2 lakhs, in default of which to undergo rigorous imprisonment for two years for the offence under Section 302 IPC. No separate sentence was passed under Section 201 IPC since he was sentenced to undergo life imprisonment for the offence under Section 302.
2. A girl named Rekha was missing from her house . A man missing complaint was filed before the local Police Station and on investigation it was found that she was murdered and her dead body was hidden in a pit. Prosecution case proceeded on the basis that Rekha had a love affair with the accused. Accused Crl.A.No.850/2011 2 came to know that the parents of the deceased will not support their relationship. On 07/04/2000, he requested Rekha to have sexual intercourse with him while she was returning from a nearby shop. When she refused, he caught hold on her neck, caused throttling, and thereafter caused injuries inside her pelvic region through vagina, which caused her death and thereby committed offence under Section 302 of the I.P.C. After committing the crime, he took away her articles and hid the dead body in a pit to destroy the evidence.
3. The investigation was completed by PW27 and a final report was submitted before the Judicial First Class Magistrate-I, Thrissur. The matter was committed to the Sessions Court Thrissur and it was taken on file as S.C No.442/2002. The case was made over to the Court of 1st Additional Sessions Judge, Thrissur for trial and disposal. On the charges framed against him, the accused pleaded that he was not guilty. The prosecution examined PWs 1 to 28, marked Exts.P1 to P18(d) and MOs 1 to 19 were the material objects produced before Court. Exts.D1 to D15 were the defence exhibits. After completion of the evidence, the accused was questioned under Section 313 Cr.P.C. He was found Crl.A.No.850/2011 3 guilty for the offences charged against him and was convicted and sentenced as stated above.
4. Learned counsel for the appellant raised several contentions to expose the fact that the prosecution could not prove the case beyond reasonable doubt. Primarily it is contended that prosecution evidence was not in terms with the charge that had been framed by the Court. That apart, in a case which rests purely on circumstantial evidence, the prosecution utterly failed to prove any of the circumstances and none of the circumstances emanating from the prosecution case was enough to conclude that the accused had committed the crime. Further, there are several infirmities in the investigation which would, in effect, establish the fact that the prosecution utterly failed to prove the guilt against the accused. It is also contended that the recovery allegedly made under Section 27 of the Evidence Act is not in compliance with the legal requirement. The statement attributed to the accused leading to the recovery must find a place in the deposition of the witness which is lacking in the case. A mere statement made by the Police, that the dead body was recovered at the instance of the accused, cannot be taken into Crl.A.No.850/2011 4 account as a piece of evidence against the accused. Further, the material objects alleged to have been recovered, is not in accordance with the mandate of Section 27 of the Evidence Act, and the evidence is lacking to come to a conclusion regarding the exact information given by the accused while in custody which led to the recovery of articles. It is argued that even if there is a strong suspicion about the accused, that will not be sufficient to hold him guilty of the offences.
5. On the other hand, the learned Public Prosecutor supported the finding of guilt entered into by the Court below. It is contended that even if a mistake has been committed by the Court below in framing the charge, it has not caused any prejudice to the accused in formulating his defence. Further, it is contended that all the circumstances pointed out clearly indicate that the accused alone has committed the crime and there is no other hypothesis pointing to the innocence of the accused. The recovery of the materials belonging to the deceased on the basis of a statement given by the accused clearly connects the accused with the crime. Further, the accused himself has shown the place where he had hidden the body of the deceased. Therefore, it is Crl.A.No.850/2011 5 contended that there is no reason to interfere with the judgment of the Court below.
6. In so far as several arguments have been raised, primarily, we shall consider how the Court below had arrived at the aforesaid conclusion. Court below primarily placed reliance on the evidence of PW8. He saw the deceased and accused together near Peruvanam temple in the morning, on the date on which she was missing. It was held that the dead body of the deceased was recovered based on the information given by the accused. Recovery of chappal, pearl chain, jimikki (ear ring) and stud belonging to the deceased as per the statement of the accused is also an evidence to connect the accused with the crime. The Doctor PW11, has stated that the injuries suffered by the deceased is enough to cause death. Injury was seen on the vaginal part and intestine which implies that injury was caused through the vaginal cavity. Hence it was found that the attempt to eliminate her was brutally done. The Court below therefore held that, from the aforesaid circumstances, which has been proved, it is clear that the accused himself has committed the offence. With reference to the offence under Section 201 of the Crl.A.No.850/2011 6 IPC also, Court below found that after having murdered the deceased, the accused had hidden the dead body, in a pit, in a property belonging to one Balan. It is, pursuant to the statement of the accused, that the dead body was recovered. The intention was to cause disappearance of the evidence and therefore, he should be convicted for the said offence also.
7. Now, we shall deal with the arguments raised by the learned counsel for the appellant and whether he had succeeded in establishing the same.
8. The first and foremost argument is that the charge framed by the Court in regard to the cause of death of the deceased is not in accordance with the prosecution case. In the final report filed by the Investigating Officer before Court, it is stated that the accused had tried to strangulate the deceased using the shawl she was wearing and later by his bare hands. When she became unconscious, he removed her clothes and put his fingers on her vaginal parts, and caused grievous injury to her pelvic cavity and committed murder. He took away her gold ornaments and hid her body in a pit, formed due to uprooting of coconut tree. He concealed her body and dresses by burying the Crl.A.No.850/2011 7 body inside the pit. However, in the charge framed by the Court on 25/02/2009, it read as under:
"Firstly, that you and the deceased Rekha were in love affair for the last 1= years and on believing that the parents of Rekha did not like the relationship between the deceased and accused and thereupon you with an intention to commit rape on the deceased and thus on 7.4.2000 while the deceased Rekha was returning from Mavely store and knowing that fact the accused waited for the arrival of the Rekha through the pathway runs through the property belongs to one Balan, S/o.Kunjunni and the accused requested to have sexual intercourse with the deceased Rekha and as she refused the demand, the accused in order to prosecute his intention to commit the murder he caught hold her neck so as to cause throttling knowingly that his act is sufficient to cause the death of the deceased Rekha and thereby committed the offence punishable under Section 302 IPC within the cognizance of this Court.
Secondly, that you on the same day, same time and at same place and in connection with the same transaction, hide the body of the deceased in a pit so as to Crl.A.No.850/2011 8 disappear the evidence and thereby committed the offence punishable under Section 201 of I.P.C within the cognizance of this Court.
Thirdly, that you, on the same day, same time, at same place and in connection with same transaction removed the gold ornaments worn by the deceased and thereby committed the offence under Section 382 IPC within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charges."
9. The contention urged by the learned counsel for the appellant is that the cause of death in the Court charge is due to throttling of the deceased. There is no charge for any other injury being caused by the accused. Whereas, as per the medical evidence, the cause of death was due to the injury caused in the pelvic cavity of the deceased. In so far as the charge framed by the Court, is different from the evidence adduced, with regard to the cause of death, the accused is entitled for an acquittal. He also placed reliance upon the judgment of the Apex Court in Basavaraja and Others v. State of Karnataka [(2008) 9 SCC 329]. In that case, the deceased died after sustaining burn injuries. Prosecution case was that the accused, with the Crl.A.No.850/2011 9 intention to cause her death, dragged her inside the cattle shed where accused No.2 poured kerosene oil on her person and the 1st accused set fire to her after lighting a match stick, as a result of which, she sustained burn injuries and died. Charge was framed on similar lines. However, the Doctor PW7, in his postmortem report observed that the burns were not ante-mortem in nature and were post-mortem. It was found that charges were framed on totally unfounded premises and even in the examination under Section 313 of the Cr.P.C, with reference to the evidence of PW7, it was stated that the death was due to smothering. Hence it was held that the accused persons having caused the death by burning, does not arise. Such casual framing of charge and examination under Section 313 of the Code is a disturbing feature. Therefore, it was held that the appeal has to succeed and the conviction is to be set aside.
11. The counsel also placed reliance upon the Constitution Bench judgment in Willie (William) Slaney v. State of Madhya Pradesh [AIR 1956 S.C 116]. That case came up before the Constitution Bench, to determine whether there was a conflict in view between the Nanakchand v. State of Punjab [AIR 1955 Crl.A.No.850/2011 10 S.C 274] and Surajpal v. State of U.P [AIR 1955 S.C 419]. One of the grounds urged by the appellant was that he was charged under Section 302 of the IPC read with Section 34. His co- accused was acquitted. Contention was that the element of common intention drops out. Courts below held that the appellant inflicted the fatal blow and he was directly liable for murder. The contention of the appellant was that he was not charged with having murdered the man personally and therefore he cannot be convicted under Section 302. Relying upon the judgment in Nanakchand (supra), it was contended that the conviction is an illegality which cannot be cured and claims that he must either be acquitted, or at the most retried. The State contended that there was an omission to frame a separate charge in the alternative under Section 302 simpliciter, is a curable irregularity provided, no prejudice is caused to the accused. Hence it was contended that what is required to be considered was whether any prejudice has been caused to the accused or not. The charge which was the subject matter in issue was extracted at paragraph 3 which reads as under: Crl.A.No.850/2011 11
3. The charge was as follows :
"That you, on or about the 12th day of February 1953, at Civil Lines, Jabalpur went with your brother Ronnie Slaney to the house of Mrs. Waters (P. W. 20) at about 7 P.M. and in furtherance of the common intention did commit murder by intentionally or knowingly causing the death of her brother D. Smythe and thereby committed an offence punishable under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code......."
State contended that it was a charge under Section 302 of the IPC and that the reference to common intention and to Section 34 were mere surplusage. The Constitution Bench framed the following questions, which is reflected in the latter part of paragraph 5 which reads as under:
(5) It was contended on behalf of the State that this is really a charge under section 302 of the Indian Penal Code and that the reference to common intention and to section 34 are mere surplusage. There is much to be said for this but we will assume in this case (without so deciding) that the charge is ambiguous and that it means what the Crl.A.No.850/2011 12 appellant says it means, namely a charge under section 302 read with section 34 and not one under section 302 simpliciter.
On that assumption the question for our decision is whether the omission to frame an alternative charge under section 302 of the Indian Penal Code is an illegality that cuts at the root of the conviction and makes it invalid or whether it is a curable irregularity in which all that we are concerned to see is whether there was prejudice. What it narrows down to is this:
Is the charge to be regarded as a ritualistic formula so sacred and fundamental that a total absence on one, or any departure in it from the strict and technical requirements of the Code, is so vital as to cut at the root of the trial and vitiate if from the start, or is it one of many regulations designed to ensure a fair and proper trial so that 'substantial', as opposed to purely technical, compliance with the spirit and requirements of the Code in this behalf is enough to cure departures from the strict letter of the law.?
The Apex Court gave a brief narration of the object of the Cr.P.C in paragraphs 6 and 7 which reads as under: Crl.A.No.850/2011 13
(6) Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then provided there is 'substantial' compliance with the outward forms; of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
(7) Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial Crl.A.No.850/2011 14 and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice,. Some of these matters are dealt with by the Code and; wherever that is the case full effect must be given to its provisions."
Further reference can be made to paragraph 20 which reads as under:
(20) Now there is no doubt that a charge forms the foundation of a sessions trial and is a most important step in it. The accused must know and understand what he is being tried for and must be told in clear and unambiguous terms: section 271(1). There can be no shirking that or slurring over it, and this must appear on the face of the record. It cannot be established by evidence taken after the trial.
But there is, in our opinion, equally no doubt that the Code expressly deals with this and expressly provides that no error, omission or irregularity in the charge or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown. This is repeatedly reiterated in number of sections. Crl.A.No.850/2011 15
The whole question, therefore, is
whether the "charge" must be formally
reduced to writing and expressed as a
ritualistic formula in order to save the trial from the fundamental defect of an incurable illegality or whether the information that is the substance of the matter can be conveyed in other ways. The question is whether we are to grasp at the substance or play hide and seek among the shadows of procedure."
After placing reliance on Sections 226, 227 and 228 of Cr.P.C. 1898, the Apex Court held at paragraphs 24 and 25 as under:
"(24) Next, sections 226 and 227 show that errors in a charge, 'and even the total absence of a charge', do not vitiate a trial from the start so as to render it no trial at all as would the absence of sanction under section
197. This is evident because these errors and omissions can be remedied at any time during the course of the trial in the sessions Court (section 226) or even at the very end of the trial (section 227), and when this is done the trial need not proceed 'de novo' but can go on from the stage at which the alteration was made provided neither side is prejudiced (section 228).
That is conclusive to show that no error Crl.A.No.850/2011 16 or omission in the charge, and not even a total absence of a charge, cuts at the root of the trail. The proceedings up to the stage of the alteration, which, as we have seen, can be at the very end of the trial, are not vitiated unless there is prejudice; they are good despite these imperfections. That is impossible when the error is so vital as to cut at the root of the trial. It follows that errors in the charge, and even a total absence of a charge, are not placed in the non-curable class.
(25) Next, we have a case in which the error is not observed and corrected during the trial and the accused is convicted. In such a case, the High Court is empowered to direct a retria; 'only' if, in its opinion the accused was "misled in his defence" (section 232). It is to be observed that this is so whether there was a total absence of a charge or merely an error in it. It is evident that a conviction cannot stand if the defect cuts at the root of the trial, therefore defects even of this nature are not regarded as fatal."
Finally it was held at paragraphs 44 and 45 as under:
"(44) Now, as we have said, sections 225, 232, 535 and 537 (a) between them, cover every conceivable type of error and Crl.A.No.850/2011 17 irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice.
It is the substance that we must seek.
Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.
Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when will all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew Crl.A.No.850/2011 18 what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.
If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.
(45) In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage.
If it was not, and particularly where the accused is defended by counsel AIR 1930 PC 57 (2) at p.58 (G), it may in a given case be Crl.A.No.850/2011 19 proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that "no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused" 'AIR 1927 PC 44 at pp. 46-47 and 49 (F)'.
But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem.
There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were."
On the facts of the said case, it was finally held that the police charge sheet states that the appellant had hit the deceased with the hockey stick while the brother abetted him. The evidence of witnesses before the Sessions Court also deposed accordingly. It was found that there was no possibility of misunderstanding or Crl.A.No.850/2011 20 mistake. In the questioning also he had been confronted with the same questions of the witnesses. He has clearly and unambiguously told about the evidence against him that "he hit the deceased over the head". It was therefore held that when the appellant knew that the case against him was that he had struck the fatal blow and he was told that he was charged with the offence he is said to have committed, that is murder, and when he was informed about the date, place and person, there was nothing to infer prejudice. However, on facts, it was held that the appellant was not entitled to be convicted under Section 302 IPC and he was convicted under Section 304 Part II of the IPC.
12. The above judgment was cited to emphasise the point that the object of the Court is to ensure that an accused person gets a full and fair trial and he should be told and he should clearly understand the nature of the offence for which he is being tried and the case against him is to be fully and fairly explained and he should be afforded with full and fair opportunity to defend himself. It is argued that, in this case the fatal error in the charge framed by the Court had resulted in the accused not getting an opportunity to defend the alleged cause of death, which is Crl.A.No.850/2011 21 projected by the prosecution and therefore, on that reason itself, the accused is entitled for an acquittal as held by the Apex Court in Basavaraja (supra).
13. On the other hand, learned Public Prosecutor placed reliance upon the following two judgments:
i) Santosh Kumari v. State of J & K and others [2011(9) SCC 234] where the Apex Court considered the consequence of mistaken charge. In that case, charge was framed by the Sessions Court against the accused under Section 302, 109, 147, 148 read with 149 of the IPC. The High Court set aside the order framing charges and remitted the matter back to the Sessions Court to reconsider the matter. Two other connected matters were also decided by a common judgment which was taken up before the Apex Court. One issue which was projected was that the charge was invalid because there was no mention in the order of the Trial Court indicating the specific offence found to have been prima facie committed by one or the other accused individually or jointly nor there was any indication regarding the specific nature of the offences, sufficiently enough for describing in the order of framing charge, but only sections of the law Crl.A.No.850/2011 22 against which the offences were found to have been committed were mentioned. The High Court held that mere mention of the sections of the law in the order framing the charge would not, serve the purpose of law, as it was likely to prejudice the accused in his trial in so far as the accused would be disabled to know the exact charge he had to defend. The Apex Court in paragraphs 7 and 8 while referring to the judgment of the Constitution Bench in Willie (William) Slaney (supra) held as under at paragraph 12:
"12. On the facts and in the circumstances of the case, this Court is of the opinion that a patent error of law apparent on the face of the record was committed by the High Court in coming to the conclusion that in the order of framing charge there was mere mention of the sections of the law which was likely to prejudice the accused in his trial, as the accused would be disabled to know the exact charge he had to face. Having noticed the charge which was separately framed against each accused, the inevitable conclusion to be reached by this Court is that the High Court erred in law in holding that it was obligatory for the trial court to have indicated in its order and the charge-sheet the description of the offences for which one or the other accused Crl.A.No.850/2011 23 had to be tried because all necessary particulars which should be stated as required by law were already stated by the learned Judge of the trial court while framing charge. Further, the fact that trial against the accused has/had made considerable progress inasmuch as material evidence of the eye witnesses to the occurrences was recorded by the trial court could not have been ignored while deciding the question whether proper charge against each accused was framed or not. The nature of charge to be faced was clearly understood by each accused which is evident from the plea recorded by the trial court after framing the necessary charge that the nature of charge was very well understood by each accused. The fact is also evident from the averments made in the revision petition which was filed by the accused challenging the order framing charge. The fact that the charge was clearly understood by each accused is also evident from the nature of cross-examination of the eye witnesses made on their behalf by their learned counsel. In view of the fact that all the eye witnesses have been examined and cross- examined on behalf of the accused, the High Court should have resorted to the provisions of Section 225 of the Code of Criminal Procedure, Crl.A.No.850/2011 24 1989 as applicable to the State of Jammu and Kashmir which reads as under:
"225. Effect of errors.--No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
The cross-examination of the eyewitnesses on behalf of the accused would indicate that none of the accused was in fact misled by the so-
called error pointed out by the High Court nor could it be successfully pointed out by any of them that the so-called error has occasioned failure of justice to him. The remand of the case to the trial court for considering the case afresh on the point of charge was not warranted at all, as there is nothing to suggest or indicate even remotely that the accused had or would have been misled by any error or omission in the charge. Therefore, the order dated 20-10-2010 rendered in Criminal Revision No. 29 of 2008 deserves to be set aside. For the similar reasons the order dated 20-10-2010 passed by the High Court in the petition filed under Section 561-A Cr.PC, No. 54 Crl.A.No.850/2011 25 of 2009 allowing the prayer made by Respondent 8 to quash the order dated 24-3- 2008 will have to be set aside."
ii) The other judgment relied upon is that of a Division Bench of this Court in Raghava Nadar Reghu and others v. The State [1988 Crl.L.J1364]. In the above case, the Court was considering the question whether error or omission in the charge itself is serious or trivial. It is held that such errors or omissions is not to be regarded as important unless the accused has been misled by it or that the omission or error or both have occasioned the failure of justice. One of the contentions urged in that case was the charge framed under Section 302 read with Section 34 is incurably defective, since the materials given in the charge framed did not disclose the essential details that are necessary to enable sufficient notice as regards their culpability of the offence. Contention was that there was no mention of one of the weapons used namely a chopper by one of the accused. After considering the scope and effect of the provisions under Sections 211, 212 and 213, it was held that what the accused persons are entitled to get from the charge is (1) the offence with which they are Crl.A.No.850/2011 26 charged, 2) the law and section of law against which the offence is said have been committed, 3) particulars of time, place and person against whom the offence is said to have been committed. Section 213 further provides that if the nature of the case is such that those particulars referred above do not give the accused, sufficient notice of the matter with which he is charged, such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose also should be given. The accused is not entitled to any further information in the charge. Reference was made to the Constitution Bench judgment in Willie (William) Slaney (supra) wherein it was held that "when the case is one of murder, the accused is not entitled to be told in the charge, how it was committed, whether with a pistol or a lathi or a sword. He is not entitled to know from the charge simpliciter any further circumstance. How then is he expected to defend himself? He has the police challan, he has the evidence recorded in the Committal Court, he hears the prosecution witnesses and he is examined under Section 342 of the Code". In paragraph 33 of the judgment, it was further observed that "the only irregularity, if at all it can be said to be an Crl.A.No.850/2011 27 irregularity, is the non- disclosure of the essential facts disclosing how the offence has been committed and that the charge does not disclose clearly the weapons used by each of the accused." It was finally held that on the facts of the case, no prejudice had been caused to the accused in the matter of an omission to frame a specific charge under Section 452 IPC as against accused 2 and 3 and the non-disclosure of the specific instruments used by each accused for the commission of the offence in regard to the charge under Section 302 read with Section 34 IPC. It was further held that the accused was represented by a lawyer before trial court and no complaint was raised as regards the omission to frame a charge under Section 452 or the irregularities in regard to the charge under Section 302 read with 34 of the IPC.
14. In the case on hand, as already observed, the prosecution case is evident from the final report filed before Court which clearly indicates as to how the death of the deceased was caused. However, while framing the charge, the Court had committed a mistake in observing that the cause of death was due to throttling. But, the final report and entire evidence in the case led by the prosecution clearly indicates that the cause of Crl.A.No.850/2011 28 death was on account of the injuries sustained to the internal part of the pelvic cavity of the deceased. The postmortem certificate and the deposition of the Doctors which were very much available in the case file clearly indicates so. Evidence was led by the prosecution to prove the said facts. Questioning under Section 313 Cr.P.C was conducted in the manner in which the prosecution has led evidence. The accused was represented by a lawyer who was fully aware of the charge levelled against the accused and the evidence that had been adduced. Lawyer did not point out any omission or mistake in the charge framed by the Court at the time of trial. Reading of the charge framed by the Court, would show that the accused had committed the murder of the deceased, by throttling. He had hidden the body in a nearby place and he had stolen some of the articles belonging to the deceased. The fact that he was charged under Sections 302 and 201 of IPC is very much there in the charge sheet. The only discrepancy is with reference to the actual cause of death.
15. As held by the Division Bench of this Court in Raghava Nadar Reghu (supra), the actual cause of death is not necessary for framing a charge. The cause of death has to be Crl.A.No.850/2011 29 proved by the prosecution based on the materials to be produced. The cause of death is clearly indicated in the final report. Cause of death is spoken to by the Doctor and is evident from the postmortem report and the statement of the Doctor under Section 161 Cr.P.C. Therefore, the accused had all the opportunity to know about the cause of death of the deceased through the aforesaid materials. The witnesses were cross-examined on those lines. Under such circumstances, it cannot be stated that a mistake in the charge regarding the cause of death has resulted any prejudice to the accused, warranting a retrial nor is he entitled for an acquittal on that ground. In the case decided by the Apex Court in Basavaraja (supra), the prosecution case and the charge was that the deceased was set fire by the accused, whereas the Doctor's evidence proved that the burns on the deceased were not ante-mortem in nature and was postmortem. The facts of the case would further disclose that PW's 2 and 3 heard the 3rd accused telling her brother/the 2nd accused to finish off the deceased and accordingly the 2nd accused poured kerosene oil and accused 4 and 5 abetted the other accused to finish off the deceased. PW's 2 and 3 also deposed that when Crl.A.No.850/2011 30 they went to the house of the deceased she was crying for help from inside the house and thereafter they have seen the incident. The Trial Court found that the evidence of the Doctor, PW7 belied the version of PW's 2 and 3. There was also delay in lodging the FIR. The High Court, however, held that evidence of PW7 did not rule out the veracity of the evidence of PW's 2 and 3 and delay in lodging the FIR was explained. High Court, therefore, found the accused guilty, which was set aside by the Apex Court. In the facts of the present case, the final report submitted by the police clearly indicated that the death was not on account of throttling, but was due to the injury caused on her pelvic cavity. As held in Willie (William) Slaney (supra), no prejudice seems to have been caused to the accused on account of such a mistake in the charge. As already stated in Basavaraja (supra), the entire prosecution case was that she was burnt alive, whereas the Doctor's evidence indicated that she died due to asphyxia as a result of smothering. The said case had been decided on its own facts and cannot be relied upon, in the facts of the present case. Hence we are of the view that the mistake or omission in the charge framed by the Court, has not resulted in the accused not Crl.A.No.850/2011 31 knowing about the actual cause of death of the deceased, and not getting an opportunity to defend the prosecution case. Hence no prejudice has been caused to him due to the mistake committed by Court.
16. Having found so, the question to be considered is whether the circumstantial evidence available in the case has been proved by the prosecution in order to find the accused guilty.
17. The prosecution had relied upon the following circumstances:
i) That the accused had an affair with the deceased.
ii) That the deceased was seen in the nearby vicinity on the date on which the deceased was found missing.
iii) That the accused himself had shown the place where the dead body was hidden.
iv) That the articles belonging to the deceased was recovered on the statement of the accused under Section 27 of the Evidence Act.
v) That the cause of death was due to the injury sustained to the pelvic cavity of the deceased. Crl.A.No.850/2011 32
18. Learned counsel for the appellant argued that the presence of the accused in or near the scene of occurrence on the fateful day is not proved. PW8, whose evidence is relied upon by the Court below, had only stated that the accused was seen talking to the deceased near the temple. There is no evidence to prove his presence in the scene of crime. The recovery is bad in law and is not compliance with Section 27 of the Evidence Act. The statement given by the accused cannot be treated as one leading to the recovery of the articles. It is also argued that during the course of trial, three statements of additional witnesses were recorded and they were also examined before Court to prove that it is, at the instance of the accused, that the body was exhumed, which is an absolutely wrong procedure that has been adopted by the prosecution. He relied upon Athul Rao v. State of Karnataka and another [2017 (2) KLD 529 (SC)]. In the said case, though a case was registered against the accused, for offences under Sections 417, 465, 468 and 471 of the I.P.C, no charge was framed for the offence under Sections 497, 498 and 306 I.P.C. Later, a private complaint was filed by the husband of the victim alleging that the accused was liable to be tried for Crl.A.No.850/2011 33 offences under Sections 497, 498 and 306 of IPC. Accused filed a petition for quashing the private complaint filed under Section 482 Cr.P.C. before the High Court which was allowed. High Court, however, granted liberty to the husband of the victim to apply before the Trial Court seeking for further investigation with the observation that it would be necessary for the Trial Court to direct further investigation in respect of allegations made by the husband for the offences under Sections 497, 498 and 306 I.P.C. The Trial Court dismissed the said application, but the High Court allowed the same. The question was, whether after framing the charges and taking cognizance, it is open to the Magistrate to direct further investigation either suo moto or on an application filed by the complainant/informant. The Apex Court allowed the appeal and observed that the High Court committed manifest error in interfering with the discretionary order passed by the Trial Court. The Trial Court had found that the allegations in the complaint were investigated from all angles and charges were already framed against the accused. However, it was further opined that there was no need for further investigation and the evidence disclose charges under Sections 497,498 and 306 I.P.C, Crl.A.No.850/2011 34 additional charges in that behalf could be framed against the appellant at any stages of the trial.
19. First, we shall consider how the prosecution has adduced evidence in the case.
20. PW1 is the brother of deceased. He gives a narration of what happened on the fateful day of 07/04/2000 after his sister was found missing. According to him, they made enquiries, but she could not be found. Accordingly, his father had given a complaint Ext.P1 on 08/04/2000 to the Police Station. He identified the signature of his father in Ext.P1. He further identified the accused and he deposed that he knew the accused, since he was working as a Goldsmith with his neighbour Renjith. The deceased was in love with the accused. On coming to know about it, about six months back, he had talked to the accused and requested him not to continue the relationship, failing which the accused was threatened that they will chop his hands and legs. Thereafter, accused was not seen for the work. On enquiry it was understood that he had stopped the work pursuant to a quarrel. When his sister was found missing, he had a doubt and this fact was mentioned to the Police also. He had also come to know that Crl.A.No.850/2011 35 on the date on which the deceased went missing, on enquiry at Mekkavil temple, it was informed that somebody saw the accused and the deceased talking near the temple. He also identified her dress MO1 and MO2, her bangle MO3, the pebble chain she was wearing as MO4 and MO5 the chappel which she was wearing. He also stated that, at the time of death, she was only 16 years and on the 41st day of her demise his father committed suicide as he was suffering from severe mental depression.
21. PW2 is a person who knew the accused. She deposed that, in April 2000 on a particular day when she was about to have her lunch, accused was coming in the opposite direction from east. She asked the accused from where he was coming and she was informed that the accused was going to the house of Renjit. She also identified the accused. She further deposed that at the time when she saw the accused, he was wearing a pant and shirt and he had a bag on his shoulders. She identified MO9, the bag of the accused. She further deposed that the deceased was her neighbour. During cross-examination, Ext.D1 contradiction was marked. In the earlier statement given to the Police, she denied having stated that she had come to know about Crl.A.No.850/2011 36 the missing of the deceased on the next day. She also deposed that normally the accused was seen at the house of Renjit and the accused was seen in that place for the first time.
22. PW3 is a person who knew the deceased. He deposed that there is a bye-road on the southern side of his house. On a Friday, just before the death of the deceased, he saw her carrying a bag walking through the said pathway which was near the place where she was found dead. She was seen immediately after 11.00 in the morning. She was wearing a blue colour churidar. He identified MO1 and MO2.
23. PW4 is a person who knew the accused. He is running a barber shop in the area. The accused used to come to his shop. He also knew the deceased. He knew that the deceased was missing. On the day when she was missing, the accused had come to his shop. He combed his hair, sat there for five minutes and left the place. He came to the shop at about 9.30 a.m. He did not see the deceased on the said day. He knew that the deceased and the accused were having a friendship. He had mentioned to the father of the deceased on the day when the deceased was missing that the accused had come to his shop. He Crl.A.No.850/2011 37 was declared hostile and cross-examined by the Prosecutor. In a statement to the police, he stated that he saw Rekha proceeding towards north carrying a plastic bag and on seeing her, the accused went behind her. This portion was marked as Ext.P2. In further cross-examination, he deposed that he saw the deceased proceeding towards the north. After sometime, Biju had gone from the shop. He also stated that on seeing that, he knew that the intention of Biju was to follow her. He had given a statement earlier that he had not seen the deceased since he did not understand the question.
24. PW5 is the witness to the inquest report which was marked as Ext.P3. PW6 is the salesman of Maveli Store. He deposed that on 07/04/2000, at about 9.45 in the morning, the deceased had come to his Maveli Store for purchasing certain things. After purchase, she left. By 4.00 p.m in the evening, her father and brother had come to the shop and asked the Manager whether she had come to the shop to purchase the articles. Manager asked him and he told that she came and purchased certain articles and left. Thereafter, he had come to know that she died.
Crl.A.No.850/2011 38
25. PW7 is a grocery shop owner. He knew the deceased. He deposed that on 07/04/2000 by about 9.00 in the morning, deceased had come to the shop. She purchased 100 Mg of sesame oil. She purchased the oil for offering at the temple. She purchased the oil in a steel tumbler. If the oil is purchased for household purpose, it is normally bought in a bottle. He saw her standing near the bus stand. A day after, it was heard that she was missing. After 3 - 4 days, police had come for enquiry and he had stated these facts.
26. PW8 is an autorickshaw driver. He parked his vehicle at Vallachira junction on 07/04/2000. He was driving the autorickshaw of one Mohanan. He knew the deceased. He saw the deceased in the morning of 07/04/2000 at about 9.30 near the temple. The accused was talking to the deceased near the temple. He knew the accused. The accused had come there as a Goldsmith. Before he saw the accused and the deceased, he saw the deceased taking a bus towards Cherpu. In cross-examination, he was asked whether he had given a statement to the police that he had seen the accused and deceased in front of 'Hidumban' temple. He denied and the contradiction in the earlier statement Crl.A.No.850/2011 39 was marked at Ext.D2.
27. PW9 is a person who knew the accused. On 07/04/2000 morning, the witness was having gold work in the house of Devassy. Biju, the accused, had come to the said place in a bicycle. He kept the bicycle there. It was in between 10 and 10.30 a.m. The bicycle was marked as MO10. At the time when he went for lunch, he did not see the bicycle. PW10 is an attestor to the mahazar Ext.P4 for recovery of MOs 11 and 12. MO11 is a portion of the mud taken from the area and MO12 is an iron rod.
28. PW12 is the Doctor who conducted postmortem examination of the body of the deceased. Postmortem was conducted on 10/04/2000. At the relevant time, the body was in a state of early decomposition. The following were the ante- mortem injuries noted in Ext.P5 report.
"1. Lacerated perforating wound 1 x 1 cm with minimum infiltration over the anterior vaginal wall, through which the loop of small intestine was protruding out.
2. Fracture of sternum in between I and II costal cartilages with minimal infiltration at its inner aspect and copious infiltration at its outer aspect. No free quantity of blood in the Crl.A.No.850/2011 40 chest cavities.
3. Irregular laceration of hymen all around the vaginal orifice with minimal infiltration.
Flap dissection of the neck was done under bloodless field revealed normal neck structures.
Other external superficial injury/injuries if any around external respiratory passages and neck could not be detected due to peeling of cuticle. No injury to other skeletal parts."
He issued another statement showing final opinion about the cause of death. Ext.P6 is the report of the viscera. No poison was detected in the viscera and sand. Blood was detected in the vaginal smear and swab. Semen and spermatozoa were not detected in the vaginal swab and smear. Based on the chemical examination report and postmortem findings, he opined that the death was due to penetrating injury involving pelvic cavity. Injury Nos.1 and 3 mentioned in Ext.P5 could be produced by penetration of wooden stick or iron rod. Injury No.2 could be caused by forceful kicking. To a suggestion that, the small intestine can be protrude out through vaginal canal due to decomposition, the Doctor denied the same and explained that Crl.A.No.850/2011 41 the abdominal cavity and vaginal cavity is separated by soft tissues and under ordinary circumstances intestine will not protrude out through the vaginal canal. Doctor was thoroughly cross examined on the cause of death due to pelvic injury. He also admitted the fact that all neck structures were normal and there is no injury on the neck.
29. PW12 has issued Ext.P7 certificate to prove that the accused was capable of performing sexual activities. PW13 was the Revenue Divisional Officer and Sub Divisional Magistrate on 10/04/2000. He had given permission to conduct inquest after exhuming the body and to conduct postmortem. PW14 was the Village Officer on 10/04/2000. He had prepared Ext.P8 sketch relating to the scene of occurrence.
30. PW15 is the sister of the deceased. She knew the accused. The accused was coming for work in the house in front of their house. The accused and deceased were having an affair. She said she can identify the dress and ornaments of the deceased. She identified MOs 1 to 8 and also MO13. In her cross- examination, a suggestive question was put that one year before the incident there was a talk between the accused and the Crl.A.No.850/2011 42 brother of the deceased and after that there was no affair between the accused and the deceased. Her answer was that they were told that the relationship came to an end and he was not coming for work in the nearby house.
31. PW16 is the Police Constable of the Cherpu police station as on 18/04/2000. He had produced the bicycle before the Circle Inspector of Police. Ext.P9 is the said mahazar. He identifies Ext.P9. He identifies MO10, the bicycle. PW17 is a signatory to Ext.P10 mahazar by which a pair of ear rings (jimikki) was recovered by the police at the instance of the accused from the house of Chandran. There was also a silver anklet. He being a Goldsmith, weighed it and it was having a weight less than 3 grams. The weight of the anklets is less than 20 grams. MO14 is the plastic cover. In the cover, there was a metallic bangle also which is marked as MO3, MO8 series is a pair of anklets, MO6 series is a pair of ear rings and MO7 is the wrist watch.
32. PW18 is the signatory to Ext.P11. He had signed Ext.P11 on 17/04/2000. He saw the accused with the police party. The accused had showed the police a building. The police and accused climbed the stairs and the accused had showed the Crl.A.No.850/2011 43 police a black bag, it was opened, there was a pant and shirt and a pair of chappals and a pearl chain. The police had taken recovery of the same. He identified the chain as MO4, MO9 bag, pants as MO15, shirt as MO16 and chappal as MO5 series.
33. PW19 was the Headmistress of CNN Girls High School, Cherupu during 2001-2002. She proves Ext.P12, the extract of admission register of the deceased maintained by the School. As per the School register, the date of birth of the deceased was 11/05/1982. PW20 was the Assistant Sub Inspector of Police of Cherpu police station on 08/04/2000. He has recorded the complaint Ext.P1 given by Hariharan Achary, the father of the deceased. He registered Crime No.82/2000 under the caption man missing. Ext.P1(a) is the First Information Report.
32. PW21 is the mother of the deceased. She deposed that on 07/04/2000, she had asked the deceased to get a ration card from the neighbouring house and to buy ration articles from the Maveli Store at Thayamkulangara at Cherpu. She was also asked to buy oil on the way to Maveli Store for offering at the Mekkavu temple. She was given the container for buying oil. Even after 11 a.m, the deceased did not come back. PW21's Crl.A.No.850/2011 44 husband had come back by around 12 noon. She informed him that their daughter has not come until then. He pacified her stating that she will come within a short time. He went after having lunch. After some time, her son had come for having lunch. She informed the matter to her son also. He thereafter went to his father and informed him. Both of them went to the Maveli store and made enquiry and they were informed that she had already left after purchasing the articles. Thereafter, enquiries were made in the house of friends and relatives. But they did not get any information. Thereafter, father and brother of the deceased went to the police station and a complaint was given. The deceased was having a relationship with the accused who was working as a Goldsmith in Padmini's house. Padmini's son Renjith was having gold work. She identified the accused. She also identified the articles belonging to the deceased along with the other material objects namely the cover she had taken as MO14, her under garment MO19 etc.
33. PW22 was the Police Constable of the Cherpu police station on 09/04/2000. He deposed that P.C 3783, one Balakrishnan was having night patrol duty on the said date. On Crl.A.No.850/2011 45 09/04/2000 evening by 5 p.m, the accused was summoned for questioning at the police station. Before 8.00 p.m on the said date, the accused informed them that he committed murder of the deceased and the body was hidden in a trench near a compound at Parakovil. Sub Inspector of Police, himself and Balakrishnan went to the said place along with the accused. When they reached the road on the south western side of Sakthi Tile company, accused showed them a compound which was not being properly maintained and was full of forest growth. He told them that he had buried her in the said ground. They stopped the vehicle. All of them got down, one Jayaprakash and Shaji came along with them. Sub Inspector of Police asked them to provide some light. They brought a petromax. At the instance of the accused, they proceeded towards the eastern side of the said compound. The accused showed a place where there were a lot of waste materials. He told them that he had buried her in that place. Sub Inspector of Police asked the accused to remove the waste. When the waste was removed, they saw the left shoulder, hair and dress. Sub Inspector of Police, therefore, asked Jayaprakashan to call the father of the deceased. Hariharan Crl.A.No.850/2011 46 Achari came and identified the body. He left crying. The body was covered with a brown colour midy. He identified the same as MO13. He and PW34 were asked to guard the area. Next day, at about 10 a.m, Circle Inspector of Police, Sub Inspector of Police, Revenue Divisional Officer and the Police Surgeon had come to the scene of occurrence. The body was exhumed and they went back to the police station.
34. PW23 was a Police Constable of Cherpu police station on 10/04/2000. He proves having taken custody of MO1, MO2, MO17, MO18 and MO19 which were taken by the Revenue Divisional Officer at the time of inquest. He had entrusted the same to the Circle Inspector of Police. PW24 was the Sub Inspector of Police of Cherpu police station on 09/04/2000. He deposed that the accused was summoned for questioning. On questioning, he admitted to have killed the deceased and she was buried at a place known as Parakovil. He had gone along with the accused. Since it was dark, he asked for a petromax. As identified by the accused, some of the earth was removed. They found a portion of the shoulder, the scene was guarded, came back to the police station, arrested the accused and charge was framed under Crl.A.No.850/2011 47 Section 302 and 201 IPC. Ext.P13 is the report submitted by PW24 before Court.
35. PW25, Jayaprakash, deposed that the police party had come to the locality where the deceased was buried. He provided a petromax on the request of the police. He went and brought Hariharan Achari, who identified the deceased. He also identified MO13, the midy which was used for covering the dead body.
36. PW26 was the Circle Inspector of Police of Cherpu police station on 10/04/2000. He had taken over investigation on 10/4/2000, body of the deceased was exhumed, report was prepared and sent to the Revenue Divisional Officer, postmortem was conducted at the place of occurrence itself. The accused was arrested on 09/04/2000 at 7.45 p.m. Accused gave a disclosure statement. In the statement of the accused, he stated that the ornaments were hidden in a house where he was residing and he would show the place where he had hidden it. The accused took the police to building No.3/618 of Porathussery panchayat. He had taken a paper packet which was seized in the presence of witnesses after preparing a mahazar. Ext.P10 is the statement for recovery of the articles which is marked as Ext.P14. The packet Crl.A.No.850/2011 48 contained a pair of gold jimikki, a pair of silver anklets, handicraft bangles, golden colour watch and plastic cover. He identified the material objects. After postmortem, the body was given to the relatives for burial. Further investigation was conducted in the matter. On the basis of the statement of the accused, they had gone to a building at Poorakam and a black kit bag was recovered. Ext.P11 is the mahazar and the portion of the confession statement was marked as Ext.P16. He also marked Ext.P17, a disclosure statement recorded by the Sub Inspector of Police on 09/04/2000 wherein the accused had offered to show the place where the body was buried.
36. PW27 was the Circle Inspector of Police of Cherpu police station during the 2nd week of May 2001. He had questioned PW26 and other witnesses. He completed the investigation and filed the final report before Court. PW28 was the Circle Inspector of Police of Cherpu police station during 2009. Pursuant to the direction in Crl.M.P.No.34679/2009, he had conducted further investigation and had taken the deposition of CWs 14, 33, 35, 36, 37 and 41 and after completing the investigation, report was filed before Court. Crl.A.No.850/2011 49
37. In the 313 Cr.P.C questioning, the accused denied all the incriminating statements against him. He even denied having any relationship with the deceased. He denied having met the deceased on the fateful day. He also denied the recoveries and the fact that the body was exhumed, as pointed out by him. Though he had offered to file a statement, no such statement was filed. Certain omissions and contradictions have been pointed out by the defence with reference to the 161 statement given by the witnesses which are marked as Exts.D1 to D12 and D14.
38. Having gone through the entire evidence in the case, we are of the view that the following circumstances stand proved:
i) That there was a love affair between the accused and the deceased is proved by the evidence of PW1, PW15 and PW21.
From the cross-examination made by the defendant also, it is borne out that the relationship was admitted. But the relationship was broken when PW1 interfered in the matter and the accused was threatened.
ii) That the accused left the employment of Renjith is proved by the oral testimony of PW1. He states that six months before the incident, knowing about the relationship the accused Crl.A.No.850/2011 50 had with the deceased, he threatened the accused and thereafter, he was not seen in the locality.
iii) That the accused was seen in the locality on the fateful day on 07/04/2000 is clear from the evidence of PW's 4, 8 and 9.
(iv) That the deceased was seen talking to the accused in front of the temple is spoken by PW8. He saw them near the Peruvanam temple. However, Ext.D2 contradiction shows that while giving statement to the police, he has stated that they were seen near 'Hidumban' temple.
v) The deceased had gone to Cherpu to buy certain articles from the Maveli Store on the fateful day is proved by the evidence of PW21.
vi) That she purchased 100 grams of oil from a nearby shop at about 9 a.m is proved by PW7.
vii) That the deceased purchased the articles from the Maveli Store is proved by the evidence of PW6.
viii) The deceased was seen by PW3 by about 11 a.m on a Friday just before her death. She was carrying a bag with her. She was proceeding to the place where her body was later found.
ix) A man missing case was filed by the father of the Crl.A.No.850/2011 51 deceased on the basis of which crime was registered by the police on 08/04/2000. The family of the deceased had doubt regarding the accused and the accused was summoned to the police station.
x) The accused offered to show the place where the deceased was buried, which is evident from the deposition of PWs 22 and 24.
xi) The accused, along with police party, had reached the scene of occurrence. The accused showed the place where the body was buried. PW25 brought a petromax for light. When the debris and some earth was removed, they could see the shoulder of a human body. Evidence of PW22, PW23 and PW25 proves the said fact.
xii) PW25 was asked to fetch the father of the deceased. Father of the deceased came and identified the body.
xiii) PW22 along with another constable remained as guard duty and on the next day, in the presence of the Revenue Divisional Officer and other police party, the body was exhumed, Police Surgeon had come and postmortem was conducted.
xiv) Certain material objects belonging to the deceased Crl.A.No.850/2011 52 were recovered on the basis of disclosure statement of the accused which were marked as MO's 3 to 8. Recoveries were validly made and proved by witnesses. There is no valid explanation as to how the articles of the deceased came into the possession of the accused. Material objects of the deceased were proved by PW1, PW15 and PW21.
xv) The death of the deceased was on account of the injury caused to the pelvic region.
39. The fact is that the accused was having a relationship with the deceased. He was threatened by her brother. He was present in the area on the fateful day. PW8 had seen him talking with the deceased in front of the temple. The argument raised is that the presence of the accused in or near the deceased has not been proved and evidence of PW8 is not believable. During his cross-examination, a contradiction with an earlier statement was marked, which is in regard to the place where he had seen the accused and deceased talking to each other. In his deposition before Court, he has stated that he had seen them near Peruvanam temple at about 9.30 in the morning. He further deposed during cross-examination that on the eastern side of Crl.A.No.850/2011 53 Peruvanam temple there is Cherpu Panchayat Community hall and 'Hidumban' temple is on the northern side of the Community hall. He deposed that he does not know whether the 'Hidumban' temple is on the northern side of the Community hall. He was asked whether he could see what is happening on the immediate north of the Community hall and he said he could see. He denied having given a statement to the police that he had seen the accused and the deceased near 'Hidumban' temple. The said statement given to the police was marked as Ext.D2. He further deposed that when he returned to Pettah, he had informed the auto drivers in the locality that he had seen the deceased and accused near the 'Hidumban' temple. In the re-examination, he deposed that he had informed his driver friends that he had seen the deceased and accused near Peruvanam temple. PW8 is categoric when he states that he had seen the deceased and the accused near Peruvanam temple. But the defence tries to contradict his statement with reference to Ext.D2. But, no attempt had been made to indicate that the location of Peruvanam temple and 'Hidumban' temple were far away places. In his evidence, he stated that Peruvanam temple is near Cherpu Crl.A.No.850/2011 54 bus stand and is situated in an extent of 4 to 5 Acres. There is a wall having a height of 16 feet on all sides of the temple and there is entry on all four sides. The wall of Peruvanam temple is situated 150 metres on the east of Cherpu-Thriprayar road. Mekkavu temple is inside the Peruvanam temple. From the Thriprayar road, there is a wide pathway to Peruvanam temple. Mekkavu temple is 100 meters on the east of Cherpu-Thriprayar road. It is situated in an open area on the northern side of the pathway. He further states that the community hall is on the eastern side of Peruvanam temple and its compound and the 'Hidumban' temple is on the northern side of community hall. Apparently, the Peruvanam temple is a larger area and Mekkavu temple is within the said compound, and the Hidumban temple is also by the side of the community hall immediately to the north of the community hall. The community hall is on the eastern side of the Peruvanam temple compound. Therefore, the witness, while stating that he had seen the accused and deceased talking together at Peruvanam temple, it is not a far away place. Peruvanam temple seems to be in a larger compound and on the side of the community hall is the 'Hidumban' temple. The witness Crl.A.No.850/2011 55 also had clarified that he had not given a statement that he had seen the deceased and accused near 'Hidumban' temple. Further, from the evidence of PW4, it is clear that he saw the deceased immediately after the accused had left his shop. The deceased was going with a plastic bag towards north. He assumed that the accused had gone from the shop to follow the deceased. In cross-examination he stated that he had informed this matter to the father of the deceased on the same day when the deceased was missing. Further, PW9 also deposed that he had seen the accused between 10 a.m and 10.30 a.m in a bicycle. During cross-examination he stated that Biju was working with Renjith which is 2-3 Kms away from where the witness was working. However, when confronted with the earlier statement given to the police wherein he stated that he was working nearby, he did not give any answer. The said portion is marked as Ext.D3. Therefore, the presence of the accused on the date on which the deceased was missing is rather proved by the above witnesses and PW8 had even seen them talking together near the temple. We do not find any infirmity in the evidence of PW8, as the contradiction in his evidence is not material. Mother of the Crl.A.No.850/2011 56 deceased started looking for her since 12.00 noon. The family made enquiries at about 4 pm in the places where she had gone, in the houses of relatives, friends and ultimately they preferred a complaint before the police on the next day morning since she was missing from 11 a.m on 07/04/2000. The accused was summoned to enquire about the man missing case. It is, at the instance of the accused, the place where the body was buried was located. He is the person who had shown the police where the body was hidden. He had given statement to the Police on the basis of which articles belonging to the deceased were recovered.
40. In Harivadan Babubhai Patel v. State of Gujarat [(2013) 7 SCC 45], the Apex Court held at paragraphs 16 and 17 as under:
"16. The next limb of attack relates to the confessions made by the accused persons and the issue of leading to discovery of articles. It is submitted that the confession part is absolutely inadmissible and that apart, when the panch witnesses had not supported the panchnama, the recovery or discovery of the seized articles cannot be utilised against the appellant. There can be no shadow of doubt that the confession Crl.A.No.850/2011 57 part is inadmissible in evidence. It is also not in dispute that the panch witnesses have turned hostile but the fact remains that the place from where the dead body of the deceased and other items were recovered was within the special knowledge of the appellant.
17. In this context, we may usefully refer to A.N. Venkatesh v. State of Karnataka [AIR 2005 SC 3809] wherein it has been ruled that: (SCC p. 721, para 9) "9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found ... would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 [of the Evidence Act] or not...."
In the said decision, reliance was placed on the principle laid down in Prakash Chand v. State (Delhi Admn.). It is worth noting that in the said case, there was material on record that the accused had taken the investigating officer to Crl.A.No.850/2011 58 the spot and pointed out the place where the dead body was buried and this Court treated the same as admissible piece of evidence under Section 8 as the conduct of the accused."
41. Similarly, in an earlier judgment in Shanti Devi v. State of Rajasthan [(2012) 12 SCC 158], the Apex Court held at paragraph 17 as under:
17. The subsequent factum of recovery of the body of the deceased at the instance of the appellant was one other strong circumstance against the appellant in roping her involvement in the elimination of the deceased and thereby providing no scope for any other hypothesis other than her guilt in the killing of the deceased. The other recoveries made from the body of the deceased duly identified by PW 2 was yet another relevant circumstance to show that the deceased was none other than the father of PW 2 and husband of PW 1.
42. The fact that the accused had shown the places where the body of the deceased was recovered is a very strong circumstance against him which proves his involvement in the elimination of the deceased and thereby providing no scope for Crl.A.No.850/2011 59 any other hypothesis other than the guilt of the accused.
43. Under Section 26 of the Evidence Act, confession by the accused while in custody of police cannot be treated as a proof against him. However, as per Section 27 of the Act, which is like a proviso to Section 26, when any fact is deposed by the accused based on which information, the discovery is effected, so much of such information as it relates distinctively to the facts discovered can be proved. It is settled law that for the application of Section 27, from the statement, only those components of portion which were immediate to the cause of discovery would be legal evidence and the rest of it must be rejected. The argument raised is that none of the recoveries made by the police amounts to recovery in terms of Section 27 of the Evidence Act. Section 27 of the Evidence Act permits proof of so much of the information which is given by persons accused of an offence when in the custody of a police officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. Evidence would show that on the basis of the statement given by the accused, the police party was taken to a building near to the house of one Vellattuveettil Narayanan. They Crl.A.No.850/2011 60 reached the terrace through the stair case. The accused took a black kit bag and handed over to PW26. Ext.P11 is the mahazar and P16 is the relevant portion of the disclosure statement. MO9 bag, MO15 pants, MO16 shirt, MO5 series chappals and MO4 pearl chain were recovered as per Ext.P11 mahazar. MO4 and MO5 are the pearl chain and chappals which the deceased was wearing at the time of the incident. Ext.P17 is the extract of the disclosure statement given by the accused to the Sub Inspector of Police on 09/04/2000. In Ext.P17, he had stated that the body of the deceased was buried in a compound at Parakkovil and he would show the place where the dead body is buried. PW26 has proved the aforesaid statement. In his evidence, PW26 has stated that the accused was arrested by the Sub Inspector of Police on 09/04/2000 at 7.45 p.m. The accused gave a disclosure statement stating that he had concealed the ornaments of the deceased in his house. They reached his house. He took a paper packet which was hidden on the western side of the room. Ext.P10 is the mahazar and the statement is Ext.P14. The items were marked as MO6 series, MO8, MO3, MO7 and the plastic cover is marked as MO14. On a perusal of the evidence of PW26, Crl.A.No.850/2011 61 we do not think that there is any infirmity in the said evidence to discard the recovery of the valuables belonging to the deceased. Under such circumstances, his complicity in the crime is clear. He does not explain how the material objects belonging to the deceased were recovered from his possession. He is the only person who would know what happened to the deceased after 11 a.m.
44. One another argument raised is that the Court below was not justified in directing further investigation in the matter. But it is relevant to note that Court, having permitted further investigation, no objection had been taken in the matter at the relevant time. It is submitted by the learned Government Pleader that the evidence was already on record, but it was not produced and it is, in the said circumstances, an application was filed seeking for permission for further investigation. The Court below, having allowed the same and the trial being completed on the basis of the said evidence as well, we do not think that the same could be a reason to discard the evidence adduced by the additional witnesses.
Crl.A.No.850/2011 62
45. In the light of the aforesaid factual situation and the enormity of evidence available in the case, we do not think that the appellant had ventilated any grounds to interfere with the judgment. The punishment given is justifiable under the circumstances and there is no reason to interfere with the conviction or sentence.
The appeal is dismissed.
(sd/-) (A.M.SHAFFIQUE, JUDGE) (sd/-) (P.SOMARAJAN, JUDGE) jsr True Copy P.S to Judge