Jyothish Lal vs State Of Kerala on 11 February, 2020

[Cites 13, Cited by 0]

Kerala High Court

Jyothish Lal vs State Of Kerala on 11 February, 2020

The appellant is the first accused in S.C.No.1072/2014 of the Additional Sessions Court-I, Mavelikara. By judgment dated 16.10.2015, the learned Additional Sessions Judge convicted and sentenced the appellant to undergo imprisonment for life and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo rigorous imprisonment for a further period of two years for the offence punishable under Section 302 of IPC and to undergo simple imprisonment for one month under Section 341 of IPC.

2. The appellant along with one Bibin.B.Koshy as second accused were chargesheeted by the Circle Inspector of Police, Mavelikara in Crime No.1092/2014 for the offences punishable under Sections 341,302,392 r/w Section 34 of IPC. The trial court convicted the first accused for the offences under Sections 341 and 302 of IPC and sentenced thereunder. The first accused Crl.A.No.203 of 2016 :-3-:

was found not guilty of the offence under Section 392 of IPC. The second accused was found not guilty of the offences under Sections 341, 392 and 302 r/w Section 34 of IPC. Thus, there were two accused in the Sessions Case, out of which the second accused was acquitted and the first accused preferred this appeal challenging the conviction and sentence imposed by the trial court.

3. The present case involves a gruesome murder. The victim -Omanakuttan Pillai was found lying dead by the northern side of the public road near St.George Orthodox Church, Mullikulankara by about 12 pm on 5.8.2014. Omanakuttan Pillai had been working in Gulf for a considerable long period of time.

He had returned to his native place at Mavelikara and started a hotel under the name and style 'Sreedevi Hotel' at Kayamkulam. Omankuttan Pillai initially married PW4 Omana Amma and three children were born in the wedlock. PW3 Mani Amma, who is the sister of Omana Amma, had an estranged relationship with her Crl.A.No.203 of 2016 :-4-:

husband in her first marriage. Hence, she started living at the residence of PW4. While so, Omanakuttan Pillai had developed intimacy with PW3 Mani Amma and PW1 Arun Kumar was born in her relationship with Omanakuttan Pillai. PW1 Arun Kumar, PW3 Mani Amma and PW4 Omana Amma resided together without any dispute at the residence of Omanakuttan Pillai happily. Every day, Omanakuttan Pillai used to go to the hotel in the early morning by about 5 am and used to come back by about 10 to 10.30 pm in the night. PW3 Mani Amma used to join her husband to conduct business by noon. They used to come back together in his scooter in the night.

4. The prosecution case in brief is that on 5.8.2014, the first accused as rider and the second accused as pillion rider rode scooter bearing Regn.No.KL-31D/6106 through the Public Road in front of St.George Orthodox Church, Mullikkulangara, in furtherance of their common intention to commit murder and robbery of Omanakuttan Pillai, blocked the scooter ridden by Crl.A.No.203 of 2016 :-5-:

Omanakuttan Pillai bearing Regn.No.KL-31G/3897. Both the accused got down from the scooter and while so, second accused caught Omanakuttan Pillai by his hands and held towards the back and wrongfully restrained him. The first accused stabbed Omanakuttan Pillai with MO8 knife on the abdomen above and below the navel region and committed theft of Rs.11,250/-, a purse and a mobile phone. Omanakuttan Pillai succumbed to the injuries sustained by him. The accused were aware that Omanakuttan Pillai used to come back from his hotel with money by about 10.30 pm every day.

5. PW1 Arun Kumar lodged Ext.P4 First Information Statement before PW29-the Additional Sub Inspector of Police, Mavelikara Police Station. Pursuant thereto, PW29 registered Ext.P30 FIR for the offence punishable under Section 302 of IPC on 6.8.2014.

6. On 6.8.2014 at 10.45 a.m., PW33 the Circle Inspector of Police, Mavelikara conducted inquest on the body of the Crl.A.No.203 of 2016 :-6-:

deceased by Ext.P5 inquest report. Column Nos.11 and 12 in Ext.P5 are pertaining to the apparent cause of death and if by violence apparently, by what weapons. It is stated therein that Omanakuttan Pillai died on account of injury sustained on the abdomen with a sharp edged weapon. After conducting the inquest, the deadbody was sent for postmortem examination. On 12.8.2014 at 10 p.m. PW33 arrested the first and second accused from the Railway Station at Chengannur in accordance with law. At the time of arrest, PW33 conducted body search of accused 1 and 2 and recovered MO12 Nokia Mobile phone and Rs.320/- from the first accused and MO12 Samsung mobile phone and Rs.120/- from the second accused respectively by Ext.P36 mahazar. On 13.8.2012, PW33 visited the place of occurrence and prepared Ext.P16 mahazar. During investigation, it was disclosed that besides Section 302 I.P.C., the accused committed the offences punishable under Sections 341, 392 read with Section 34 of IPC. Hence, Ext.P44 report was filed Crl.A.No.203 of 2016 :-7-:

before the court incorporating the aforesaid penal provisions.

7. PW33 filed an application before the court seeking police custody of the first and second accused. On 24.8.2014, Police custody was granted as requested. On being questioned in Police custody, the first accused confessed by way of Ext.P10(a) that the knife was kept below the railway track on the northern side of the residence of PW8-Jayan. Accordingly, as led by the first accused, PW33 went through the road on the northern side of the Petrol Bunk and reached the southern side of the railway track. The accused took a plastic cover from there and inside the same, MO8 knife was seen. PW33 had prepared Ext.P10 mahazar in which PW10 is a signatory. On the same day, on the basis of Ext.P12(a) confession statement, MO4 purse was recovered by PW33 in which PW12 was an attestor. PW33 stated that as led by the first accused, he went to Punnamudu Junction and recovered MO4 purse. Inside MO4 purse, PW33 located Ext.P1 passport size photograph of the deceased, Ext.P2 O.P.ticket and Crl.A.No.203 of 2016 :-8-:

Ext.P3 receipt issued by the Kayamkulam Municipality belonging to the deceased respectively. On the same day, the first accused further confessed by way of Ext.P13(a) that the mobile phone was broken into pieces and thrown away near to the residence of Praveen and he would show the same if he was taken to the said place. Based on Ext.P13(a), PW33 proceeded to the place as led by the accused and recovered MO5 series as per Ext.P13 mahazar. PW33 questioned the witnesses, recorded their statements, conducted inquest on the deadbody, collected call details of A1, A2,PW7,PW8,PW11,PW24, questioned the officers concerned of the mobile phone company, recorded their statements, arrested the accused, based on the confession statement of the first accused, seized MO8 knife under Ext.P10 seizure mahazar, recovered MO4 purse belonging to the accused under Ext.P2 seizure mahazar, recovered MO5 pieces of the mobile phone of the deceased. PW34, his successor-in-office continued the investigation. He had submitted the material Crl.A.No.203 of 2016 :-9-:

objects for chemical examination and after verifying the investigation of PW33, PW34 laid charge sheet before the Judicial First Class Magistrate Court-I, Mavelikkara.

8. The learned Magistrate received the final report as C.P.No.63/2014 and committed the case to the Sessions Court, Alappuzha. The learned Sessions Judge took cognizance of the offences under Sections 341,302,392 r/w 34 of IPC and numbered the case as S.C.No.1072/2014 and made over to the Additional Sessions Court-I, Mavelikkara for trial and disposal.

9. During the course of trial, the prosecution examined PWs. 1 to 34 and marked Exts.P1 to P50 and MOs.1 to 15 on the side of the prosecution. On closing the evidence of the prosecution, the accused 1 and 2 were questioned under Section 313(1)(b) of Cr.P.C. Their defence was one of total denial.

10. The learned trial Judge did not deem it fit and proper to acquit the accused under Section 232 of Cr.P.C. Hence the accused was called upon to enter on his defence. However, no Crl.A.No.203 of 2016 :-10-:

defence evidence was adduced.

11. Heard the learned counsel for the appellant Sri.M.R.Nandakumar and Sri.S.U.Nazar, the learned Senior Public Prosecutor for the State.

12. Challenging the evidence recorded by the learned Sessions Judge, the learned counsel for the appellant submitted that the appellant was convicted solely on the strength of circumstantial evidence. According to the learned counsel, in a case where the accused was convicted based on circumstantial evidence,the motive behind the alleged offence must be proved beyond doubt. It is argued that in the instant case, the motive alleged by the prosecution was robbery, but nothing was robbed from the possession of Omanakuttan Pillai as alleged. It was disclosed that the money with him was safely in the bag kept by the deceased. Thus, it was submitted that if the motive of the alleged offence was to rob the money, they could very well have searched for cash and would have left the place with the money. Crl.A.No.203 of 2016

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The fact that no cash was recovered from the first and second accused after their arrest is a relevant circumstance, it has been contended. It is further submitted that PW7 Reshma is not a reliable witness and her integrity is also doubtful. The alleged recovery under Section 27 of the Evidence Act is also disputed.

13. On the other hand, Sri.S.U.Nazar, the learned Senior Public Prosecutor submitted that the prosecution has proved that the accused wrongfully restrained Omanakuttan Pillai and murdered him. According to the learned Public Prosecutor, the trial court found the first accused not guilty of the offence under Section 392 of IPC and he was acquitted thereunder. The learned Public Prosecutor further submitted that MO8 knife was recovered in accordance with Section 27 of the Evidence Act and PW22-the Doctor, who conducted the postmortem examination on the body of the deceased, testified that the injuries found on the abdomen could be caused by MO8 weapon shown to her. MO8 knife was identified by PW7 Crl.A.No.203 of 2016 :-12-:

Reshma, who was maintaining an illicit relationship with the first accused. The learned Public Prosecutor further submitted that the court below had taken into account of the other circumstances including recovery of MO4 black purse, MO12 mobile phone, call data records and other relevant circumstances to convict the accused for the offence under Section 302 of the IPC.

14. The fact that the victim Omanakuttan Pillai died as a result of homicidal injuries sustained to him on 5.8.2014 at about 10.30 p.m. is not in dispute. PW1 Arun Kumar deposed that on 5.8.2014 in the night, his sister's mother-in-law was laid up. There was no electricity on that day. His sister Anitha Kumari had two small children. As they were on very cordial terms, PW3 Mani Amma though maintained a live-in-

relationship with Omanakuttan Pillai, used to stay at the residence of his sister to help her. Every day Mani Amma used to come back together with Omankuttan Pillai in the night. As Crl.A.No.203 of 2016 :-13-:

his sister was unwell, PW3 Mani Amma was expected to be dropped at the residence of Anitha Kumari. His father did not return even after the usual time. Hence, PW4 Omana Amma became panic and enquired at the residence of Anitha Kumari over phone. On being enquired, it was informed that Omanakuttan Pillai left her house sometime back. However, he did not return home. PW4 Omana Amma was in a hurry to find out Omanakuttan Pillai. She left home with a torch light to find out Omanakuttan Pillai. PW1 followed her. When he reached 50 metres west to St.George Church, Vellikulangara, he saw a gathering on the northern side of the road. He found the scooter of his father parked on the side of the road and his father lying unconscious at that place. He rushed to the spot, took his head and placed on his lap and called him aloud. However, there was no response from him. He realised that his father was no more. He could not locate any injury or any other signs at that time, which would probabilise an assault on him. Crl.A.No.203 of 2016

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He was under the bona fide impression that Omanakuttan Pillai might have suffered a silent heart attack and collapsed at that place. Suddenly, it started raining very heavily and they took the body of Omanakuttan Pillai to the house and laid him on a mat.

15. PW3 Mani Amma stated that as usual, she came along with her husband in his scooter. On the fateful day, she was dropped at the house of Anitha Kumary as her mother-in-

law was laid up. After some work, when she was about to retire, a phone call came from the house and she came to know that her husband did not reach home though he had left earlier. She heard a commotion on the road near their house. She rushed to the spot along with Anitha Kumari and saw the deadbody lying on the side of the road. She too did not find any blood or other injury on the body of Omanakuttan Pillai.

16. PW4 Omana Amma stated that she waited for her husband for a very long time on the fateful day. She felt sleepy and slept for sometime. Suddenly, she woke up and found that Crl.A.No.203 of 2016 :-15-:

her husband had not reached home as usual. She enquired at the residence of his daughter and came to know that her husband had left earlier. She informed PW1 and on further enquiry, located the deadbody of Omanakuttan Pillai by the side of the road.

17. When the deadbody of Omanakuttan Pillai was brought to the residence of the deceased, PW1's sister Anithakumari and PW3 Mani Amma reached the place. When his mother touched the deadbody of his father, she felt something protruding on the abdomen. Immediately, they have removed the rain coat worn by Omanakuttan Pillai on that day. Then they saw a part of the intestine protruding out. They took the body to the Mavelikkara Government Hospital where the doctor declared as brought dead. PW1 identified MOs.2,3 and 6 wearing apparels of the deceased.

18. PW5 Binesh Kumar had occasion to see the deadbody initially when he was going to his house after having Crl.A.No.203 of 2016 :-16-:

supper from the residence of a friend. On the way, he saw a body and a scooter lying on the side of the road. He stopped the vehicle and called his friend. In the mean while, PW1 and PW4 came to the spot and identified the body of Omanakuttan Pillai. PWs.1,3,4 and 5 were under the bona fide impression that Omanakuttan Pillai suffered a massive heart attack while he was riding the scooter on the date of occurrence. It is significant to note that there was no electricity on that day. They had identified the deadbody with the help of a handy torch. After sometime, it started raining heavily. Hence, they took the deadbody to their home. On removal of the rain coat worn by Omanakuttan Pillai on that rainy day, they found his intestine protruding out. They could not locate blood either on the shirt or on the body or on the rain coat presumably for the reason that it was raining heavily on that day. In the circumstances, they were in search of an ambulance. However, they were unable to locate an ambulance for the reason that deadbody Crl.A.No.203 of 2016 :-17-:

would not be carried unauthorisedly in an ambulance. Though the circumstance was not favourable to them, they managed to carry the deadbody to the Government Hospital at Kayamkulam and where PW32 confirmed the death of Omanakuttan Pillai.

19. PW22, Dr.Liza John working as Assistant Professor and Deputy Police Surgeon in the Department of Forensic Medicine, T.D.Medical College, Alappuzha conducted autopsy on the body of the deceased and issued Ext.P21 Postmortem Certificate. PW22 opined that death was due to penetrating incised wound sustained to the abdomen. She testified that injury No.2 was fatal. According to her, the stab had pierced the mesentery. One litre of blood and blood clots were found available in the abdominal cavity and haematoma was seen in the posterior light compartment. Under the circumstances, according to PW22, blood would not come out and the internal bleeding was sufficient to cause death. She further opined that in the case on hand, the death had not occurred instantly, ie., Crl.A.No.203 of 2016 :-18-:

within seconds. Antemortem injury No.2 is stated as follows:-

"Gaping incised penetrating wound almost vertical 4x2.5cm front of abdomen entering in to the peritoneal cavity, both ends sharply cut, its upper end being 1cm below umbilicus in midline (on approximation the injury measured 4.2x0.3cm). The track of the wound terminated into the posterior abdominal wall by traversing the anterior abdominal wall muscles for a total minimum depth of 14cm entering into the abdominal cavity by piercing the mesentery of jejunum making a spindle shaped clean cut 1.2x0.5cm, 20cm distal to the deuodeno jejunal junction , and a corresponding incised wound behind involving the root of mesentery; there was ethic layer of retroperitoneal haematoma (13x9x3cm) overlying the left kidney. The peritoneal cavity contained 1000ml of fluid blood and blood clots."

20. PW22 examined MO8-knife. The measurements of the knife were once again taken in open court and confirmed that MO8 knife was likely to have pierced the body resulting the death of Omanakuttan Pillai. On the strength of Ext.P5 inquest report and Ext.P21 postmortem certificate, it is clear that Omanakuttan Pillai suffered a homicidal death.

21. PW7 Reshma, aged 19 years, was examined by the prosecution to prove mainly three points. Firstly, the accused Crl.A.No.203 of 2016 :-19-:

was present at the scene of occurrence on the fateful day. Secondly, she had developed an illegal intimacy with the accused and had several occasions to see MO8 knife with the accused on his loin and thirdly, immediately after the occurrence, the first accused made an extra judicial confession to her admitting that he had done away with Omanakuttan Pillai.

22. PW7 testified that she used to call the first accused over mobile phone, which was given by him as a gift. According to her, she obtained a SIM card from her friend PW19 Preetha. The SIM card actually belonged to PW18 Priya, who is the sister of PW19. PW7 stated before court that Priya was having a SIM card with mobile No.9744802175. PW18 Priya stated that the above SIM card was given to PW7, who is one of her close friends by her sister Preetha. PW18 Priya stated that Ext.P18 application was submitted by her for taking mobile phone connection with SIM No.9744802175. According to her, the SIM card belonged to her and it was left in the house unused when Crl.A.No.203 of 2016 :-20-:

she got married.

23. On going through the evidence of PWs.7, 18 and 19, it is clear that though the mobile number 9744802175 stands in the name of Priya, the same has been used by PW7. Ext.P31 call data records would indicate that there were numerous calls both incoming and outgoing between the first accused and PW7. On being questioned, the first accused admitted that he was in love with PW7 for a long period. PW7 stated that in addition to frequent calls over phone, they used to meet after 10.30 p.m. at her residence. The first accused used to come to her house secretly in the night and she used to open the window and engaged in conversation with him. She admitted that while so, they used to touch their bodies with their hands. She further stated that she had seen MO8 knife with the first accused. Later, her family members came to know of the illicit relationship between the accused and PW7. Hence she had to discontinue the relationship for some time. Thereafter, according to her, her Crl.A.No.203 of 2016 :-21-:

family members arranged her marriage with another boy. Thus, the relationship came to an end. However, after six months, the first accused started calling her and the relationship between them had been restored and frequent calls between them and discrete meeting at night continued as before. She stated that on 5.8.2014, at 10.30 pm she saw the first accused for the last time. She reiterated that she had occasion to see MO8 knife with the accused on his loin on that day also. On that day, there was no electricity. Hence she asked the first accused to leave the place immediately. Then he rang her up. She did not take the call. Immediately, the first accused left the place. Though she made an attempt to call him again, there was no response from him. On that day, there was unusual commotion outside her house. Hence,she immediately called PW24 Rajamma, who is the mother of the first accused. PW24 told her that the first accused did not reach home. Thereafter, she called her parents. Her parents informed her that Omanakuttan Pillai died due to Crl.A.No.203 of 2016 :-22-:

heart attack.

24. PW7 testified that after some time, the first accused contacted her over phone. The first accused told her that when he came to her house with a friend, he also had an argument with a person on a scooter and the first accused stabbed him. After sometime, the first accused again called her and informed her that Omanakuttan Pillai died due to heart attack. She further stated that he did not call her again on that day. However, he called her on the next morning and informed her that Omanakuttan Pillai died due to stabbing. The first accused called her at noon and enquired about the situation prevailing in that area. She replied that Police came to the house of Omanakuttan Pillai. According to her, in the evening the first accused called her from another number and told that he was at Thenkashi and had decided to stay away from the locality for two days.

25. On 10.8.2014, PW7 contacted PW24, who is the Crl.A.No.203 of 2016 :-23-:

mother of the first accused and requested her to come to nearby Lord Sastha's temple, for narrating the entire details and she went to the temple. To her surprise, the first accused was along with PW24 at that time and hence, she could not speak anything.

26. The prosecution heavily relied on the evidence adduced by PW7- Reshma. According to the appellant, PW7 was enticing him to get married. However, he rejected the proposal. Thus, according to the appellant, she had been holding a grudge against him. The learned counsel for the appellant submitted that her integrity is doubtful for the simple reason that even after having her marriage fixed with another boy, she was repeatedly meeting the appellant during the odd hours of night and exchanging intimate moments with him. The learned counsel for the appellant submitted that this is quite unbecoming on the part of a lady, who is already engaged with another man for marriage.

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27. To ascertain the genuineness of the oral evidence let in by PW7, it is necessary to peruse the oral evidence of PW24, who is none other than the mother of the first accused. PW24 stated that her son- the first accused was employed in a bar hotel. According to her, she had mobile connection in her name. She submitted Ext.P25 application for mobile connection along with Ext.P25(a) copy of her identity card before the franchisee of M/s.Idea Cellular Limited. According to her, she received two numbers from the service provider as 9656649414 and 9526511058 respectively of which she was using 9526511058 frequently. She also stated that her son was using mobile No.9656649414. She admitted that her son had developed an intimacy with PW7. According to her, this fact was communicated to her by her son. She further admitted that PW7 used to call her frequently. According to her, her son stopped calling her after her marriage was fixed with another boy. She further stated that before the marriage was fixed, PW7 Crl.A.No.203 of 2016 :-25-:

used to visit her house when she was not at home. She further admitted that on the date of death of Omanakuttan Pillai, PW7 called her over phone in the night.

28. Although PW24 turned hostile to the prosecution, she admitted the above facts when she was examined in chief before court. Considering the evidence let in by PW24, who is none other than the mother of the first accused, we are of the view that the evidence of PW7 cannot be discarded mainly on the ground that she is a woman of low virtues. It is a fact that she was in love with the first accused for a considerable long period of time. From the evidence of PW24, it is clear that PW7 used to visit her house when she was not at home. This would lead to the inference that the first accused was maintaining an illicit relationship with PW7. When examined before court, PW7 stated that she liked the first accused though her marriage was fixed with another boy. Her attitude towards life may not be morally right. However, her evidence cannot be discarded on Crl.A.No.203 of 2016 :-26-:

moral grounds in the light of the evidence adduced by PW24.

29. Over and above, Ext.P31 call data records would eloquently prove that there are numerous calls between PW7 and the first accused every day to prove their close association. The fact that they like each other is evident from the records. It is incorrect to judge the evidence tendered by PW7 on the touch-stone of moral standards.

30. PW8 Jayan was one of the close friends of the first accused. According to him, on 5 th August, between 10.30 and 10.45 pm, the mother of the first accused contacted him over phone and enquired as to whether the first accused was with him on that day. He replied that he did not see the first accused on that day and promised to get in touch with him over phone. Though he called him over phone, the first accused did not pick up the phone. After sometime, the accused called him back. When he informed that his mother was in search of him, the accused became irritated. Thereafter, he confessed that Crl.A.No.203 of 2016 :-27-:

when he and one Bibin Koshy went to see PW7 Reshma, Bibin Koshy quarreled with a stranger and hence he was constrained to stab the aforesaid person. The next day he again called him and ascertained his presence at home. After some time, he came to his house and took a white cover from the footrest saying that the cover contained a knife using to stab the stranger as is stated by him the day before. PW8 was reluctant to keep the knife in his possession and expressed his reluctance to keep the same. However, he entered the room. He came out and left the house in his bike. After two days, he again contacted PW8 in his new number and confessed that Bibin Koshy and PW8 were at Thenkasi and he was in need of money for which PW8 replied that he had no money to give. PW8 identified MO1 cover where the knife was kept. PW8 also proved Ext.P9 application for the issuance of mobile phone connection. The number is 8157091137.

31. PW2, who was conducting a bakery at Laha Crl.A.No.203 of 2016 :-28-:

Junction, Punnamoodu stated that he had seen the accused along with another person on 5/8/2014 by about 10.30 pm. PW2 had prior acquaintance with the first accused. PW2's evidence is corroborated by the evidence of PW7 that the first accused was present on 5.8.2014 in the area where the occurrence took place as alleged by the prosecution.

32. It is true that extra judicial confession as such is a weak piece of evidence which alone cannot be the basis of conviction. However,it can also be taken as a corroborative piece of evidence, when other circumstances are also against the accused, to lend assurance for the prosecution case. In the case on hand, it is proved that the mobile phone used by the accused was in the name of his mother PW24. Ext.P31 call data records produced by PW30 the service provider would indicate that the conversation over the phone between the first accused and PW7 was in continuation of the meeting at 10.30 pm. on 5.8.2014. After hearing the commotion in the area, naturally PW7 doubted Crl.A.No.203 of 2016 :-29-:

involvement of the first accused. She came to know that Omanakuttan Pillai was no more. The first impression she received was that Omanakuttan Pillai died of due to heart attack. However, the first accused called her and informed that when he came to her house with a friend, he also had an argument with a person on a scooter and the first accused stabbed him. Immediately thereafter a second call came and while so, PW7 informed that Omanakuttan Pillai died due to heart attack. Then the first accused told her not to tell anyone. Thereafter, the first accused made a third call to know the situation prevailing in that area. PW7 told him that Police visited the place. Immediately, the first accused replied that he was at Thenkasi.

33. In the case on hand, there is no direct confession by the accused that he had wrongfully restrained and murdered Omanakuttan Pillai. However, his conversation with PW7 would indicate that he was panic immediately after the occurrence and Crl.A.No.203 of 2016 :-30-:

he had left the station. In the case on hand, the conversation between PW7 and the accused is relevant to point out the conduct of the accused immediately after the occurrence. The information was made before PW7, who was admittedly known to him for a very long time. The circumstances would indicate that the first accused was having physical relationship with PW7. To whom else the first accused to approach for assistance being in a situation which he himself invited and trusted upon. Merely based on inferences, it is not possible to hold that the accused confessed to PW7 that he had wrongfully restrained and murdered Omanakuttan Pillai. There is no direct confession as such. However, the circumstances would indicate that the above calls were made by the accused as testified by PW7 which would reveal his conduct immediately after the occurrence.

34. PW11, who is another friend of the first accused, is examined to prove extra judicial confession made by the first accused. PW11 had completed Engineering course at Crl.A.No.203 of 2016 :-31-:

Veeraswamy Chettiar Engineering College at Thenkasy. According to him, on 6.8.2014 at about 9 am, the first accused called him over telephone and requested to come somewhere near to Government Hospital, Mavelikkara. He went there and saw the first accused. PW11 was closely related to the first accused and under normal circumstances, the former would have been offered a helping hand and protection to the first accused in need. As the first accused was having some problem at Mavelikkara, he wanted to escape himself from Mavelikkara. Though PW11 asked the reason therefor, the first accused refused to disclose the same to him. The first accused was expecting favours from PW11. Then PW11 told him that he had a friend by name Sarath, who was living in a rented house at Thenkasi. He asked the first accused to go to Thenkasi and stay with Sarath for sometime. Accordingly, the first accused and his friend left for Thenkasi. When PW11 contacted Sarath at Thenkasi, Sarath had been discouraging him. However, he Crl.A.No.203 of 2016 :-32-:

expressed his inability and told him that the first accused and his friend had already left for Thenkasi.

35. In the case on hand, the extrajudicial confession made by the first accused has been sought to be proved through the oral evidence of PW7-Reshma,PW8 Jayan and PW11 Tony Varghese. The aforesaid witnesses are closely related to the first accused and under normal circumstances, the former would have been offered a helping hand, protection and assurance of safeguarding the interest of the first accused. Accused and PW7 Reshma had been in love with each other for a considerable long period of time. PW8 Jayan was a very close friend of the first accused. Extrajudicial confession was made in this case immediately after the occurrence. During cross-examination, it was not brought out that PWs.7 and 8 were forced to make confession under undue influence, coercion or pressure. Learned counsel for the first accused contended that primarily, an extrajudicial confession touching the complexity of an Crl.A.No.203 of 2016 :-33-:

accused person is given either to a person in confidence or to a person in authority to save the maker of the statement from the clutches of law. It is contended that PW7 was neither a woman, who was confident to the first accused nor did she in anyway repose confidence on the first accused, as the relationship between PW7 and the first accused was not intimate. Thus, it is argued that even assuming that the statement of the first accused could be given the status of an extra judicial confession, the same is a weak piece of evidence against the maker of the statement.

36. It is true that extrajudicial confession as such is a weak piece of evidence, which alone cannot be the basis of conviction. However, it can also be taken as a corroborative evidence, when other circumstances are also against the accused, to lend assurance for other evidence. In this case, extrajudicial confession was made by the accused initially before PW7, thereafter before PWs.8 and 11, who are admittedly Crl.A.No.203 of 2016 :-34-:

known to him for a very long time. Under the circumstance, the confession made by the first accused is nothing, but natural course of events. The first accused was aged 22, when the occurrence took place. When a youngster is confronted with difficult circumstances in life, and need the assistance of his friends, it is quite natural that he would confess to his closest friends to tide over the difficult situations. Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person, who has no reason to state falsely and to whom it is made in the circumstances, which lends assurance to other evidence in this case. We have perused the evidence tendered by PWs.7,8 and 11. We are satisfied that the evidence tendered by PWs.7, 8 and 11 are unbiased. The decision in Ajay Singh v. State of Maharashtra, [AIR 2007 SC 2188] deals with the question regarding the claim of extrajudicial confession as follows:-

Crl.A.No.203 of 2016

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"7. We shall first deal with the question regarding claim of extra judicial confession. Though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial confession, Court has to satisfy that the same was voluntary and without any coercion and undue influence. Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and noteven remotely inimical to the accused. Where there is material to show animosity, Court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. It is not invariable that the Court should not accept such evidence in factual words as claimed to have been spoken are not reproduced and the substance is given. It will depend on circumstance of the case. If substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused, evidence can be acted upon even though substance and not actual words have been stated. Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused. That would rule out possibility of erroneous interpretation of any ambiguous statement. If word by word repetition of statement of the case is insisted upon, more often than not evidentiary value of extra judicial confession has to be thrown out as unreliable and not useful. That cannot be a requirement in law. There can be some persons who have a good memory and may be able to repost exact words and there may he many Crl.A.No.203 of 2016 :-36-:

who are possessed of normal memory and do so. It is for the Court to judge credibility of the witness's capacity and thereafter to decide whether his or her evidence has to be accepted or not. If Court believes witnesses before whom confession is made and is satisfied confession was voluntary basing on such evidence,conviction can be founded. "

37. In view of the principles cited above, it is settled position of law that, extrajudicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of crime along with other evidence in this case. The trial court relied on the oral evidence of PW7,PW8 and PW11 in this regard.

38. The first accused had fled from Mavelikkara to Thenkasi in Tamil Nadu after the murder and had hidden in a place not known to them properly. The first and second accused had managed to stay at Thenkasi utilising A1's friendship with PW11-Tony Varghese. Tony Varghese presents a false case that the first accused is coming to see his fiancee and obtained permission from PW27 Sarathchandran. PW27 Sarath Chandran Crl.A.No.203 of 2016 :-37-:

is a total stranger to the accused or unconnected with the crime allegedly committed by him. There is absolutely no reason to implicate PW27 in this case. Thus, it has been proved beyond reasonable doubt that first accused absconded after the incident which is a relevant conduct under Section 8 of the Evidence Act Sidhartha Vashisht@Manu Sharma v. State(NCT of Delhi) (AIR 2010 SC 2352].

39. In addition to the above evidence, prosecution proved the recoveries effected allegedly made on the basis of confession given by the first accused. The first accused was arrested on 12.8.2014 at Chengannur Railway Station by PW33. It is the case of PW33 that the first accused gave Ext.P10(a) confession and on the strength of Ext.P10(a), as led by the first accused, PW33 went through the road and recovered MO8 knife on the southern side of the railway track on the base of a vatta tree. The accused took a plastic cover and inside the same MO8 knife was concealed. PW33 further stated that as led by the Crl.A.No.203 of 2016 :-38-:

accused, he recovered MO4 purse from Punnamoodu Junction and the place where the road ends to east culvert No.107 and from inside the compound, which is bounded by boundary walls. Inside the said purse, PW33 found Ext.P1 Passport size photograph, Ext.P2 O.P.card issued from Ebenezer Hospital and Ext.P3 receipt issued by Kayamkulam Municipality. No explanation was offered as to how Exts.P1,P2 and P3 were found in the custody of the accused. Exts.P1 to P3 were identified by PWs.1,3 and 4, who are the close relatives of deceased Omanakuttan Pillai. PW12 is an attestor to Ext.P12 recovery of purse. He stated that he saw the recovery of purse and Exts.P1 to P4 respectively.

40. PW10 Kochukunju identified MO9 plastic bag which contained MO8. PW8 Jayan declined to keep MO9 at his residence. PW10 deposed that he was residing 3 kms. away from the place where the recovery was made. In the circumstances, the only probability as noted by the trial court is Crl.A.No.203 of 2016 :-39-:

that the first accused has abandoned MO8 near to the house of PW8 Jayan. Further, in Ext.P15 FSL report, item No.1 knife, item No.2 raincoat, Items Nos.3 and 4 shirt and dhothi, human blood were found. On analysis, the blood found in item Nos.1,3 and 4 were identified to be of Group 'O' which is the blood group of the deceased.

41. Recovery of MO8 knife from the place as shown by the accused immediately after the occurrence is an added factor to prove the occurrence. In the facts of the case, recovery of MO8 knife and the purse cannot be doubted. Thus, analysed, the submission made by the learned counsel for the appellant that the prosecution failed to prove that the appellant was in possession of MO8 on his arrival at the place of occurrence leads us unimpressed and accordingly we repel the same.

42. It is clear from the evidence let in by PW22 Dr.Liza John that the appellant inflicted several injuries on the deceased and Omanakuttan Pillai succumbed to the injuries. The injuries Crl.A.No.203 of 2016 :-40-:

sustained to the deceased are sufficient to cause death in the ordinary course of nature. It is a fact that the prosecution was not able to adduce evidence to sustain a conviction for the offence under Section 392 of IPC. The first accused was acquitted for the said offence. Though the second accused was acquitted for the offences charged against him, the State has not filed an appeal against the judgment. Similarly, no appeal was preferred by the victim challenging the acquittal of the first accused under Section 392 of IPC. The trial court has rightly found that the bodily injuries found on the deceased were intentionally inflicted by the accused and that the injuries were sufficient to cause death in the ordinary course of nature. The manner in which MO1 was used to inflict injuries on the body of the deceased, rules out the possibility that the appellant used MO8 only to overpower the deceased. MO8 was applied deep in the body of the deceased and as a result of which, his intestine had protruded out. This would lead to the inference Crl.A.No.203 of 2016 :-41-:

that the first accused did the overt acts solely with the intention of causing the death of the victim. This categorical opinion of the Doctor, who conducted the autopsy, was not assailed in cross-examination. More importantly, the injuries sustained to the deceased were sufficient in the ordinary course of nature to cause death. There is nothing to show that the injuries were caused accidentally or negligently. The motive was to commit robbery.

43. We are satisfied from the forensic evidence that the deceased was assaulted by the appellant on his return from his hotel at Kayamkulam. We are also satisfied that the appellant was carrying MO8 safely with him from the beginning on the date of occurrence with an intention to cause the death of the victim. PW7 Reshma identified MO8 knife as that of the first accused. MO8 was deeply applied inside the abdomen. It is a matter of common knowledge that serious injuries sustained to the deceased was not only capable of stopping the metabolism Crl.A.No.203 of 2016 :-42-:

but also preventing circulation in the remaining organs. Considering the gravity of the injuries sustained to the deceased, there is no scope for discussing the case from the point of having committed the offence due to the lack of knowledge on the part of the appellant or its consequences. The present case does not fall under any of the exceptions mentioned under Section 300 IPC, nor has the accused pleaded the exceptional circumstances during trial. The victim also succumbed to the injuries instantaneously due to the injury suffered by him.

44. In conclusion, we are of the view that the judgment and order of conviction passed by the trial court was based upon proper appreciation of evidence and circumstances found established by the trial court in accordance with the guidelines formulated by the Apex Court in Sharad Birdhi Chand Sarda v. State of Maharashtra[1984 AIR 1622]. Crl.A.No.203 of 2016

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Resultantly, we uphold the judgment of conviction and order passed by the court below. The appeal is dismissed.

Sd/-

A.HARIPRASAD, JUDGE sd/-

N.ANIL KUMAR, JUDGE MBS/

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