Kerala High Court
Balu vs State Of Kerala on 26 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 26TH DAY OF AUGUST 2021 / 04TH BHADRA, 1943
CRL.A NO.418 OF 2021
AGAINST THE JUDGMENT IN S.C.NO.441/2002 DATED 09.01.2004
OF THE COURT OF THE III ADDITIONAL SESSIONS JUDGE (ADHOC)
FAST TRACK COURT NO.I, THRISSUR.
CRIME NO.174/2000 OF IRINJALAKUDA POLICE STATION, THRISSUR.
APPELLANT/ ACCUSED:
BALU, AGED 40 YEARS, S/O.MANIKYAN,
THONDAYAR STREET, PNAYAMKOTT, MOORTHY, AMBALAPURAM,
P.O., TANJORE, LCT NO.17604, CENTRAL PRISON,
TRICHY - 620 020, TAMIL NADU.
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SRI.B.DEEPAK
SRI.VISHNU CHANDRAN
SRI.RALPH RETI JOHN
SRI.APPU BABU
SMT.SHIFNA MUHAMMED SHUKKUR
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM -682 031.
BY SMT.S.AMBIKA DEVI,
SPL.GOVT.PLEADER (ATROCITIES AGAINST WOMEN & CHILDREN)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.08.2021, THE COURT ON 26.08.2021 DELIVERED THE FOLLOWING:
Crl.A.No.418/2021 - 2 -
"C.R"
K.Vinod Chandran & Ziyad Rahman A.A., JJ.
------------------------------------------
Crl.Appeal No.418 of 2021
------------------------------------------
Dated this the 26th August 2021
JUDGMENT
Vinod Chandran, J.
The lure of gold has begotten more crimes than
any reasonable man would think; often snuffing out
innocent lives. 'Crime doesn't pay' is an adage which the
deviants, the desperate and some desperadoes pay little
heed to. Here we have a migrant labourer, eking out his
living from odd jobs, snatching a valuable gold chain from
the body of a housewife and drowning her; presumably in a
bid to avoid identification.
2. The appeal is of the year 2021 and we took it
out of turn since we take up matters giving priority to
those convicted and imprisoned earliest. The appeal itself
was filed with a delay of 6300 days and the appellant has
been languishing in jail from 2001 onwards. The case set
up by the prosecution rests entirely on the circumstances
attempted to be proved through seventeen witnesses, twenty
documents and twelve material objects. The defence is
total denial and the learned Counsel for the accused
asserts his right to silence and picks holes in the
evidence led by the prosecution.
3. Sri. John S. Ralph, learned Counsel appearing
for the appellant, submits that though the cause of death
is undoubtedly drowning, whether it is accidental or
forceful, has to be proved by the prosecution and the
evidence led falls short of absolute proof of the victim
having been forcefully drowned. Even if the chain
snatching is found to be established, there is absolutely
nothing to find an intention to kill or even a knowledge
that the act of chain snatching would lead to the death of
the victim. The dead-body did not show signs of any
struggle which would have been evident from the presence
of algae and water plants on the body of the victim; which
were totally absent. The prosecution also failed to carry
out a diatom test. The injuries found on the body of the
victim indicates an accidental drowning. The recovery is
not one under Section 27 of the Evidence Act, since the
facts allegedly disclosed, was already known to the
police. The police knew about the sale of the chain which
led to the arrest of the accused. Only that knowledge
could have led to A2 and through him A1, who is the
appellant before this Court. The learned Counsel relies on
Sukhbinder Singh v. State of Punjab [(1994) 5 SCC 152] to
urge that Section 27 cannot be used to rediscover an
already discovered fact. The confession is a joint one and
the Investigating Officer [I.O] does not speak about the
exact words used by the confessor. Mohd. Abdul Hafeez v.
State of A.P. [AIR 1983 SC 367] and Thampi Sebastian v.
State of Kerala [1988 (1) KLT 247] are relied on to
further buttress the above contention. The pledging of
gold ornaments even if proved, was by A2 and not A1. On
the authorship of the confession, reliance is placed on
Ramachandran v. State of Kerala [2009 Cri.LJ 168]. There
is no proper identification as held mandatory in Vayalalil
Girishan v. State of Kerala 2016 Crl.LJ 1724. There was no
Test Identification Parade [TIP], which is fatal since
many of the witnesses have no prior association with A1.
The identification of the ornaments carried out first in
Court is a weak piece of evidence as held in Pannayar v.
State of Tamil Nadu [AIR 2010 SC 85]. The over anxiety of
the prosecution to nail the accused is evident from the
identification of MO2 gold ring by PW2 which was purchased
by the accused to which PW2 is not privy.
4. The learned Counsel would in conclusion refer
to Sections 299, 300, 302 and 304 IPC to contend that if
at all the snatching of a chain is proved as against A1,
there can only be a pure and simple 'culpable homicide'
alleged against him as defined under Sec.299 and not
murder under Sec.300. The learned Counsel argues that
Sec.299 is distinct and different from murder as defined
under Sec.300 and is akin to manslaughter, which falls
short of murder as understood in the United States of
America. The appellant's refusal to offer an explanation
has been projected by the prosecution, for which reliance
is sought to be placed on Section 106 of the Indian
Evidence Act. Section 103 and 106 of the Evidence Act
are no longer applicable, the enactment being a
pre-constitutional law, after the Constitution with
Article 20(3) came into existence.
5. Smt. S. Ambikadevi, learned Special Government
Pleader (Atrocities against Women & Children) points out
that FIR was registered against A1 to A4; A1 for murdering
the woman and stealing her valuable chain, A2 and A3 for
receiving stolen property and A4 for purchasing such
stolen property. A4 was discharged and the trial of A2 and
A3 was carried out earlier, since A1 was absconding and
his trial was split up. A2 was convicted and A3 was
acquitted. The case was first registered under Section 174
Cr.P.C as an unnatural death and later converted into
Section 302. Both A1 and A2 absconded from the locality
and A2 was arrested from Pollachi, while A1 from
Thanjavur. The circumstances proved, conclusively form an
unbroken chain, unerringly establishing the crime having
been committed by A1. The learned Special Government
Pleader would argue that murder, as defined in Sec.300, is
culled out from what is defined under Sec.299; with a
specific intention or knowledge as defined in 'Firstly' to
'Fourthly' of Sec.300. In the present case, A1 is a person
who was intermittently engaged for odd jobs in the
residential property of the victim. After snatching the
chain worn by the victim, he killed her by deliberate
drowning. The circumstances would establish that A1 killed
the victim, presumably to avoid identification. He was
seen going from the scene of occurrence and later along
with a local, A2, pledged the gold ornament. The watches
and rings purchased out of the proceeds of the pledge of
the stolen ornament were seized from the accused. The
appeal deserves to be dismissed, urge, the Prosecutor.
6. Before we look at the appeal, we notice a very
disconcerting fact of the readable copies not having
transcribed the original deposition fully. We cannot find
fault with the persons who copied it, since the originals
are undecipherable. The readable copies must be
transcribed with the aid of the Judicial Officer, who
recorded the evidence, which in every circumstance, may
not be possible. Or there should be a transcription
carried out, immediately after the recording of evidence,
which again would be time-consuming. We cannot but notice
that Sec.276 Cr.P.C. requires the evidence of each
witness; in all trials before a Court of Sessions to be
taken down in writing, either by the presiding Judge
himself or by his dictation in open Court; as the
examination proceeds, in the form of a narrative or as the
presiding Judge deems fit in the form of question and
answer. We are also informed by the Registry that this
Court has issued two circulars, Circular No.1 of 2016 and
Circular No.3 of 2017, respectively dated 04.04.2016 and
07.08.2017, directing evidence to be recorded as envisaged
in Order XVIII, Rules 4 & 5 of the Code of Civil
Procedure, 1908 and Sec.274, Sec.275 and Sec.276 of the
Code of Criminal Procedure, 1973. Such evidence on
dictation could also be typed out in a computer so as to
enable reading out the same immediately on the evidence of
each witness being concluded for the day or finally. It is
hence expedient that the Registry provides for computers
inside the Court Hall for the purpose of dictation to be
taken down as the examination of a witness proceeds. The
Circulars above-mentioned need to be again communicated to
the trial courts. We expect the Registry to take further
steps to comply with these directions immediately.
7. We would also, at the outset, look at the
arguments raised by the learned Counsel for the appellant
on the definition of culpable homicide and murder. As also
the argument that right of the accused to remain silent,
rendered otiose Sec.103 & 106 of the Evidence Act; at
least in the case of an accused. According to us, Sec.299,
culpable homicide takes within its ambit and scope,
murder, as defined under Sec.300. Sec.299 has three limbs,
causing death by an act first, with the intention of
causing death, second, with an intention to cause bodily
injury, which is likely to cause death and the third, with
the knowledge that the act is likely to cause death.
Sec.300 has four limbs, firstly, Secondly, Thirdly and
Fourthly. The first limb of 299 is analogous to the first
limb of Sec. 300, i.e., an act with the intention of
causing death resulting in such death; which is murder.
The second limb of Sec.299 branches out into two limbs and
corresponds to Secondly and Thirdly of Sec.300, both of
which refers to the intention of causing bodily injury.
Secondly of Sec.300, where bodily injury is caused with
such intention, is coupled with the knowledge of the
offender that it would be likely to cause the death of the
person on whom the harm is caused. As far as Thirdly of
Sec.300, the bodily injury caused with such specific
intention, should be sufficient in the ordinary course of
nature to cause death; ie: the injury will most probably
and in every probability cause death. Fourthly of Sec.300,
takes in the gravest of the offences under the third limb
of Sec.299, which is done by a person with the knowledge
that such act is so imminently dangerous that it must, in
all probability, cause death or such bodily injury, as is
likely to cause death; without any excuse for incurring
the risk of causing death or such injury, not necessarily
to a particular person. Hence what corresponds to the
first limb of Sec.299 is firstly of Sec.300 and the second
limb of Sec.299 branches out to Secondly and Thirdly under
Sec.300. The requirement in these limbs is the intention
of the perpetrator of the crime in causing death or such
bodily injury, which he knows is likely to cause death or
that the injury caused, is sufficient in the ordinary
course of nature to cause death. Fourthly of Sec.300 comes
within third limb of Sec.299, and also qualifies to be
murder. The punishment in these instances is under
Sec.302. 'Culpable homicide not amounting to murder',
appears under Exception 1 to 5. Though the intention is
very much there, there is something; an external force or
cause; more overwhelming and compelling, which tends to be
the reason for the intention to arise or for harbouring
such an intention. Then the punishment is under the first
limb of Sec.304. Wherein also the intention to cause death
or bodily injury likely to cause death would be the
standard of mens rea.
8. The doubt arises as to what remains to be
punished under the second limb of Sec.304. As we noticed,
Fourthly of Sec.300 does not encompass the entire gamut of
the third limb of Sec.299. What is covered by Fourthly of
Sec.300 is the knowledge that the act committed would be
so imminently dangerous, that in all probability death
would be caused or such bodily injury would be inflicted,
as is likely to cause death, and the act is also done
without any excuse for incurring the risk of causing death
or such injury. This is the most heightened knowledge that
the perpetrator has and there is a lot more with lessor
ramifications, which still remains under the third limb of
Sec.299; which would be punishable under the second limb
of Sec.304. It goes without saying that the acts committed
under Firstly to Fourthly would be punishable under
Sec.302, termed 'culpable homicide of the first degree'.
The Exceptions 1 to 5, 'culpable homicide not amounting to
murder' is punishable under the first limb of Sec.304;
being of the 'second degree'. Any death caused with the
knowledge that it is likely to cause death; wherein there
is no element of the heightened knowledge; of the act
being imminently dangerous as to cause death in all
probability, is 'culpable homicide of the third degree'
punishable under the second limb of Sec. 304.
9. We respectfully notice the judgment of the
Hon'ble Supreme Court in State of AP v. Rayavarapu
Punnayya [(1976) 4 SCC 382], on which we place reliance
for the above interpretation. We extract paragraph 11 to
22 of the aforesaid decision:
"11. The principal question that falls to be
considered in this appeal is, whether the offence
disclosed by the facts and circumstances
established by the prosecution against the
respondent, is "murder" or "culpable homicide" not
amounting to murder.
12. In the scheme of the Penal Code, "culpable
homicide" is genus and "murder" its specie. All
"murder" is "culpable homicide" but not vice-
versa. Speaking generally, "culpable homicide"
sans "special characteristics of murder", is
"culpable homicide not amounting to murder". For
the purpose of fixing punishment, proportionate to
the gravity of this generic offence, the Code
practically recognises three degrees of culpable
homicide. The first is, what may be called,
"culpable homicide of the first degree". This is
the greatest form of culpable homicide, which is
defined in Section 300 as "murder". The second may
be termed as "culpable homicide of the second
degree". This is punishable under the first part
of Section 304. Then, there is "culpable homicide
of the third degree". This is the lowest type of
culpable homicide and the punishment provided for
it is, also, the lowest among the punishments
provided for the three grades. Culpable homicide
of this degree is punishable under the second part
of Section 304.
13. The academic distinction between "murder"
and "culpable homicide not amounting to murder"
has vexed the courts for more than a century. The
confusion is caused, if courts losing sight of the
true scope and meaning of the terms used by the
legislature in these sections, allow themselves to
be drawn into minutae abstractions. The safest way
of approach to the interpretation and application
of these provisions seems to be to keep in focus
the keywords used in the various clauses of
Sections 299 and 300. The following comparative
table will be helpful in appreciating the points
of distinction between the two offences.
14. Clause (b) of Section 299 corresponds with
clauses (2) and (3) of Section 300. The
distinguishing feature of the mens rea requisite
under clause (2) is the knowledge possessed by the
offender regarding the particular victim being in
such a peculiar condition or state of health that
the internal harm caused to him is likely to be
fatal, notwithstanding the fact that such harm
would not in the ordinary way of nature be
sufficient to cause death of a person in normal
health or condition. It is noteworthy that the
"intention to cause death" is not an essential
requirement of clause (2). Only the intention
of causing the bodily injury coupled with the
offender's knowledge of the likelihood of
such injury causing the death of the particular
victim, is sufficient to bring the killing within
the ambit of this clause. This aspect of clause
(2) is borne out by Illustration (b) appended to
Section 300.
Section 299 Section 300
A person commits Subject to certain
culpable homicide if exceptions culpable
the act by which the homicide is murder if the
death is caused is act by which the death is
done - caused is done -
INTENTION
(a) With the (1) With the intention
intention of causing of causing death; or
death; or
(b) With the (2) With the intention
intention of causing of causing such bodily
such bodily injury as injury as the offender
is likely to cause knows to be likely to
death; or cause the death of the
person to whom the harm
is caused; or
(3) With the intention
of causing bodily
injury to any person
and the bodily injury
intended to be
inflicted is sufficient
in the ordinary course
of nature to cause
death; or
KNOWLEDGE
(c) With the (4) With the knowledge
knowledge that the that the act is so
act is likely to imminently dangerous
cause death that if must in all
probability cause death
or such bodily injury
as is likely to cause
death, and without any
excuse for incurring
the risk of causing
death or such injury as
is mentioned above.
15. Clause (b) of Section 299 does not
postulate any such knowledge on the part of the
offender. Instances of cases falling under clause
(2) of Section 300 can be where the assailant
causes death by a fist blow intentionally given
knowing that the victim is suffering from an
enlarged liver, or enlarged spleen or diseased
heart and such blow is likely to cause death of
that particular person as a result of the rupture
of the liver, or spleen or the failure of the
heart, as the case may be. If the assailant had no
such knowledge about the disease or special
frailty of the victim, nor an intention to cause
death or bodily injury sufficient in the ordinary
course of nature to cause death, the offence will
not be murder, even if the injury which caused the
death, was intentionally given.
16. In clause (3) of Section 300, instead of
the words "likely to cause death" occurring in the
corresponding clause (b) of Section 299, the words
"sufficient in the ordinary course of nature" have
been used. Obviously, the distinction lies between
a bodily injury likely to cause death and a bodily
injury sufficient in the ordinary course of nature
to cause death. The distinction is fine but real,
and, if overlooked, may result in miscarriage of
justice. The difference between clause (b) of
Section 299 and clause (3) of Section 300 is one
of the degree of probability of death resulting
from the intended bodily injury. To put it more
broadly, it is the degree of probability of death
which determines whether a culpable homicide is of
the gravest, medium or the lowest degree. The word
"likely" in clause (b) of Section 299 conveys the
sense of "probable" as distinguished from a mere
possibility. The words "bodily injury ... sufficient
in the ordinary course of nature to cause death"
mean that death will be the "most probable" result
of the injury, having regard to the ordinary
course of nature.
17. For cases to fall within clause (3), it
is not necessary that the offender intended to
cause death, so long as the death ensues from the
intentional bodily injury or injuries sufficient
to cause death in the ordinary course of nature.
Rajwant v. State of Kerala (AIR 1966 SC 1874) is
an apt illustration of this point.
18. In Virsa Singh v. State of Punjab AIR
1958 SC 465 Vivian Bose, J. speaking for this
Court, explained the meaning and scope of clause
(3), thus (at p. 1500):
"The prosecution must prove the following
facts before it can bring a case under Section
300, 'thirdly'. First, it must establish quite
objectively, that a bodily injury is present;
secondly the nature of the injury must be
proved. These are purely objective
investigations. It must be proved that there
was an intention to inflict that particular
injury, that is to say, that it was not
accidental or unintentional or that some other
kind of injury was intended. Once these three
elements are proved to be present, the enquiry
proceeds further, and fourthly it must be
proved that the injury of the type just
described made up of the three elements set
out above was sufficient to cause death in the
ordinary course of nature. This part of the
enquiry is purely objective and inferential
and has nothing to do with the intention of
the offender."
19. Thus according to the rule laid down in
Virsa Singh case of even if the intention of
accused was limited to the infliction of a bodily
injury sufficient to cause death in the ordinary
course of nature, and did not extend to the
intention of causing death, the offence would be
"murder". Illustration (c) appended to Section 300
clearly brings out this point.
20. Clause (c) of Section 299 and clause (4)
of Section 300 both require knowledge of the
probability of the act causing death. It is not
necessary for the purpose of this case to dilate
much on the distinction between these
corresponding clauses. It will be sufficient to
say that clause (4) of Section 300 would be
applicable where the knowledge of the offender as
to the probability of death of a person or persons
in general -- as distinguished from a particular
person or persons -- being caused from his
imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of
the offender must be of the highest degree of
probability, the act having been committed by the
offender without any excuse for incurring the risk
of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges
that whenever a court is confronted with the
question whether the offence is "murder" or
"culpable homicide not amounting to murder", on
the facts of a case, it will be convenient for it
to approach the problem in three stages. The
question to be considered at the first stage would
be, whether the accused has done an act by doing
which he has caused the death of another. Proof of
such causal connection between the act of the
accused and the death, leads to the second stage
for considering whether that act of the accused
amounts to "culpable homicide" as defined in
Section 299. If the answer to this question is
prima facie found in the affirmative, the stage
for considering the operation of Section 300 of
the Penal Code, is reached. This is the stage at
which the court should determine whether the facts
proved by the prosecution bring the case within
the ambit of any of the four clauses of the
definition of "murder" contained in Section 300.
If the answer to this question is in the negative
the offence would be "culpable homicide not
amounting to murder", punishable under the first
or the second part of Section 304, depending,
respectively, on whether the second or the third
clause of Section 299 is applicable. If this
question is found in the positive, but the case
comes within any of the exceptions enumerated in
Section 300, the offence would still be "culpable
homicide not amounting to murder", punishable
under the first part of Section 304, of the Penal
Code.
22. The above are only broad guidelines and not
cast-iron imperatives. In most cases, their
observance will facilitate the task of the court.
But sometimes the facts are so intertwined and the
second and the third stages so telescoped into
each other, that it may not be convenient to give
a separate treatment to the matters involved in
the second and third stages."
The aforecited decision was noticed with approval by a
recent decision of a three-Judge Bench of the Hon'ble
Supreme Court in Shatrughna Baban Meshram v. State of
Maharashtra [(2021) 1 SCC 596]. We find no substance in
the argument raised by the learned Counsel for the
appellant on Sec.299 and Sec.300.
10. Now we come to the argument raised against
Sec.103 and Sec.106 of the Evidence Act juxtaposed with
Article 20(3) of the Constitution of India. The law
permits the accused to mount the box as a witness in two
situations. One, when he expresses his consent in writing
to so mounting the box for the sole purpose of disproving
the charges made against him under Sec.315 Cr.P.C. Two,
when he is an approver; granted pardon under Sec.306 or
Sec.307 Cr.P.C. The first situation does not militate
against Article 20(3), since it is intended only to
disprove the prosecution case and not to incriminate
himself and significantly it is a voluntary action without
the element of compulsion. Under Sec.306 & 307 Cr.P.C the
question of incrimination does not arise, since he has
already been granted a pardon. Sec.103 & Sec.106 also,
according to us, do not militate against the right
guaranteed under Article 20(3), to remain silent or rather
not to be compelled to incriminate himself.
11. The maxim 'nemo tenetur prodere seipsum' is
the centrepiece of the traditional account of the history
of privilege against self-incrimination as described by
John H. Langbein in his essay on 'The Historical Origins
of the Privilege Against Self-incrimination at Common Law'
appearing in Vol.92 Michigan Law Review:1047. The learned
author speaks of the transition from the early trials
where the norm was 'the accused speaks' in defence of
himself, without any aid of Counsel, to that of 'the
privilege to silence and against self-incrimination'. This
privilege, according to the learned author, is the
creation of the defence counsel and an artifact of the
adversary system of criminal procedure. The learned author
concludes that " ... the core value of the privilege, the
accused's right not to speak, presupposes an effective
right to have another speak in the accused's stead"(sic).
We need not further delve into the history, since the
principle is well entrenched in criminal jurisprudence
from the late 18th Century and is given voice in the
Constitution of India by Article 20(3).
12. We do not think that the privilege under
Article 20 (3), in any manner, affects the principle under
Sec.103 and Sec.132 of the Evidence Act. Sec.103 casts the
burden of proof as to any particular act on that person
who wishes the Court to believe its existence unless any
law provides such proof of fact to lie on any particular
person. Sec.132 provides that a witness would not be
excused from answering any question concerning a relevant
matter in issue, in a civil or criminal proceeding, on the
ground that the answer would directly or indirectly tend
to criminate such witness; by which the privilege stands
removed. The Proviso to Section 132 incorporates the
privilege under Article 20(3) and no such answer which
directly or indirectly tends to criminate the witness
would subject him/her to any arrest or prosecution or be
proved against him/her in any criminal proceeding; if
there is a compulsion in answering the question.
13. The Hon'ble Supreme Court in R.Dineshkumar
vs. State (2015) 7 SCC 497 quoted with approval from a
minority dissenting judgment in R vs. Gopal Doss ILR
(1881) 3 Mad 271 and made the following extract:
"... It seems to me that the legislature in India
adopted this principle, repealed the law of
privilege, and thereby obviated the necessity for
an inquiry as to how the answer to a particular
question might criminate a witness, and gave him
an indemnity by prohibiting his answer from being
used in evidence against him and thus secured the
benefit of his answer to the cause of justice, and
the benefit of the rule, that no one shall be
compelled to criminate himself, to the witness
when a criminal proceeding is instituted against
him. The conclusion I come to is that Section 132
abolishes the law of privilege and creates an
obligation in a witness to answer every question
material to the issue, whether the answer
criminate him or not, and gives him a right, as
correlated to that duty, to claim that that answer
shall not be admitted in evidence against him in a
criminal prosecution." (Gopal Doss case, ILR p.
287 per Muttusami Ayyar, J.)
Holding that "The rule against self-incrimination found
expression in Indian law much before the advent of the
Constitution of India [under Article 20(3)]"(sic-para43)
Nandini Satpathy vs. P.L.Dani (1978) 2 SCC 424 was quoted
wherein it was held that "The proviso to Section 132 of the
Evidence Act, in our opinion, embodies another facet of
the rule against self-incrimination."(sic). It was held in
R.Dineshkumar that:
"44. The proviso to Section 132 of the
Evidence Act is a facet of the rule against
self-incrimination and the same is a statutory
immunity against self-incrimination which deserves
the most liberal construction. Therefore, no
prosecution can be launched against the maker of a
statement falling within the sweep of Section 132
of the Evidence Act on the basis of the "answer"
given by a person while deposing as a "witness"
before a court".
14. However, it has to be emphasised that the
prohibition or protection does not apply when there is a
voluntary deposition made as in the case of an accused
offering himself to be examined as a witness; when he
would also have to subject himself to cross-examination.
What assumes significance is the compulsion, which element
is the crucial aspect both under the proviso to Sec. 132
of the Evidence Act and Art. 20(3) of the Constitution of
India. It requires to be stated that such compulsion need
only be one arising under the law and a summons issued,
would suffice to find that crucial aspect. True an
explanation offered would be voluntary and the protection
would not be available; which at first blush would appear
ambiguous, but not really so on closer scrutiny. Because,
a particular fact which is in the sole knowledge of the
accused, in the nature of an explanation, is in defence of
the accused and not to incriminate him. When the Court
concerned with the evaluation of evidence in a criminal
case looks for an explanation from the accused, it is
never intended to be used against the accused. The
explanation is in defence of the accused which, if not
offered, tends to be another circumstance in the chain of
circumstances pointing to the guilt of the accused; which
all the same cannot solely result in a conviction. In the
present case, the accused gave an explanation, under
Sec.313, for being in Thanjavur, from where he was
apprehended. The explanation was that he was informed of
the death of his mother, which he could have proved with
the production of the death certificate, without even
examining himself; which he failed to do. We find the
argument against Sec.103 and 132 of the Evidence Act to be
frivolous and on the facts of this case, without any
substance.
15. The FIS, Ext.P1 was at 5 p.m of 10.10.2000,
by PW1, the victim's husband's brother. The brothers are
neighbours and PW1's younger brother, PW2, the husband of
the deceased, was residing along with his wife, two
children and mother. PW1 was not the first to see the body
of the deceased. Another neighbour, Padmini, PW4, when she
went to the pond to wash clothes found a bundle of clothes
on its banks. Padmini then went to PW2's house and
enquired with his mother about his wife. PW2's mother,
PW3, along with PW4 went near the pond and raised an
alarm. Some neighbouring people gathered and one
Sudhakaran stepped into the water and took the body out of
the water and placed it on the banks of the pond. The
deceased was taken to the Taluk Headquarters Hospital,
Irinjalakuda, where she was declared dead. PW1 assumed
that the deceased slipped and fell into the water and
drowned.
16. PW1 deposed in tune with his statements
made to the police. He identified MO-1 chain which he
asserted; his sister-in-law always wore on her neck. In
cross-examination, he denied that the deceased died
accidentally, contrary to the FIS. We do not find any
inconsistency as such since, at the stage of FIS, PW1 was
not aware of what exactly happened and what he stated
about the cause of death was at best an intelligent guess.
17. PW2 is the husband of the deceased, who went
to work at 8.30 a.m. on the fateful day. PW2 saw A1 on his
way and A1 gestured that he was going towards the east, in
which direction PW2's house was. He spoke of A1 having
been engaged for work by him on the fateful day and also
that A1 used to frequently come to him for work. PW2 was
summoned home in the afternoon and on being informed about
the tragedy, he went to the hospital. He spoke of having
seen his wife's body and also noticed the absence of the
chain. MO1, Mo2, and MO1(a) - the chain, the ring and the
locket - were identified. The locket had the name 'Balu'
and the date '8.4.90' inscribed therein. In
cross-examination, he spoke of A1 having been earlier for
8 to 9 months, regularly engaged on a monthly salary. He
asserted that his wife knew swimming. PW3, the
mother-in-law spoke of having seen A1 at around 11-12 in
the noon. She heard the dog bark and when she inspected,
she saw the accused who moved away on seeing her. PW3 also
enquired with the deceased and was told that A1 had asked
for PW2 and demanded hundred rupees which she did not
give. PW3 and PW4 corroborate each other insofar as both
having gone together in search of the deceased, who had
gone to the pond to wash her clothes. Nearing the pond,
they saw the floating dress of the deceased, upon which
they raised an alarm. PW3 specifically said that when the
deceased's body was brought ashore, she rubbed the chest
of her daughter-in-law and she noticed the absence of the
chain. PW3 went near the dock and identified the accused.
She spoke of the accused being engaged regularly in her
house and even afterwards having come to her house
intermittently. In cross-examination, she admitted that
the deceased was wearing four bangles when her body was
brought ashore. Both PW3 and PW4 stated that the deceased
knew swimming. PW4 went to the extent of saying that she
has seen the deceased swim and bathe in the pond.
18. PW5 and PW6 were coolie workers who were
working near the scene of occurrence. At around 12.00
noon, both of them saw the accused coming from the
direction of the pond. Both said that he was looking
perplexed and his dress was drenched. The accused asked
them the way to Thanissery which the witnesses pointed
out. In cross-examination, PW5 repeated that the dress
worn by the accused was wet and not his head. In
re-examination, PW5 stated that to reach Thanissery, one
could go over the canal bund or through the tar road. The
suggestion of the Counsel for the accused that there are
many ways to Thanissery was affirmed by the witness. PW6
corroborated the evidence of PW5. But she said that she
did not have any acquaintance with the accused.
19. PW7 is an autorickshaw driver. On 10.10.2010
at around 12.45 p.m, the accused got into his autorickshaw
to go to Kattoor. He went to a shop at Kattoor and with
another, again proceeded to Pulinchodu, where, from the
bus stop yet another person also boarded the auto. Three
of them, in PW7's auto, reached Welfare Finance, where all
of them alighted. After about 10-15 minutes, they came
back and gave him Rs.63/- as fare. PW7 identified A1 as
the person who travelled in his autorickshaw.
20. PW8 is the Clerk of Welfare Financiers, where
MO1 chain was pledged. He spoke of A2 having pledged the
ornament which weighed around 10 sovereigns, for which
Rupees fifteen thousand was handed over. He identified MO1
and also the accused who was brought to the shop by the
police on 13.10.2000. In cross-examination, PW-8 said that
there was no 'Thali' on MO1. PW16 saw the recovery of MO1
chain with MO1(a) locket from Welfare Financiers and
witnessed the seizure as evident from Ext.P9 mahazar.
21. PW9 is the Managing Partner of one jewellery
from where A1 and A2 purchased two rings. The purchase was
made on 10.10.2000 which were identified as MO2 series.
The bill was marked as Ext.P3. In cross-examination, PW9
identified the seal on MO2 rings which establish the rings
to be those sold from his shop. The bill marked as Ext.P3
was in the name of A2. There was some wordy altercation
between A1 and A2, upon which PW9 scolded them and asked
them to leave the shop, which was not stated to the
police. PW10 runs 'Seiko Times' from which A1 and A2
purchased two watches evidenced by Ext.P4 bill. The
purchased items were identified as MO3 series. The watches
were said to be duplicate Rado Watches.
22. PW12 is the person who identified A2. He went
along with the police party to Pollachi, where A2 was
apprehended from the bus stand at 3.30 a.m. One of the
rings in MO2 series and one of the watches from MO3 series
were recovered from the person of A2 along with the Pawn
Ticket issued from Welfare Financiers. The mahazar
evidencing the seizure was marked as Ext.P6. A2 informed
the police party that A1 had proceeded to Thanjavur and
PW12 along with the police party and A2 proceeded there.
A2 pointed out A1, who was apprehended. A1 had a plastic
cover with him which contained a shirt, a dhoti, some
hundred rupee notes and the bills of purchase of the rings
and watches. One of the rings and one watch were also
recovered from the person of A1 by mahazar, marked as
Ext.P7. PW12 admitted that both the watches were identical
and the ones recovered from each of them are not
distinguishable or separately identifiable and so were the
rings. PW13 is the Sub Inspector who recorded the FIS and
registered the FIR, of 'unnatural death'. PW14 is the Sub
Inspector who led the police accompanied by PW12 to
Pollachi and Thanjavur. His testimony corroborates that of
PW12; about the apprehension of the two accused, the
recovery of the rings and watches from A1 & A2, the bills
of purchase from A1 and the Pawn Ticket from A2.
23. PW15 is the IO, who submitted the final
report. PW17 is a Circle Inspector of Police who prepared
Ext.P10 report of investigation on the dead body and
seized the Material Objects from the body and from nearby,
as per Ext.P11 mahazar. He also arrested A1 and A2 at 8 O'
Clock on 13.10.2000 when they were brought to the office
of the Circle Inspector. He spoke of the recovery of MO1
chain as per the confession of A1, the extract of which
was marked as Ext.P12. He also marked Ext.P13, extract of
confession, which led to the Jewellery from which MO3
series rings were purchased.
24. The learned Counsel for the appellant argued
that there are many inconsistencies in the testimonies of
the witnesses; which we are not inclined to accept as
having raised a reasonable doubt concerning the
occurrence. That, A1 was engaged on the fateful day by PW2
is established through his evidence and PW3, his mother,
confirms the presence of A1. It was argued that PW3's
statement that a dog barked indicates the presence of a
stranger and not that of A1, who was a regular visitor to
the house. A1 though a regular, it was very evident that
he was engaged for odd jobs by PW2 and for some months
regularly too. But that does not lead to any presumption
that the dog would not have barked on seeing him. PW3, the
deceased and A1 were present at the same time in the
property of PW2, where he resides with his family. PW4 is
a neighbour and companion of the deceased, who together
used to bathe and wash clothes at the pond. The husband of
the deceased (PW2), the mother-in-law (PW3) and her
regular companion (PW4) asserted that the deceased knew
swimming.
25. Both PW3 and PW4 noticed the absence of the
chain (thali or mangal sutra) on the dead body being
recovered from the pond. The identification of a ring by
PW2 was a mistake committed by the prosecution and it is
not significant enough to discredit the witness. PW5 and
PW6 are coolie workers who saw A1 proceeding to Thanissery
and his clothes were asserted to be wet when they saw him.
The appellant argued that PW6 had no prior acquaintance
with A1, which is not to say that she could not identify
him by sight especially when he was a regular in the
locality. It was also urged that if A1 was residing in the
locality there was no reason why he should ask for
directions to PW5 and PW6. Admittedly there are several
pathways to reach Thanissery from the scene of occurrence,
as spoken of by PW5 on a specific suggestion made by the
defence in cross. PW5 and 6 were working near a canal
bund and directions were sought by A1 to proceed to
Thanissery over the canal bund and not through the regular
tar road. We find no reason to disbelieve the evidence of
PW5 and PW6.
26. There is also the compelling testimony of
PW7, whose autorickshaw A1 boarded and his deposition that
A1 was later joined by A2 and A3. PW7 dropped them at
Welfare Financiers, from where the pledged ornament was
recovered. PW8 witnessed the pledge being made by A2
accompanied by A1, of a chain he identified as MO1. PW8
said that there was no 'thali'. But PW8 was not the person
who accepted the pledge and the recovery shows a locket
and not a 'thali', as conventionally used in Kerala.
Ext.P2, Pawn Ticket dated 10.10.2000 describes the pawned
ornament to be 'a locket chain with broken hook'. On the
locket, as is evident from Ext. P9 mahazar, the short name
of the husband, PW2, and their date of marriage was
inscribed; which obviously is the mangal sutra.
27. At this juncture, we have to look at the
recovery under Section 27, of the chain. Ext.P12 is said
to be the extract of the confession made by A1, according
to PW17 I.O. Ext.P12 reads as follows:
"മമാല ഞങ്ങൾ എടമമുട്ടതമുള്ള ഒരമു കടയയിൽ പണയയ
വവെചയിട്ടട്ടുണണ. എവന്നെ കകൂട്ടയിവകമാണണ പപമായമാൽ പണയയ വവെച
കടയമുയ പണയയ എടമുത ആവളെയമുയ കമാണയിചട്ടുതരമായ".
A1 confessed the pledge of the chain and agreed to point
out the shop and the person who took the pledge. It is
argued that this was a joint confession and that the I.O
has not deposed the exact words used by the accused. In
Mohd. Abdul Hafeez (supra) the Hon'ble Supreme Court held
that 'If evidence, confessional in character is admissible
under Section 27 of Evidence Act, it is obligatory upon
the Investigating Officer to state and record who gave the
information; when he is dealing with more than one
accused, what words were used by him so that a discovery
under the information received may be connected to the
person giving the information so as to provide
incriminating evidence against the person"(sic-para5). In
the present case, the confession was recorded as we saw in
Ext. P12 which was marked by the I.O as the confession of
A1. When the confession has been recorded and marked, we
do not think the I.O is required to further state in
deposition the exact words employed; which in any event
would be read over from the document. The Hon'ble Supreme
Court was dealing with a case in which such confession was
not recorded; which document is not seen marked in that
case. Thampi Sebastian (supra) was a case in which A1 and
A2 jointly confessed about the place of concealment of the
weapons. Herein, it is not a joint confession since what
has been stated by A1 is that jointly the accused pledged
the chain. A joint concealment is different from a joint
confession. However, a doubt arises in our minds about the
recovery, especially from the fact that PW12, a local
accompanied the police party to Tamil Nadu for the purpose
of identification of A2. It can be reasonably inferred
that, on being informed of the death and the theft of the
chain, the police made enquiries in the locality which led
to the discovery of the pledge. This awareness of the
pledge of the ornament in A2's name obviously led to the
apprehension of A2 and then A1. Here, we reiterate that
the locket on the chain which was pledged clearly
indicated the ownership by its inscription. In fact, if
the evidence were so led, it would have been a sufficient
circumstance under Section 8 of the Evidence Act as
subsequent conduct, which is a relevant fact; i.e., the
pledge of the chain snatched from the body of the deceased.
28. Despite the recovery not being proved, the
evidence of PW8 establishes the pledge of MO1 having been
made by A2 in the presence of A1. Ext. P9 mahazar though
styled as a recovery, which is disbelieved, can be
reckoned as a seizure. Immediately thereafter, A1 and A2
together purchased two rings from PW9 and two watches from
PW10, again, in the name of A2. The rings MO2 series and
the watches MO3 series were recovered, one each from the
person of A1 and A2, as attested by the independent
witness PW12. The bills of purchase of these MOs were
recovered from A1. PW9 and 10 identified A1 having
accompanied A2 while the purchase was made. Presumably,
with the proceeds of the pledge, A1 and A2 purchased two
rings as evidenced from Ext.P3 bill, issued in the name of
A2, from PW9 and two watches from PW10, evidenced by
Ext.P4 bill. Ext. P4 shows the name 'Balu', which
incidentally is also the name of A1. PW10 has clearly
identified the purchasers. Ext.P6 mahazar evidence the
recovery of the Pawn Ticket and the ring and watch from
A2. Ext.P7 mahazar evidence the seizure of the watch,
ring, the bills of purchase of the two rings and two
watches and Rs.1000/- from the person of A1.
29. The appellant argued that since the pledge
was made by A2, A1 at best was an onlooker and there is a
reasonable doubt arising in so far as the culpability of
A1, especially for the offence of murder. As held in Kali
Ram v. State of H.P. (1973) 2 SCC 808 "... As mentioned by
us recently in the case of State of Punjab v. Jagir Singh
(1974) 3 SCC 227 = 1973 SCC (Cri) 886 a criminal trial is
not like a fairy tale wherein one is free to give flight
to one's imagination and fantasy. It concerns itself with
the question as to whether the accused arraigned at the
trial is guilty of the offence with which he is charged.
Crime is an event in real life and is the product of
interplay of different human emotions. In arriving at the
conclusion about the guilt of the accused charged with the
commission of a crime, the Court has to judge the evidence
by the yardstick of probabilities, its intrinsic worth and
the animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although the
benefit of every reasonable doubt should be given to the
accused, the Courts should not at the same time reject
evidence which is ex facie trustworthy on grounds which
are fanciful or in the nature of conjectures" (sic-para
25). The 1st accused being a native of Tamil Nadu eking out
his livelihood from odd jobs; none would have accepted the
pledge of a very valuable chain, weighing around ten
sovereigns, from him. It is hence natural that he
approached a local and hence he also had to share the
booty with that person, in whose name the ornament was
pledged. This act has to be viewed with the evidence
establishing the presence of A1 at the scene of occurrence
and his flight over the canal bund and the auto, and A2
joining him in the auto.
30. The circumstances established by the
prosecution form an unbroken chain establishing the
presence of A1 at the scene of occurrence, his flight over
the canal bund, that too in drenched clothes, availing the
assistance of a local (A2) to pledge the stolen ornament
and having purchased two rings and two watches, one each
of which was seized from the person of A1 and A2, on
apprehension by the police. A1 and A2 had also fled the
locality to the neighbouring State of Tamil Nadu from
where they were apprehended. A1 was engaged for the day,
as is deposed by PW2. PW3 asserts his presence in front of
their residence. A1 fled from the locality to the
neighbouring state and so did A2. A2 has not been seen
anywhere near the scene of occurrence, but A1's presence
and flight over the canal bund, avoiding the regular tar
road, is deposed by PW 5 & 6. A1 was identified by all
these witnesses; by PW3, an old lady, after close
examination by going near the dock, as recorded in her
deposition. A1 has an explanation for leaving his
workplace and proceeding to his native place; that he
heard of his mother's death, in his Sec. 313 questioning.
This could have been easily proved with a death
certificate, but no proof was offered. We are of the
opinion that the circumstances together unerringly
establish the theft of the chain from the body of the
deceased by A1. Now what remains is the vexing issue of
whether it was an accidental death by drowning or one
intentional and forceful.
31. PW11 is the Doctor who conducted the
post-mortem. There were 15 abrasions noticed as
ante-mortem injuries. Injury number (1) is a vertical
abrasion over the front of neck, its upper end to the
right of midline and its lower end 2.5 cm above the inner
end of the collar bone. Injuries numbers (2) & (3) are
also abrasions, the former oblique and directed towards
the left extending from the middle of inner margin of
injury No.1 and the latter overlying one-third of the
right collar bone. These three injuries, as per the expert
opinion, indicate infliction most probably on a forceful
snatching of the chain from the neck. The other injuries
are on the upper lip (No.4), a contusion on the right of
back of right elbow (No.5), abrasion over the front of
right wrist (No.6), five abrasions over all the fingers of
the right leg (No.7), a lacerated wound on the middle of
left leg (No.8), two abrasions one above the other, on the
back of left wrist (No.9), an abrasion on the back of left
elbow (No.10), one over the outer aspect of left elbow
(No.11), another two above the left of back shoulder (No.s
12 & 13) and two more over the left side of the face
(no.14 & 15). The opinion as to cause of death was due to
drowning and the Doctor, PW 11 specifically opined that if
there was drowning, by force applied over the back of
head, there would not be any injuries due to the presence
of scalp hair.
32. It is stated in Ext.P5, post-mortem report
that bone marrow and water samples were reserved for
diatom test. The argument that the diatom test was not
conducted does not hold any water (no pun intended) since
it would not have indicated anything more than the cause
of death by drowning and would have only further confirmed
it. Diatom test is an important tool for the diagnosis of
death in drowning cases, as the typical features of
ante-mortem drowning disappear rapidly with putrefaction.
The diatom test cannot differentiate between an accidental
drowning and a forceful one. The doctor has clearly opined
that the possibility of injuries 1 to 3 occurring due to
a fall is very remote and it can be caused due to
scuffling and snatching of gold chain. The suggestion in
cross-examination that the injuries could have been caused
by the floating body coming into contact with hard objects
was negatived by the doctor since the injuries noted were
all ante-mortem and not post-mortem injuries.
33. The appellant argued that even if the
snatching of the gold chain is found to have been done by
A1, there is nothing to indicate the drowning having been
intentionally caused by him. The worst scenario, according
to the learned Counsel, is that in the course of snatching
the chain, the deceased fell on the steps leading to the
pond and then into the water and drowned accidentally.
There is enough evidence to indicate that the pond was
deep only at the middle and was on its edges quite
shallow, the depth being 98 cms on its edges, as seen
from Ext.P11 scene mahazar. PW1 deposed that the pond was
3 feet deep at the place, where one steps into the water.
PW2 also said that the pond is shallow on its edges. The
said testimonies were not disputed by the accused in
cross-examination. PW3 did not in chief-examination say
anything about the depth of the pond; but to her, a
suggestion was made about the depth of the pond at its
middle and not at its edges. PW4 who used to frequent the
pond, with the deceased categorically stated that the body
was found on the edge where it is not very deep. To a
suggestion in cross-examination that the deceased would
have drowned accidentally when she slipped on the banks of
the pond; it was stoutly denied by PW4 and it was asserted
that the pond was deep about 5 to 6 feet towards the
middle. PW-11, the doctor has opined that if the victim
knew swimming, the possibility of drowning in 98 cm. depth
is very remote. That the victim knew swimming is spoken of
by her husband (PW2), mother-in-law (PW3) and the
neighbour (PW4); the latter who is her regular companion
at the pond. Even if the victim fell accidentally into the
pond, she could not have hence drowned.
34. The injuries are not that could be caused by
a mere fall as opined by the Doctor. In addition to
injuries 1 to 3, opined to be caused by the snatching of
the chain, there are other abrasions on the face, on the
hands and on the back of the shoulder, from which there
can be drawn a reasonable inference that the victim was
intentionally and deliberately drowned by A1, as is the
charge framed against him. The edges of the pond are not
seen to have been paved. A1 found in possession of the
chain worn by the deceased had a motive. Being closely
acquainted with the accused it is possible of a sure
identification, in the event of the victim of
chain-snatching being left to live. We hence find that the
prosecution has succeeded in bringing home the guilt of A1
on the offences alleged against him. We find no reason to
interfere with the impugned judgment, we reject the appeal
and we confirm the same in toto.
Sd/-
K.Vinod Chandran,
Judge
Sd/-
Ziyad Rahman A.A.,
Judge
vku/-
