1. The referred trial and the Criminal Appeal arose from the judgment of the learned Sessions Judge of Kottayam in Sessions Case No. 41 of 1952 convicting one Neelakantan Vasu of the offence of murder and sentencing him to the extreme penalty of the law.
2. We heard the case first on 18th February 1953 and reserved judgment. On perusing the records we found that on a point very material to the case the prosecution evidence was discrepant, and the document bearing on the point, conflicting and irreconcilable. The weapon, to wit, a rather biggish penknife, with which the accused was alleged to have killed his wife, for which offence he was tried and found guilty by the learned Sessions Judge, was, according to the mahazar embodied in the Inquest Report (Ext. C) soaked in blood at the time of its recovery. The prosecution case was that the police recovered it from the scene of the offence when holding the Inquest which was begun within 12 hours of the occurrence. The Chemical Examiner's report (Ext. H) however, showed that no blood was found on the penknife. This aspect escaped the attention of the lower court nor was it referred to in the arguments before us. To us it appeared that unless there was some reasonable explanation for this inconsistency in important prosecution records it would, in the circumstances of the case, be unsafe to accept the reference made by the Sessions Judge under Section 374 of the Code of Criminal Procedure to confirm the conviction and the sentence. We therefore after due notice to both the prosecution and the defence directed the investigating officer (P. W. 15) to be recalled and re-examined before us. This order was passed on 23rd February 1963 and the further examination of P. W. 15 took place on 9th March 1953. Neither he nor the learned Public Prosecutor who supported the reference was able to offer any explanation for the irreconcilable nature of the two documents. The witness however affirmed that the description of the penknife in the inquest report as having been virtually soaked in blood was true. His evidence also indicated that all possible precaution was taken to see that after its recovery the penknife was kept intact for the Chemical Examiner's test. The further evidence recorded in this Court therefore only confirmed our misgivings regarding the veracity of the main prosecution witnesses. Holding the view that the evidence taken as a whole did not justify our acceptance of the reference we acquitted the accused then and there and directed him to be discharged. In so doing we said that the reasons for the decision will be given later, and this by way of implementing that order.
3. The facts of the case are correctly and clearly set out by the learned Sessions Judge in paragraph (1) of his judgment, and that paragraph may with advantage be reproduced here:
The accused stands charged with having committed an offence under Section 302 I. P. C. for having murdered his wife, Sarada. They were living together in a hut or shed near Kodimatha bridge in Kottayam, with the accused's sisters-in-law, P. Ws. 2 and 3. Sarada used to vend rice in the Thirunakkara market, and the accused to earn his livelihood as a porter carrying goods. The case for the prosecution is, that for some time previously, the accused had entertained suspicion about Sarada's relations with one Narayanan, P. W. 7 and that on the evening of the 13th May 1952, the accused met Sarada taking tea at the shop of P. W. 8, near the market, when P. W. 7 was also present. The accused and Sarada left for their home together in the evening, and afterwards he redeemed the knife M. O. IV which had been pledged by him with P. W. 6, the owner of a tea shop nearby. After his return, himself and Sarada had an oil bath in the neighbouring river, and they obtained some curry from a toddy shop and had their meals together. The accused was all the time pretending to move affectionately towards Sarada, but about midnight on the same day, when she was asleep, he inflicted a deadly injury on her by plunging his knife to a depth of 4 inches on the right axilla. Sarada cried aloud, upon which her elder sister P. W. 2 was roused; she witnessed the accused holding Sarada by her tuft and inflicting a stab on her neck. After this, the accused threw the knife towards P. W. 2, which fell on the southern court-yard and then disappeared. Startled by the cries of Sarada and P. W. 2, their youngest sister P. W. 3 bad also risen by that time. Sarada rose and ran a little towards the north and fell down. After a time it began to drizzle, and she rose and tumbled herself into the hut and expired some time later. P. W. 2 laid the first information to the police Ext. B, on the next morning. While the Sub-Inspector of Police P. W. 15 was at the scene of occurrence, information reached Mm that the accused had surrendered himself at the Kottayam Cusba Police Station. He immediately hastened to the Police Station and took the accused with him to the scene for some questioning. Finding that the accused was in a mood to confess his guilt, he was sent to the Magistrate for recording his confession. The Sub-Divisional Magistrate being not in station the District Magistrate P. W. 1, recorded the confession Ext. A, late in the afternoon. In due course, the police laid a charge-sheet against the accused. He was undefended before the Magistrate and counsel was engaged at Government cost to defend him in this Court. He has pleaded not guilty to the charge against him. The trial was aided by four Assessors, who sat throughout and who recorded their unanimous opinion at the conclusion, that the accused is guilty.
4. That accused's Wife Sarada died as a result of the injuries she sustained during the night between 13th May 1952 and 14th May 1952 admits of no doubt on the evidence in the case. The learned Sessions Judge found that the evidence established that the accused was the perpetrator of the crime, that his offence amounted to murder and that the proper sentence to be passed was death. The question for our consideration was whether there was sufficient reliable material to accept the reference made by the learned Sessions Judge and confirm the conviction and the sentence.
5. At this juncture, it has to be mentioned that when the case was argued before us on 18th February 1953, the appellant's learned Counsel, Shri T. K. Narayana Pillai only contended for the amelioration of the crime and alternatively for the mitigation of the sentence. The discrepancy referred to earlier was brought to his notice on 23rd February 1953, and his contention thereafter was that his client was entitled to an acquittal. The memorandum of appeal traversed all possible grounds and claimed that the learned Sessions Judge ought to have acquitted the accused. Besides the accused's appeal the reference tinder Section 374 was also before us. When a case is referred to the High Court under that section the High Court is not only entitled but also bound to go into the facts and the law of the case and to come to an Independent conclusion as to the guilt or Innocence of the accused independently of the opinion of the trial Judge or the verdict of the jury where there is one.
6. The materials on which the learned Judge found the accused guilty of murdering his wife were:
(i) The direct evidence of P. W. 2, the deceased's elder sister, that she saw a part of the occurrence and that the accused threw the penknife with which he stabbed Sarada at the witness;
(ii) the evidence of the deceased's younger sister, P. W. 3, that she saw the accused running away from the scene of the offence after throwing the penknife at P. W. 2;
(iii) the statement, the deceased is alleged to have made to P. Ws. 2 and 3 immediately after she sustained the injuries of which she died that the accused it was who inflicted those injuries on her;
(iv) the extra-judicial confession alleged to have been made by the accused to P. W. 12 on the morning of 14th May, 1952; and
(v) the confession made by the accused before the District Magistrate of Kottayam (P. W. 1) on the evening of 14th May, 1952. This document is Ex. A.
7. The accused retracted at the trial from Ext. A and stated that it was the result of police torture. He denied having ever met P. W. 12 or made any confession to him. According to him he saw P. W. 12 for the first time in the committing Magistrate's court. The learned Sessions Judge found the confession to P. W. 12 to be true and that the confession to P. W. 1 though retracted was corroborated in all material particulars by the other evidence in the case. That other evidence consisted mostly, if not entirely, of the testimony of P. Ws. 2 and 3, and that falls under heads (i) to (iii) above.
8. P. W. 2 gave evidence that she awoke from her sleep hearing the cries of her sister Sarada and that when she turned towards her she saw the accused inflicting a stab on the neck holding her by the tuft with his left hand, she at once tried to approach the place where Sarada was being attacked and the accused then threw the penknife at her and disappeared. P. W. 3 was roused from her sleep by the cries of Sarada and P. W. 2. According to her she saw the accused throwing the penknife and running away. These two witnesses further said that Sarada told them that the accused stabbed her while she was asleep.
9. It is in appraising the worth of the evidence of these two witnesses that the glaring discrepancy regarding the penknife assumes importance. The penknife which has been produced and marked in the case as M. O. IV answers to the description contained in the inquest report regarding the penknife recovered from the scene of the occurrence. It is of a peculiar make and its identification is not difficult. There is the evidence of both P. W. 2 and P. W. 6 that M. O. IV belonged to the accused. According to the in quest report and the evidence of the investigating officer the penknife was closed when it was recovered. It is not known when the assailant closed the penknife or why he should have closed it to throw it at P. W. 2. If his idea was to escape from the place as soon as he found P. W. 2 had awoke from her sleep normally he would not have remained there to close it. It is also not easily understood why a closed knife should have been thrown at P. W. 2.
Whatever that be what was alleged was that it was a closed knife that was recovered at the time of the inquest and the inquest report described it to have been fully clotted with blood, Not only the handle and the blade but also the crevice into which the blade fits in when closed was full of blood. P. W. 14 would have it that he took all precaution to send the knife intact to the court to be sent for chemical examination and that from there it was sent to the Public Health Laboratory to be tested for blood. The receipt issued from the Public Health Laboratory (Ext. F) bore the date 19th May 1952. The Chemical Examiner's certificate Ext. H, showed that no blood was noticed on the penknife. In conscience and truth we found it difficult to believe the evidence that the blood clotted penknife, M. O. IV was recovered from the scene of the offence. M. O. IV belongs to the accused and Ext. H showed that it had no trace of blood on it. There was nothing to suggest that anybody tampered with it after its recovery and before it reached the hands of the Chemical Examiner. Nor was it open to us in a case of the present - magnitude to indulge in any speculation. The conclusion looked irresistible that the evidence that a blood clotted penknife was recovered from the scene of the offence was palpably false. That led us to hold that P. W. 2 and P. W. 3 were not worthy of credence. They said they saw the accused throwing away the penknife in his hand before he left the place and according to P. 'W. 2 that was the penknife with which the accused stabbed Sarada. P. W. 2's was the only direct evidence in the case and P. W. 3 sought to give substantial corroboration to her sister's evidence. We found them supporting the case of the false recovery of a blood clotted penknife from the scene of the offence and also accounting for its recovery from the scene of the offence by swearing that they saw the accused throwing the penknife away. The Chemical Examiner's report made us view with suspicion the entire evidence relating to the recovery of M. O. IV soaked in blood from the scene of the offence.
To repeat what we have indicated above that made it difficult for us to believe any part of the evidence of P. Ws. 2 and 3; that is, we were not able to accept their evidence that they saw the knife being thrown away or that it was recovered from the scene of the offence nor believe the evidence of P. W. 2 that she saw the accused inflicting one stab as also her evidence and the evidence of her sister that Sarada told them that the accused stabbed her. P. Ws. A and 5 no doubt said that P. W. 2 told them that night itself that Sarada had told her that it was the accused who stabbed her. Of them P. W. 5 was not questioned at the time of the inquest and P. W. 4's evidence has not been given any serious weight by the learned trial Judge himself.
10. Another difficulty we felt in placing reliance on the evidence of P. Ws. 2, 3 and 4 (as also other witnesses examined at the inquest) was that the police had obtained their signatures to the Inquest Report. The statements they gave before the officer holding the inquest fell within the purview of Section 162 of the Code of Criminal Procedure and it is a mandatory provision of that section that such statements shall not be got signed by the deponents. Following the Privy Council decision in - Zahiruddin v. Emperor AIR 1947 PC 75 (A), this Court had recently in - Kuruvila Joseph v. State AIR 1952 Trav-C 300 (B), pointed out that the value of the evidence of a witness who had given a signed statement previously to the police may be seriously impaired as a consequence of the contravention of the statutory safeguard in Section 162 against improper practices. Witnesses who give signed statements to the police will not when afterwards examined at the enquiry or trial feel themselves free agents to give evidence. This Court rendered the decision in - 'AIR 1952 Trav-C 300 (B)', on 20th March 1952 and the occurrence forming the subject of the case now before us was only on 13th May 1952. The investigating officer's explanation for the continued contravention of Section 162 was that the police circular Inviting their attention to the decision was issued only in July 1952. Be that as it may, the fact remains that the circumstance of the witnesses examined at inquest having lent their signatures to the Inquest Report is a circumstance to be taken into account in appraising the worth of their testimony.
11. Yet another matter on which the police in this case would seem to have contravened the mandatory provisions of the Code is that the inquest was not held 'in the presence of two or more respectable inhabitants of the neighbourhood' as enjoined by Section 174(1). Besides the officer who held the inquest (P. W. 15) nine persons have signed that document. Seven of them were in a position to give relevant information regarding the occurrence, the motive for the crime, antecedent circumstances, etc., and of them four (P. Ws. 2, 3, 4 and 7) were examined at the trial, A Police- Constable, P. W. 14 and a Police Head Constable were the other signatories. Of the witnesses examined at the trial and who had attested the Inquest Report, P. Ws. 7 and 14 were not asked anything about the recovery of the penknife bat P. Ws. 2, 3 and 4 were asked and they supported the case of the recovery. It is not known why the investigating officer did not take the precaution of two or more respectable inhabitants of the neighbourhood being present at the time the inquest was held. Instead the Inquest Report expressly records that there was no panchayatdars present-vide answer to Question No. 1. Section 171(2) states that the report shall be signed by the police officer holding the inquest and 'other persons, or by so many of them as concur therein', referring obviously to 'two or more respectable Inhabitants of the neighbourhood' referred to in Sub-section (1). This aspect was also referred to in - 'AIR 1952 Trav-Co. 300 (B)' & the failure to comply with the said requirement of the section is in our view another important circumstance to discredit the story of the recovery of the penknife. The evidence of P. W. 4 is not entitled to any higher value than that of P. Ws. 2 and 3. The first information report (Ex. B) given by P. W. 2 contained a statement that the penknife was still lying at the scene of the offence. SOU no respectable neighbour was asked to be present at the time of the recovery.
12. To us reading Ext. B and the Inquest Report it was difficult to believe that Ext. B came into existence at the time it purported to have come into existence, namely 9-15 A. M. on 14th May 1952. It is very doubtful whether a person like P. W. 2 would have had the equanimity of mind to give such an elaborate statement as that contained in Ext. B soon after 'her sister was murdered, according to her, practically before her very eyes. The scene of the occurrence is two , miles away from the police station and alter recording Ex. B it was not known how the inquest could have been commenced at 10-30 A. M. Ext. B contained not less than five pages of clearly written matter.
13. The cumulative effect of these infirmities was to render the evidence of P. Ws. 2, 3 and 4 valueless and in our endeavour to decide whether the offence of murder was brought home to the accused we declined to place any reliance on their evidence,
14. The next item of evidence relied upon by the learned Sessions Judge was the extra-judicial confession alleged to have been made to P. W. 12. At the trial the accused denied that he ever made any such confession and that it was in the committing magistrate's Court that he saw P. W. 12 for the first time. What P. W. 12 stated in his evidence was that on the morning of 14th May 1952 the accused had gone to his house in search of the driver of his car and had told him that he had come after stabbing his wife. It would appear that the driver was a person well known to him and through him he wanted the good offices of P. W. 12 to prevent the police molesting him. It did not appear from the evidence of P. W. 12 that the accused wanted to surrender himself to the police, nor did the deposition of P. W. 12 show that the accused told him he murdered his wife. Yet the judgment (paragraphs 6 and 13) proceeded on the basis that the accused had admitted to P. W. 12 that he killed his wife. This is reading into the deposition more than what it contained. The cross-examination elicited the information that the accused told him that the stabbing took place when his wife was seen in the company of another person. This part of the evidence of the witness the learned Sessions Judge was not prepared to accept and in concluding that discussion he commented upon it as follows:
It was also brought to my notice by the learned Public Prosecutor, that P. W. 12 had not referred to this in any of his earlier versions and that possibly he might have been persuaded by his driver, a friend of the accused, to give what little aid he can to the accused by making a statement like this in cross-examination. I am satisfied, that the statement of P. W. 12 cannot be relied on by the accused in his favour.
15. Earlier in the same paragraph (paragraph 13) the learned Judge observed that the witness had deposed that he was unable to remember all that the accused had told him and the learned Judge proceeded to state:
Questioned about it further, he said, that his recollection was, that the accused said that he found somebody lying with his wife and so killed her. In the first place, P. W. 12 had only a hazy notion of what the accused had told him on the occasion. The central fact that he could remember was only, that the accused admitted having committed the act. It is not fair or proper to rely on his evidence about the details of the occurrence. Secondly, even if P. W. 12 may be regarded as speaking the truth, it may as well be, that the accused was attempting to give an explanation of an otherwise most cruel conduct on his part, of murdering his wife in sleep. In the circumstances of this case even if the accused said so to P. W. 12, it must be taken to be an invention on his part.
16. Here again, that is, in this extract the learned Judge had attributed to the witness more than what the witness had deposed. The witness never said that the accused told him that he saw his wife lying with somebody. All that the witness's deposition contained was that when he returned to his house he saw another person there and that out of anger he stabbed his wile. The extracts taken from the judgment of the learned Judge show that the learned Judge was himself not prepared to place absolute reliance on the testimony of P. W. 12. The witness admitted that he could not remember all that the accused had told him about the incident and no statement in the deposition of P. W. 12 showed that the accused confessed to the witness that he committed a crime of murder.
17. To say that the accused stabbed his wife is far different from saying that he confessed to P. W. 12 that he killed his wife. It was not proper to read into the deposition of P. W. 12 more than what it contained. According to the learned Judge the witness was not a person of undoubted probity. The witness had only hazy recollections of the accused's statement and the course adopted to eschew one part of the so-called confession by 'a priori' reasoning and to act upon the remaining portion was not one warranted by law. See - Palvinder Kaur v. State of Punjab : 1953CriLJ154 , column (2) (C). Also - Hanumant v. State of Madhya Pradesh : 1953CriLJ129 . If there was other evidence to connect the accused with the crime, the evidence of P. W. 12, if believed, could have been made use of to lend assurance to that evidence, but on its sole strength it did not go far enough to sustain a conviction for the offence of murder,
18. The next and the last item of evidence to connect the accused with the crime was the retracted confession contained in Ext. A. As against the maker a retracted confession may no doubt form the basis of a conviction if believed to be true and voluntarily made, but the better view is that a retracted confession must be regarded as suspicious and that as a rule of practice and prudence it is unsafe to base a conviction on retracted confession alone without independent corroboration. In the view the learned Judged took about the items of evidence falling under heads (i) to (iv) he was justified in seeking to make use of the retracted confession to support his conclusion that the offence was brought home to the accused. We took a different view regarding the weight of those items of evidence and it would therefore suffice for us to say we did not find our way to confirm the conviction on the strength of the retracted confession alone particularly when we found the police investigation of the case was not above board. Either it lent itself to concoct evidence or those responsible for the proper custody of the penknife were grossly and callously negligent in the discharge of duties. As to how to account for the mystery of the blood clotted knife was not a matter for us to speculate upon and we considered it therefore unsafe to act upon the retracted confession.
19. The accused stated at the trial that the confession was the result of police torture. The evidence the prosecution led itself showed the accused was afraid that the police might ill-treat him if he happened to fall into their hands and it was to prevent that he wanted the good offices of P. W. 12. Whether a confession made under such auspices can be considered to be one made voluntarily, in the wider sense of the term was a point worth examining but we did not consider It necessary to pursue the point as it was not raised at the Bar and when we were not ourselves prepared to act upon the retracted confession. The desire to tell the truth could not have been the dominant motive to confess on the part of a person who was afraid of police violence,
20. There is also another circumstance worthy of notice about the confession recorded in Ext. A. The material portion of Ext. A really indicated that the injuries inflicted on the deceased were with the penknife the accused had pledged with a neighbouring tea shop keeper and which he had redeemed and kept ready earlier in the night of the occurrence. The Chemical Examiner's report belled the fact that M. O. IV which had been identified to be the penknife the accused had pledgee with the tea shop keeper was used in inflicting violence on any human being. This raised a doubt as to the truth of the confession.
21. Subject to Ext. A was to all these infirmities no other course than to reject it, was open to us.
22. The only other evidence let in by the prosecution which had any bearing on the accused's complicity in the crime was the evidence of P. W. 13 who said that soon after he heard the cries from the residence of P. W. 2 and others he saw a person running away and it appeared to him that it was the accused before court. The learned Judge did not refer to that evidence nor was any reference made to it before us in the arguments. The relevant information was elicited by the prosecution as the result of a leading question and. the witness did not definitely say that it was the accused whom he saw running away. His deposition did not impress us as that of a truthful witness.
23. The foregoing reasons induced its to hold that the prosecution had not brought the guilt home to the accused and hence our order on 9th March 1953 allowing the Accused's appeal and acquitting him, The reference was also answered accordingly.
24. We consider it extremely unfortunate that the irreconcilable character of the Inquest Report (Ext. C) and the Chemical Examiner's certificate (Ext. H) concerning the penknife M. O. IV should have been left unnoticed by all concerned until a very late stage of the case in this Court. In his evidence before us P. W. 15 said he noticed the discrepancy when he was examined as a witness. But nothing was done by anybody to unravel what ultimately turned out to be a real mystery. Over zealousness on the part of the witness to procure evidence or utter carelessness from him or others responsible for the safe custody of the penknife accounts for a grave crime going unpunished. We thought it an idle task to attempt to speculate whether the discrepancy arose on account of concoction of evidence or on account of carelessness. It was equally futile to speculate what the reaction of this circumstance would have been on the assessors and the trial Judge had they been appraised of it. In the circumstances the accused's acquittal had eventually to follow.
25. Before concluding we desire to refer to certain passages in the lower courts judgment. Paragraphs 6 and 13 have already been referred to and we have pointed out that the learned Judge read into the evidence of P. W. 12 more than what his deposition contained. Similar mistakes were also noticed in the earlier portion of paragraph 13 where the learned Judge proceeded to state that Ext. A contained indication that the accused found Sarada and P. W. 7 in the act of sexual intercourse. We were unable to find any such thing in Ext. A. It is needless to emphasise that in all cases, especially in a capital case, a trial Judge should pay meticulous attention to the evidence connecting the accused with the crime and the circumstances leading to it. Perhaps the explanation how these mistakes happened to creep into the judgment is furnished by the judgment itself. Paragraph 4 of the judgment reads as follows:
This raises the question as to who caused the injuries. Some of the questions in the cross examination of a few of the witnesses and the evasive statement of the accused on the point in question do show that the accused does not seriously dispute, that he was responsible for the injuries on Saradi. The more important defence put up by him, concerned tile circumstances under which he came to inflict them. However, the evidence adduced by the prosecution may BOW be examined.
26. In view of certain questions put in cross-examination or some statement the accused made at the trial, the examination of the evidence connecting the accused with the crime would appear to have been made a matter of mere formality by the learned Judge. That is what the above extract suggests. The statement the accused gave under Section 342, Criminal Procedure Code contained no admission of the commission of the crime with which he was charged and it is settled law that a gap in the evidence of the prosecution cannot be filled up by any statement made by the accused in his examination under that section.
27. Further in a case of murder even where the accused pleads guilty the court seldom proceeds to judgment on that plea. It invariably prefers to deal with the case after a full trial and adjudge the guilt or the innocence of the accused on the merits of the evidence. The nature of the Questions put in cross examination or inconclusive or non-committal statements made by the accused in answer to the court's questions cannot avail a prosecution better than a plea of guilty.