P. Narayana Pillai J.
1. At the Session, Kozhikode, five accused persons were tried in connection with the nmurder of one Pylee. Accused No. 5 was acquitted. Accused No. 1 was convicted under Sections 302 and 324 of the I. P. C. He was also convicted along with accused Nos. 2, 3 and 4 under Sections 201 and 342 read with Section 34 of the I. P. C. For the conviction under Section 302 of the I. P. C. Accused No. 1 was sentenced to imprisonment for life. In view of that sentence no separate sentence was .awarded to him for the other convictions. Accused Nos. 2, 3 and 4 were sentenced under Section 201 to rigorous imprisonment for two years and under Section 342 to rigorous imprisonment for six months. Crl. A. 242 of 1978 is by accused Nos. 1 to 4 from their convictions and sentences. The other appeal is by the State, In that the request made is that accused Nos. 2, 3 and 4 may be convicted and sentenced under Section 302 read with O. 34 of the I. P, C., also,
2. The incident took place at or about 8.30 p.m. on Oct. 30, 1977 on the side of the Neenangadi-Mananthavady road in Purakkadi, four kilometres to the west of Meenangadi Bazaar, on the heights of Wynad hills in the Western Ghats.
3. The relationship between Pylee and his brother, P. W. 1, on the one side and accused Nos. 1 and 5 on the other was not cordial for some time past. There was dispute between them, about the use of the foot-path leading to Pylee's house. During a confrontation which took place about six months prior to the occurrence between them the first accused lost one of his fingers, There was a case and counter about that. It was during the pendency of those proceedings that the incident in the present case took place,
4. After purchase of some articles from certain shops in Meenangadi Bazaar Pylee and his servant, P. W, 2, went west along the road for going to Pylee's house. The third accused joined them. Near the scene of occurrence a lane joins the road. There is a tree near the junction where the lane and road meet. On both sides of the road are extensive coffee estates. Accused 1, 2 and 4 were standing under the tree at the junction. When they saw Pylee and others coming along the road the first accused came near Pylee and struck him on his head with the iron rod, M. O, 6. The fourth accused put his hands around P. W. 2's neck, removed him from the place and made him sit on a bund inside one of the coffee estates on the side of the road. Pylee who fell down on receiving the blow was dragged for about 10 feet into the lane. When Pylee was being dragged the second accused's cloth, M. O. 13, got caught in the root of a coffee plant and dropped on the ground. The first accused picked it up and catching hold of it at both ends folded it in pleats and after putting it around Pylee's neck pulled it tight, Accused Nos. 2 and 3 were at that time holding Pylee and accused No. 4 was holding P. W, 2, Pylee died by strangulation, When it was realised that he had died accused Nos. 1, 2 and 3 lifted him and threw him into the coffee estate on the side of the road. From there his dead body was removed ultimately to the gate of the second accused's house and thereafter, taken in a car driven by P. W. 3 to a place near the ninth hair-pin bend, more than 20 miles away from the scene of occurrence, and from there thrown down the hills into a gully. As Pylee and P. W, 2 did not return home that night Pylee's wife, P. W, 24, informed P. W. 1 about the matter. He went to the Sultan Battery Police Station and lodged there at 6 p. m. on the next day, Oct. 31, the first information, Ext. PI. It was on the basis of it that the case was registered. Accused Nos. 1, 3 and 4 were arrested on Nov. 7 and accused Nos. 2 and 5 on Nov. 3 and 9 respectively in 1977,
5. It is sufficiently proved in the case that Pylee died due to strangulation. The post-mortem certificate and the inquest report are respectively Exts. P4 and P33. P. W. 9 is the Doctor who conducted autopsy. The dead body was identified by P. W. 1. Ext. P16 is the finger print of Pylee available in the Kamblakad police station and Ext. P23 is the finger print taken from the dead body. The two were compared by the expert P. W. 31, and found to be of the same person. Two external injuries were noted in the post-mortem certificate. Of them one was a ligature mark at the level of the thyroid cartilage. The other was a lacerated wound on the right side of head. There was bruising on that wound.
6. The important question to be considered is whether the murder took place and the dead body was removed in the manner alleged by the prosecution. The only direct evidence regarding murder is that of P. W. 2 and that regarding the removal of dead body is that of P. Ws. 2 and 3.
7. P. W. 2 spoke about the first accused having hit Pylee on head with M .O. 6, and thereafter having strangulated him. The fourth accused caught hold of P. W. 2 by neck and took him to a bund inside the coffee estate on the side of the road. It was while P. W. 2 was sitting at that place with his neck in the fourth accused's hold and guarded by the fourth accused that he is said to have seen in darkness Pylee being dragged along the lane for a distance of about ten feet, accused 2 and 3 holding Pylee and the first accused strangulating him.
8. After the murder P. W. 3's car was engaged to take the accused persons and P. W. 2 down the Ghats to Calicut, more than 50 miles away. After reaching Calicut P. W. 2 was taken to the house of P. W. 33 and the car was taken by P. W. 3 to a Lodge called Noor Lodge. Therefore as regards the events which took place in Noor Lodge and thereafter only P. W. 3 spoke about the same. He said that when the car reached Noor Lodge it was closed and that accused Nos. 2 and 3 scaled over the gate and woke up P. W. 17, the proprietor of the Lodge. After P. W. 17 came near the car the dicky was opened. Vegetables inside the dicky were taken out. Then pools of blood were found inside the dicky. At the instance of P. W. 17 a watchman brought water, the second accused poured water inside the dicky and the third accused with his hands cleaned thei dicky. It was after all that that P, W. 3 took back the car from Noor Lodge in Calicut to Neenangadi bazaar. On the way back at Thakarappadi when the car stopped it was found that bloodstains were still in the dicky. Then at that place P. W. 3 got the dicky washed again with water. It was one Hussain who was engaged for the purpose. All these facts were spoken to by P, W. 3.
9. There are inherent improbabilities in the prosecution version as put forward before court. If the prosecution version is to be accepted, after the dead body was put inside the dicky there were large quantities of blood inside the dicky and more than once the dicky had to be washed to remove the stains. According to the prosecution two gunny bags, those in M. O. 11, were used for packing the dead body and keeping the same inside the dicky. It was after opening the gunny bundle that the dead body was taken out. If the prosecution version is true the gunny bags should have been drenched in blood. They were sent to the Chemical Examiner. Bloodstains were not detected on them.
10. According to P. W. 2 on receiving the hit on the head Pylee fell down. He was then dragged for a distance of about 10 feet. After strangulation accused Nos. 1, 2, and 3 lifted him up and threw him from the road to the coffee estate on the side of the road. After taking the gunny bundle containing the dead body in the dicky of the car from the gate of the second accused's house that bundle was taken out of the dicky only at the summit of the hill near the 9th hair-pin-bend and from there it was thrown into the gully below. It was thrown to a depth of about 30 feet. The throwing was by accused Nos. 1, 2 and 3 after lifting the dead body from the dicky and taking it up to the edge of the road from where the precipice started. That place is at the height of the Wynad hills. The whole area is rocky. After the dead body was thrown down it got caught up in a cluster of rocks. The dead body was thrown away twice, first into the coffee estate near the scene of occurrence and thereafter into the gully near the 9th hair-pin-bend and yet curiously no fracture whatsoever was caused. The dead body did not even show any sign of it having been dragged on the ground.
11. The measurements of the ligature mark noted in the post-mortem certificate were 30 x 2 cm. According to the prosecution M. O. 13 which dropped from the second accused's body was folded in pleats, put around Pylee's neck and pulled tight. If it was in that manner that the strangulation was effected then it was unlikely that the width of the ligature mark would have been only two centimetres. The Doctor, P. W. 9, was specifically asked whether the width of the ligature mark would have been only two centimetres if the strangulation took place as alleged by the prosecution. The answer was in the negative.
12. No injury whatsoever was sustained by P. W. 2 although it is alleged by the prosecution that he was being held by the fourth accused in his firm hold in the same position from 8.30 p. m. till 4 a. m. that night when they reached Kunnamangalam.
13. At Kunnamangalam P. W. 2 was freed from the fourth accused's hold and they all took coffee from a hotel. Before proceeding to Noor Lodge when the car was stopped and the fourth accused took P. W. 2 to P. W. 33's house, also P. W. 2 was free. Thereafter the fourth accused and P. W. 2 were staying in P. W. 33's house for about 6 days. P. W. 2 was questioned by the police only thereafter. If his version is to be accepted he made no attempt at any time during these days to escape from the place. No attempt was made by him to tell any person also of what he has seen. According to him he feared that he would be done to death if he happened to reveal what he had seen. It was not likely that at least when he was in P. W. 33's house for about six days he would have been all the time in the custody of the fourth accused. Anyway P. W. 33 did not support; the prosecution version.
14. What P. W. 2 at first said was that the strangulation took place on the road at the same place where the first accused gave Pylee a blow. Then he changed that version and said that it took place after Pylee was dragged for a distance of about 10 feet. After all that he said Pylee was dragged inside the coffee estate to the place where P. W. 2 sat and then strangulated in his presence.
15. P. W. 2 is a boy of 17 years. He had quarrelled with his parents and run away from home. He was engaged in Pylee's house as a domestic servant only from about two weeks back. He said that though he had seen the accused persons with some others in the Meenangadi Bazar he really got to know their names only during the incident when he heard some of them mentioning the names of the others. When he was asked as to what was the occasion for mentioning their names he pretended ignorance. He correctly mentioned their names when he deposed in court. It is difficult to believe that he knew their names only because he heard their names being mentioned during the incident.
16. To probabilise the evidence of P. W. 2 that he had been to the Meenangadi Bazaar for purchase of jaggery and that after purchase of the same he and Pylee came to the scene of occurrence the prosecution examined P. Ws. 4, 5 and 6. What P. W. 4 said during investigation was that when he was proceeding along the road accused Nos. 1 to 4, Pylee and P. W. 2 were seen standing under a tree and talking with each other. What he deposed in court was that only accused Nos. 1 and 2 and another person were then seen standing under the tree and that Pylee, P. W. 2 and the third accused were really only coming behind him. If the version given by him during investigation is true he should have seen the occurrence also, because, according to the prosecution, the incident started the moment Pylee and P. W. 2 came to the place. But he did not see that.
17. P. W. 5 is the person who is said to have sold the packet of jaggery, M. O. 14, to Pylee. The purchase is said to have been made on credit. The accounts of P. W. 6 were not produced. After purchase M. O. 14 was with P. W. 2. He did not identify M. O. 14 and did not say how it was taken away from him.
18. Pylee is said to have purchased soda bottle from P. W. 6. P. W. 2 did not speak about it when he was questioned during investigation.
19. When accused Nos. 1, 2 and 3 went to P. W. 3 to engage his car he asked them why they wanted to go to Calicut, Then they told him that they wanted to take some vegetables to Calicut. When P. W. 3 told them that if they were to go from Meenangadi to Calicut solely for the purpose of transporting vegetables the cost would be prohibitive, they said that it did not matter because the proprietor of Noor Lodge at Calicut would bear all the expenses. It was after that that the car was taken first to the front side of the third accused's house and thereafter to the gate in front of the second accused's house. It was while the car was near the gate of the second accused's house that the gunny bundle and five bunches of banana were put inside the dicky. It was represented to P. W. 3 at the time that the gunny bundle contained yams and other root crops. When the fourth accused came with P. W. 2 in his hold P. W. 3 asked him who he was. The third accused told P. W. 3 at the time that P. W. 2 was the third accused's servant, that the fourth accused was the third accused's brother-in-law and that the fourth accused's name was Gangadharan. P. W. 3's evidence shows that the third accused was very well-known to him. He had worked under P. W. 3 as a cleaner of the car. The third accused is a Muslim. It is difficult to believe that the third accused would have dared to tell P. W. 3, when enquiries were made by him, that the fourth accused who was a Hindu, was his brother-in-law.
20. At a place near the 9th hairpin-bend the car was stopped to enable the third accused to answer the first call of nature. After the accused persons got out P, W. 3 is said to have seen the dicky being opened and the gunny bundle being taken out. Thereafter the gunny bundle containing the dead body was thrown into the gully. On enquiry by P. W. 3 as to what the bundle contained the second accused told him that a person who was inimical to the second accused had committed suicide in the second accused's house, that it was his dead body which was being dumped in the steep precipice below and that that was being done because he had no money to get the post-mortem conducted. He pleaded at that time that he did not have money even to purchase poison to commit suicide. On hearing all these P. W. 3 is said to have got suspicious and refused to proceed further. But he proceeded further only on account of threats issued by the accused persons. On the way back when the car started from Noor Lodge P. W. 3 enquired with the second accused as to whose dead body really it was that had been thrown out into the gully from the top of the hill. At that time the second accused is said to have told him that it was really that of Pylee who used to travel in P. W. 3's car. If all these facts sworn to by P. W. 3 are accepted he had definite information as to whose dead body it was that had been thrown out into the gully at least by the time he left Noor Lodge for going back to Meenangadi. There were several police stations on the way. P. W. 3 returned with the car to Meenangadi by 8 a. m. on Oct. 31. His deposition was that after going back to Meenangadi he took two more trips with the car to different places that day and that after all that he took the car to Calicut and kept it in a garage there. After keeping it there he went to Kunnamangalam and stayed there for about five days. Only on Nov. 14, he informed the police about the matter. The conduct of P. Ws. 2 and 3 as spoken to by them is strange. Their conduct was not likely to be that of persons who had actually seen the murder or the secreting of the dead body.
21. The car said to have been driven by P. W. 3 is in the name of P. W. 15. According to P. W. 3 there was an agreement between him and P. W. 15 by which he was allowed to use that car. No record was produced to prove that agreement or to show that P. W. 3 had anything to do with that car. If it was being used as illicit taxi he would have been completely under the influence of the Police.
22. When the car with the dead body inside was proceeding from Meenangadi Bazaar to the 9th hair-pin-bend it was stopped at Chundale where 10 litres of petrol was purchased. According to P. W. 3 the first accused at that time gave the second accused some money, out of it the second accused gave P. W. 3 Rs. 100/-, and P. W. 3 paid Rs. 37 odd as the price for 10 litres of petrol and took the balance for himself. The evidence of P. W. 2 was that P. W. 3 did not get out of the car at all at that time and that it was the second accused who went to the bunk, purchased petrol and paid the money.
23. Even as regards the dumping of the dead body into the gully the versions given by P. Ws. 2 and 3 were conflicting. P, W. 3 said that from the dicky the gunny bundle was taken by accused Nos. 2 and 3 and they all together pushed it into the gully. P. W. 2 said that the car was stopped at the right side of the road, that the gunny bundle was then taken out and lifted on the head of the first accused, that he crossed the road with the head-load and came to the left side, that then he climbed the bund at the left edge of the road and from there threw the gunny bundle into the gully. If his version is to be accepted accused Nos. 2 and 3 were on the right side of the road at the time and they had not taken part in the throwing of the dead body into the gully. The evidence of P. Ws. 2 and 3 is thoroughly unreliable.
24. Certain circumstances are also relied upon by the prosecution to connect the accused with the crime. The most important circumstance is the recovery of the dead body pursuant to information given by the second accused. P. W. 38 is the Sub-Inspector of Police who arrested the second accused and P. W. 40 is the Circle Inspector who took up the investigation from P. W. 38. The second accused informed P. W. 38 that if he was taken to the place to be pointed out by him he would show the dead body. P. W. 38 recorded it. On the strength of that information P. W. 40 took the second accused to the place he had promised to point out and recovered the dead body. The gunny bundle containing he dead body was actually taken out of the gully and brought to the road by P. W. 7, a person enagaged for that purpose by P. W. 40.
25. Recovery of the dead body by itself cannot throw suspicion on an accused. But it would become an item of circumstantial evidence against him if it was as a result of information given by him that the recovery was made. As a general rule, as provided in Sections 25 and 26 of the Evidence Act, confession made to police officer or confession made while in police custody is inadmissible. But if as a consequence of it an incriminating fact is discovered, then, as provided in Section 27 of the Evidence Act, which is reproduced below, so much of such information as led to the recovery is admissible and that along with the recovery can be used as an item of evidence against the accused.
27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
The justification usually given for the provision in Section 27, which is an exception to the prohibition contained in Sections 25 and 26 of the Act, is that the discovery of the incriminating fact is a guarantee that the information given is true. It is really an application of the principle that the end justifies the means.
26. However voluntary a confession may be it is totally inadmissible according to the Hebrew law, Halacha, In the United States, as regards confession, a doctrine has grown called 'the fruit of the poisoned tree' which makes it admissible only on satisfaction of certain stringent conditions. In our country, however bad the means employed in obtaining the information may be, Section 27 of the Evidence Act authorises the court to ignore those means and act on the information if the end justifies it, that is, if mean recovery is made in consequence of the information. No doubt only 'so much of information' 'as relates distinctly to the fact thereby discovered' is made admissible but that is equally bad as the other parts if the means employed are bad. And the only justification stated for its admissibility is guarantee of the information being true. But is truth the sole goal of a Court administering justice While the goal of a fact finding tribunal is simple truth that of a court of law is justice.
27. Trained dogs are useful to make recoveries of incriminating articles like murder-weapons and dead bodies. After ascertaining through such dogs or otherwise the secret places where they are hidden it is easy for the police to get them taken out from those places by the accused and then rely on them after making it appear that they were recoveries made on information given to them by the accused. If there are two accused persons in a murder case, available oral evidence is that it was the first accused who committed the murder and Police comes to know from the second accused the secret place where the murder weapon or dead body is hidden then in order to make the discovery an item of evidence to corroborate the evidence of the eye witnesses it is very easy for the police to make the first accused take out the weapon or dead body from the hidden place in the presence of respectable persons and for the police to say that first accused had informed them in secret the place where the weapon or dead body was kept, and that it was as a consequence of it that the recovery was effected. When there are such possibilities is the discovery of the incriminating article sufficient to justify the admission of the information which otherwise would have stood inadmissible? The provision in Section 27 of the Evidence Act which can without difficulty be misused by the police may have served the purpose of a colonial power to preserve a weak social structure and to keep the nation under subjugation and check. But is it necessary to retain that provision after the nation has become free, Indian Society has become strong enough to put away fear and can afford to give suspected persons treatment that is really generous and there is respect all round, for the dignity of man and human rights
28. Our Evidence Act has remained the same for more than a Century in spite of criticism of it from several quarters. On the one side there is plea for liberalisation of its provisions and making them more informal and on the other for imposition of more restrictions in admitting evidence. Those who plead for liberalisation ask for elimination of the exclusionary rules of evidence like hearsay, privileged communications and confessions made to police officers and those who plead for imposition of more restrictions ask for providing no exception whatsoever to the prohibition regarding admission in evidence of statements made by an accused to police officers, or in other words they want Section 27 of the Evidence Act to be repealed.
29. On a close look at the difference in the approaches of these two schools of thought it can be seen that it is basic and that it stems from conflict of values - value of truth and value of justice. Although at first blush it may appear that there cannot be any conflict between the two values, oftentimes there is conflict between them. This aspect requires some elaboration.
30. Just like the value of truth there are other values like those of human right of an accused, privacy, professional secrecy and confidential nature of communication between husband and wife. Society desires to protect those values even at the expense of truth. Then starts the conflict between the value of truth and value of justice.
31. With the advancement of science and technology use of third degree methods has given way to new techniques like use of Narco-analysis, Hypnosis, and Lie-detector apparatus called Polygraph and administration of truth drugs and truth serums to get at truth from accused. These new methods are as inhuman and unethical as the old. By use of some of these methods an accused can be broken down and he would tell the truth which if he was conscious he would lie convincingly. Use of these methods adversely affect the health of the accused on whom they are employed and often produce in him diseases like schizophrenia. At the end of the trial he may sometimes be found to be innocent also. Even without resort to confession police can secure conviction based upon recovery of incriminating articles in consequence of information received from the accused as a result of illegal interrogation. All these may serve truth but they are against the fundamental human rights of an accused. American Courts do not permit admission of such evidence with the result that an accused who is really guilty is allowed to go scot-free on account of the conduct of the police. This is a classic example of the prevalence of value of justice over value of truth.
32. The conflict between the two opposing schools of thought in the development of the law of evidence can be resolved only by deciding which value, whether it is the value of truth or the value of justice, that has to be given more importance in a given matter in a particular situation. In many matters while value of truth is given more importance than value of justice in the inquisitorial procedure prevalent in the continental system including Russian it is just the contrary in the English and American system of trial process.
33. It is high time to consider whether our Evidence Act which was I enacted more than a century back in the Colonial days of the West should not be radically altered to suit the genius of the Orient, Before embarking on any reform in that direction careful study has to be made about the clear demarcation to be made of the areas where each of the two values - value of truth and value of justice - should be allowed to prevail over the other. Serious thought has also to be given to the question whether the provision as it is in Section 27 should not be taken away from the Evidence Act, it being a blot affecting the self-respect of the nation. But so long as that section forms part of our Evidence Act courts have to give effect to it.
34. It was argued on behalf of the accused that the recovery of the corpse in the present case could not be treated as one under Section 27 of the Evidence Act because the person who received the information from the accused and the person who effected the recovery were not one and the same. This involves a question regarding the application of that section. The information contemplated by the section should be one which should have at the giving end the accused and at the receiving end a police officer. If on such information given and received a recovery is made Section 27 makes it admissible. The 'fruit of the poisoned tree' is allowed to be proved to that extent. There is absolutely nothing in the section to indicate that the person who discovers the incriminating fact should be the identical person who received the information. To come under the section it is sufficient if discovery, by whomsoever it may be, is made consequent on information given by the accused to a police officer. In short for that section to apply the person who received the information and the person who made the discovery need not be the same. The recovery of the dead body in the present, case is one perfectly in accordance with the provision in Section 27 of the Evidence Act.
35. The evidence of P. Ws. 7, 38 and 40 shows stink emanated from the dead body at the time it was taken to the road. If that was the condition of the dead body the place from where it was recovered could not have remained a secret.
36. The evidence of P.Ws. 1 and 7 shows that even before they proceeded from Meenangadi to the 9th hair-pin-bend there was a general talk in the Meenangadi Bazaar that Police had gone to that place for recovery of the dead body. If really there was such a general talk in the locality even before the recovery no value can be attached to the recovery.
37. The iron rod, M.O. 6, was recovered pursuant to information given by the first accused, the pair of sandals, M.O. 2, and charred remains of clothes, M.O, 15, were recovered pursuant to information given by the second accused, the watch, M.O. 3, was recovered pursuant to information given by the third accused and the soda bottle, M.O. 10, was recovered pursuant to information given by the fourth accused. The evidence regarding the recovery of M.O. 6, shows that it was really buried and that after it was unearthed it was wiped before it was taken into custody. M.O. 2 is an ordinary pair of sandals. The charred remains of clothes are also easily available item. M. O. 3, watch, was recovered from the third accused's house, where several others also reside. Although, P.W. 2 deposed in court that Pylee was robbed of his watch and cloth he spoke about it for the first time only in court, months after the occurrence. Bottltes like M.O. 10 are easily available at all places. In such circumstances no importance can be attached to these recoveries. It. is unsafe to act upon the prosecution evidence. It has not been proved beyond reasonable doubt that the accused persons are guilty of the offences for which they are charged. Therefore these appeals are disposed of by setting aside the convictions and sentences of accused Nos. 1, 2, 3, and 4 and acquitting them.