K.K. Narendran, J.
1. A youngster, working in a hotel, developed an intimacy with a widow living in a part of a line building with her two school going children. Naturally, the neighbours did not relish this. Scandals spread in no time, Wall-posters appeared connecting the youngster with the widow. The widow gave a written complaint to the Police alleging that her neighbours were going to liquidate her. Those whose names were in the complaint were called to the Police Station and warned. Sometime laer, one evening, the children went to attend a bhajan in the local temple. When they came back, what they could see was the dead body of their mother.
2. The accused in S. C. No. 6 of 1980 of the Court of Session. Tellicherry is the appellant. The prosecution case is as follows: The deceased, a widow, was living with her two children in a part of a line building at Chungom within the jurisdiction of the Manantoddy Police Station. The accused was employed in a hotel not tar away from the residence of the deceased. As the accused frequented the house of the deceased, that gave rise to scandals. The deceased told the accused not to visit her. This enraged the accused and he threatened to kill her. On 15-12-1979 by about 7 p.m. the deceased's children, P.Ws. 1 and 2, went to the neighbouring temple for a 'Bhajana'. The deceased was alone in the house. They returned by about 9 or 9-30 p.m. They saw the accused coming out of the house. There was no light in the house. They lighted a lamp. They saw their mother lying in the kitchen. Even though they called her, she did not respond. They cried aloud. P.W, 3 Sainaba and P.W. 5 Madhavan, neighbours, came. They saw the woman lying dead.
3. P.W. 5 Madhavan took P.W. 1 Rajan to the Manantoddy Police Station. P.W. 1 gave Ext. P-l First Information Statement to P.W. 14 Additional Sub-Inspector of Police at 11-30 p.m. on the same night. P.W. 14 registered a case as Crime No. 262 of 1979. Ext. P-l I is the F.I.R. P.W. 14 informed P.W. 15 Circle Inspector of Police about the occurrence and deputed the A.S.I, and two constables to the place of occurrence.
4. P.W. 15 took over the investigation and went to the place of occurrence. From there, P.W. went in search of the person suspected as the accused in the case, On the way the A.S.I, and P.Ws, 1 and 5 also joined them. They went to the tea-shop of one Thalapuzha Abdu. The accused was there. As the shirt fp. 1) worn by the accused had bloodstains, the same was seized as per Ext. P-2 mahazar. The accused was kept under surveillance. On 16-12-1979 at 8 a.m. P.W. 15 conducted the inquest. Ext. P-4 is the inquest report. Then the scene mahazar Ext. P-3 was prepared at 6-30 p.m. P.W. 15 questioned the witnesses. On 16-12-1979 the accused was arrested. P.W. 9 conducted the autopsy on 17-12-1979 and Ext. P-5 is the post-mortem certificate.
5. By Ext. P-6 letter dated 29-12-1979 P.W. 15 requested P.W. 10 the Judicial Magistrate of the First Class, Manantoddy to conduct an identification parade to identify the accused bv P.W. 4 Saida-lavi, a deaf and dumb 'boy, with the help of his mother, P.W. 3 Saina, or an expert. Accordingly, on 6-2-1980, P.W. 10 conducted the identification parade and drew up the proceedings and directed the same to be kept in a sealed cover. P.W. 10 also directed that P.W. 15, the Investigating Officer, be informed of the identification parade and of the fact that P.W. 4 identified the accused as the person who committed the offence. P.W. 15 completed the investigation and filed the charge-sheet before the Judicial Magistrate of the First Class, Manantoddy on 15-2-1980. The case was thereafter committed before the Court of Session, Tellicherry.
6. Before the Court of Session, P.Ws. 1 to 15 were examined and Exts. P-l to P-ll were marked on the side of the prosecution while Exts. D-l and D-2 were marked on the defence side. M.Os. 1 to 7 are the material objects produced. P.Ws. 1 and 2 are the children of the deceased Janu. P.W. 1 Rajan, a boy aged 14, has deposed: When the witness and his sister were returning from the temple by about 9-30 p.m. they saw the accused coming out of their house as they reached their house. The accused asked them to go to their house immediately. Then he (the witness) saw the front door of the house remaining open and there was no light inside the house. He went to the owner of the building, who was their next-door neighbour, got a match box and lighted the lamp. Then he saw his mother sitting leaning against the wall in the kitchen. He called 'mother'. Mother did not respond. He cried aloud. Then P.Ws. 3 and 5, the neighbours, came. Mother was dead. Along with P.W. 5 he >vent to Manantoddy Police Station and gave Ext. P-l First Information Statement, The accused used to visit their house. One month prior to the occurrence, the accused and his mother fell out. Two days prior to the occurrence, his mother told the accused that he should not thereafter visit her. Then the accused told his mother that he will go only after killing her. The witness identified M.O. 1 as the shirt which the accused was wearing when he saw the accused on the night on which the occurrence took place, In his cross-examination, P.W. 1 has admitted that his mother filed a complaint before the Police against many people in the locality about a month prior to the occurrence alleging that they were going to kill her. Baby (C.W. 6) was among the persons against whom his mother complained to the Police and P.W. 15 Circle Inspector called all those persons to the Police Station in that connection, P.W. 1 has also stated that wall-posters appeared taking exception to the intimacy his mother had with the accused. It has also been brought out in the cross-examination that in the line-building in which they were residing, there were 10 to 15 other tenants and there were shops and other houses in front of the building on the other side of the road. He has also said that he did not sign Ext. P-l on the night on which the occurrence took place when he went to the Police Station and it was the next day that he signed the same. P.W. 2 is the daughter of the deceased, aged 9. She has deposed to most of the details spoken to by her brother P.W. 1. P.W. 3 is Saina, a neighbour, living in one of the rooms in the line building. She has in her evidence said: On the night on which the occurrence took place, herself with P.W. 4, her deaf and dumb son, went for taking water. On her way she saw the deceased and she did not see anybody else. She returned with water. Her son waited at the well for his usual job of washing buses. She went to her house and slept. Sometime later, her son, P.W. 5, came and woke her up. P.W. 4 informed her by means of gesture that the accused was beating the deceased and throttling her. When she was about to go to the place where the accused and the deceased were, she heard the cries of P.Ws. 1 and 2. Then P.W. 5 Madhavan and herself went to the room where the deceased was living. She saw her lying dead. P.W. 3 has in her cross-examination said that she had not seen the accused going to the room of the deceased on many occasions. P.W. 4 Saidalavi, a deaf and dumb boy who is the son of P.W. 3, was also examined, it seems, without the Assistance of any expert or any other person who was in a position to communicate with him. In his chief examination Saidalavi has said that the accused killed the deceased by beating on her head and by throttling. The defence counsel expressed his inability to cross-examine the witness by gestures and hence the witness was not cross-examined. P.W. 5 Madhavan is another neighbour. It was P.W. 5 who accompanied P.W. 1 to the Police Station for giving Ext. P-l First Information Statement. He has spoken to about the recovery of M.O. 1 shirt and proved Ext. P-2 mahazar. He has also said that he did not verify whether there were bloodstains on the shirt recovered. In his cross-examination he has said that the shirt was recovered when the accused got into the jeep. He has also said that he signed Ext. P-2 mahazar at the Police Station and that P.W. 1 also signed the same there. P.W. 6 Siddique is another employee of the hotel in which the accused was working. In his cross-examination he has said that on the 14th evening at 4 p.m., the day previous to the day on which the occurrence took place, the deceased came to the hotel, took tea and the accused paid for her. He has also said that the accused borrowed Rs. 2 from one Kumaran and gave the same to the deceased. P.W. 10 is the Judicial Magistrate who conducted the identification parade. The report of the identification parade prepared by P.W. 10 was not allowed to be marked on the ground that no copy of the same was given to the accused. He has in his. evidence said that he conducted the identification parade as per Ext. F-6 requisition from P.W. 15 Investigating Officer. P.W. 11 is the Village Assistant who prepared Evt. p-7 plan. P.W. 14 is the Additional Sub-Inspector, Manantoddy Police Station who recorded Ext. P-l First Information Statement. He has said that he read out Ext. P-l to P.W. 1 and got it signed by him. P.W. 15 is the Circle Inspector of Police who conducted the investigation. He has said that he took into custody M.O. l shirt from the accused as per Ext. P-2 mahazar as there were blood-stains on the same. In his cross-examination P.W. 15 has said that P.W. 2 did not tell him that she saw the accused on their way back to their house when she was Questioned at the time of inquest.
7. The stand taken by the accused in his examination Under Section 313 of the Code of Criminal Procedure is one of total denial. He has denied the seizure of M.O. shirt from him. His case is that he was not wearing any shirt when he was taken into custody. He has also stated that 2-3 weeks prior to the date of occurrence, the deceased gave a complaint to the Police against some of her neighbours alleging that they went to her house and threatened her. Those persons were called to the Police Station and warned. They were asked to appear before the Police the next day. But they did not turn up.
8. The Court of Session came to the conclusion that all the 'facts, circumstances and evidence are capable of proving beyond reasonable doubt that it was the accused who beat and strangled the deceased on the night of 15-12-1979 and thus caused her death'. Accordingly, the accused was found guilty Under Section 302, I.P.C. and sentenced to undergo imprisonment for life. It is the above conviction and sentence of the Court of Session that have been challenged by the accused in this appeal.
9. The points that arise for consideration are; (1) In a murder case without examining the only eye-witness, is it safe to convict the accused on the circumstantial evidence and that too when some of the circumstances proved are not incompatible with the innocence of the accused; (2) what exactly is the procedure to be followed by the Court in the examination of a deaf and dumb witness; and (3) when the eye-witness who identified the accused in an identification parade could not be cross-examined for no fault of the defence, will any purpose be served by examining the Magistrate who conducted the identification parade.
10. The fact that the widow died on 15-12-1979 is not disputed. P.W. 9 is the doctor who conducted the post-mortem and Ext, P-5 is the post-mortem certificate, According to P.W. 9, death was duo to asphyxia due to throttling. Then the further question is whether the accused can be held responsible for the death of the widow,
11. According to the prosecution, P.W. 4 Saidalavi is the only eye-witness to the occurrence. It is seen that P.W. 4 who is deaf and dumb was examined in chief before the Court of Session and his examination could not be conducted as the defence counsel could not cross-examine the witness. It is in the evidence of P.W. 10 Magistrate that P.W. 4 identified the accused in the identification parade conducted by him. No doubt, P.W. 4 who is the only eye-witness was essential to the unfolding of the prosecution case. This is not a case where the prosecution withheld a material witness and hence no question of drawing an adverse inference Under Section 114 illustration (g) of the Evidence Act arises. But at the same time, the fact that the evidence of the only eye-witness in the case is not available for being acted upon cannot easily be brushed aside. In a case where the charge against the accused is one for murder, in the normal Course it is not safe to convict the accused on circumstantial evidence alone without adducing direct evidence that can be given by the eye-witnesses. In the case of a conviction on the basis of the circumstantial evidence alone it goes without saying; that all the circumstances brought out should be consistent and consistent only with the guilt of the accused. If some of the circumstances are not incompatible with the innocence of the accused, it is not a conviction and it is an acquittal that should follow. In other words, if any of the circumstances brought out makes it probable that somebody else might have committed the crime, then there will be an element of doubt the benefit of which, no doubt, must go to the accused. In Rama Nand v. State of Himachal Pradesh : 1981CriLJ298 the Supreme Court has said:
It is well settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established, further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else.' (Para 17 of SCC); (Para 16 of Cri LJ):
In Ram Das v. State of Maharashtra 1977 SCC (Cri) 254 : 1977 Cri LJ 955 the Supreme Court has said:
We are constrained to observe that the High Court has not made a correct approach to this case. It has violated the rule of circumstantial evidence that where circumstances are susceptible of two equally possible inferences, the Courts should accept that inference which favours the accused rather than an inference which goes in favour of the prosecution. Secondly, the High Court does not appear to have kept in view the rule of appreciation of circumstantial evidence that the circumstances must be of a conclusive nature and tendency so as to be totally inconsistent with his innocence and are not explainable on any other hypothesis except the guilt of the accused.' (Para 5 (of SCC)): (Para 5 of Cri U).
12. In this case, there are a few circumstances brought out which militate against the conclusion that the accused is guilty. It is in the evidence of P.Ws. 1 and 2 that they saw the accused coming out of the house when they returned from the temple and the accused told them to go to the house immediately. P.W. 2 has also said that the accused told them that their mother was not well. If, as a matter of fact, the accused was responsible for the death of the deceased, there is no reason why he should say this to P.Ws. 1 . and 2. His attempt would have been only to escape unnoticed by anybody. It can very well be that when the accused came on his routine visit on that night, to his surprise, he saw the widow already killed by somebody else and he wanted to get away from the place because if he waited there, people will only say that he killed her. Another circumstance is that sometime prior to the occurrence, the deceased filed a complaint to, the Police against many people in the locality alleging that they were going to kill her. Those persons were called to the Police Station and warned. Even otherwise, the people of the locality did not like the deceased because of her intimacy with the accused. The fact that they took great exception to this is clear from the fact that wall-posters appeared connecting the deceased with the accused. As the deceased dragged them to the Police Station, the relationship between the deceased and her neighbours might have become more strained. To get rid of the trouble by this widow whose reputation was by no means good, somebody who was dragged to the Police Station might have taken her life. It is significant to note that even though ten to fifteen families were living in the same line building, when P.Ws. 1 and 2 cried aloud except P.Ws. 3 and 5 nobody else turned up ' pn knowing that the widow was killed. Going by the evidence in the case, the possibility of somebody else killing the widow cannot be ruled out. The prosecution has alleged a motive, When the neighbours began to object, the deceased asked the accused not to visit her, thereafter when the accused went one night the deceased did not open the door and the accused left threatening that he would kill her. But the evidence of P.W. 6 Siddique is that on the evening of 14-12-1979, the day previous to the day on which the occurrence took place, the widow went to the hotel where the accused worked and the accused borrowed Rs. 2 from one Kumaran and gave the same to her. The accused also paid for the tea taken by the deceased. In that case, it cannot be said that the accused continued to have any ill-will towards the deceased even though he once threatened to kill her. It cannot be said that all the circumstances brought out in the case when taken together can only lead to the conclusion that the accused and nobody else was responsible for the death of the deceased. In that case, the benefit of doubt must go to the accused. The Court of Session has only considered the circumstances which are against the accused. It cannot but be said that the Court of Session did not advert to the cardinal principles that should be followed in finding an accused guilty on circumstantial evidence alone.
13. In the deposition of P.W. 4 Saida-lavi before the chief examination begins it is seen recorded as follows by the Court of Session:
This is deaf and dumb witness. But when questioned by signs he can read and understand from the movement of our lips, hands and gestures and he gives reply also by gestures which are understandable.
After the above note the answers to the questions put in chief examination are recorded. What is then recorded is:
Cross Defence counsel states that he is unable to cross-examine the witness by means of gestures.
Then a question is seen put in cross-examination. But after the question what is recorded is: 'The gestures given in reply are not legible.' Para. 9 of the judgment of the Court of Session reads:
P.W. 4 is Saidalavi whose answers to the questions in chief-examination by gestures and signs, were recorded by me. But it so happened, that the questions put by the defence counsel could not be properly understood by the witness and therefore he could not give any answers to the said questions. Therefore, the evidence of P.W. 4 cannot be acted upon.
The indication in Section 282 of the Criminal P. C. 1973 is that the court can make use of the services of an interpreter to assist the court to examine a witness. In this case, it is not clear from the judgment or the deposition of P.W. 4 as to who assisted the court to elicit the answers given in the chief-examination. Admittedly, the witness Saidalavi is deaf and dumb. P.W. 3, his mother, has stated this fact. In that case, if he is to be examined, that can only be with the help of an expert or some person who is very much familiar with the witness. If somebody else is available, it is better the services of a person who is a witness in the case is not made use of to interpret his evidence or to converse with him. In Ah Soi v. King Emperor AIR 1926 Cal 922 : 1926 (27) Cri LJ 805 it has been held that a witness who took active part during the investigation of the case and who gave evidence before the committing Magistrate and who was willing to give evidence on the side of the prosecution in the Sessions trial should not be chosen as interpreter. The Calcutta High Court said that this is opposed to the elementary ideas of justice. Going by the records in this Sessions case, it cannot be said that the Sessions Judge had the assistance of any expert or any person familiar with P.W. 4 for his examination. As the learned Sessions Judge cannot be expected to have anything more than a layman's knowledge in conversing with a deaf and dumb person it was highly improper on his part to embark upon the examination of P.W, 4 without the help of an expert or a person familiar with his mode of conveying ideas to others in day-to-day life. It is in evidence that P.W. 4 used to get something by washing buses. So, not only P.W. 3 but some others in the locality might also have been able to decipher the gesture of P.W. 4 and converse with him. If the Court of Session had chosen to make use of the services of any such person, the evidence of this only eye-witness could have been made use of in the case.
14. In this case, an identification parade was conducted by P.W. 10 Judicial Magistrate of the First Class. It was after the examination of P.W. 4 was given up as the defence counsel expressed his inability to cross-examine the witness by gestures, that the Court of Session took the trouble of examining P.W. 10. For what purpose the Court of Session did this we are at a loss to understand. Under Section 9 of the Evidence Act, facts which establish the identity of anything or person whose identity is relevant are relevant in so far as they are necessary for that purpose. Identification parades do not constitute substantive evidence. By identification parade the investigating officer can satisfy himself of the bona fides of the prosecution witness. It also furnishes evidence to corroborate the testimony of the witness in Court. So, in a case like this where the witness who identified the accused in the identification parade could not bQ examined in Court the evidence of identification will have no value and no purpose will be served by the examination of the Magistrate who conducted the identification parade. It can only be a waste of public time and public money because the evidence of the Magistrate regarding identification is nothing but hearsay. In Caetano Piedade Fernandes v. Union Territory of Goa : AIR1977SC135 the S. C. has said:
Ordinarily, the person who is supposed to have identified the assailants at the test identification parade must himself give evidence in regard to the identification. If he does not himself give such evidence and leaves it to the officer holding the identification parade to-do so, the defence would be deprived of an opportunity of cross-examination for the purpose of showing that the witness had an opportunity of seeing the accused before they were brought for identification. In any event, the evidence in regard to identification at the test identification parade is at the highest, corroborative piece of evidence and if the evidence of Xavier suffers from serious infirmities and cannot be accepted, the evidence in regard to identification by him at the test identification parade cannot improve the situation.
In Chandy v. State (1980 Ker LT (SN) 54 Case No. 116) : 1981 Cri LJ NOC 70 (Ker) a Division Bench of this Court of which one of us (Janaki Amma, J.) was a party, has said:
An effective opportunity to challenge the identification during the parade will be available to the accused only if the witnesses themselves speak out to their participation in the parade. Absence of mention by the witnesses themselves about their identification of the accused during the parade will therefore prejudice the accused in their defence, if the court is to act upon such evidence.' In Nagina v. Emperor (1921 (1'9) All LJ 947) : 1926 (27) Cri LJ 813 (All) dealing with identification proceedings held in jail and statements of witnesses in the course of such proceedings, Lindsay, J. observed:These statements are of course not made on oath, and again, they are made in the course of extra-judicial proceedings. The law does not allow statements of this kind to be made available as evidence at the trial unless and until the persons who made those statements are called as witnesses. When these persons are called as witnesses then these previous statements become admissible, not as substantive evidence in the case, but merely as evidence to corroborate or contradict the statements made by these Witnesses in court (Sections 155 and 157 of the Evidence Act). If when a witness to identify is called in the Sessions Court and stated there that he can identify no one, there is obviously nothing to corroborate and so the evidence of the previous statement express or implied made in che course of the identification proceedings in the jail is not admissible.
In the instant case since the Court did not act on the evidence of P.W. 4, the evidence that the witness identified the accused during an identification parade is of no avail.
15. The seizure of M. O. 1 shirt from the accused as per Ext. P-2 mahazar, according to the Court of Session is a strong incriminating circumstance brought out in the case. As per Ext. P-2, M. 0. 1 shirt was seized from the accused at 1-45 a.m. on the night of 15-12-1979. Ext. P-2 and the shirt M. O, 1 have reached the Magistrate's Court only on 21-12-1979. The prosecution has given no explanation for the delay. Such delay is contrary to the directions contained in Section 102(3) of the Code of Criminal Procedure. Not only that, P.W. 5 in his evidence has said that himself and P.W. 1, the two attestors to Ext. P-2, signed the same only on 17-12-1979 after the post-mortem. P.W. 5 has also stated that he did not notice whether there was anything on the shirt. In the face of such irregularities the recovery of M. O. 1 shirt cannot be made use of against the accused.
16. In the result, we set aside the conviction and sentence of the Court of Session and acquit the accused on benefit of doubt. The Criminal Appeal is allowed. The accused who is in jail should be set at liberty forthwith,