K. Bhaskaran, J.
1. The appellant is Sri Gabriel, aged 27, son of Chinnaswamy the accused in Sessions Case No. 8 of 1981, on the file of the Sessions Court, Palghat. The case against him was that he had committed the murder of his mother, Parvar Ammal, aged 60, by giving her a blow with M. O. 1 spade and pushing her into the well in the property belonging to the deceased, at Colambara. The trial court accepted the prosecution case, and finding the accused guilty, convicted him under Section 302 I.P.C. and sentenced him to imprisonment for life. It is aggrieved by this conviction and sentence this criminal appeal has been preferred.
2. The prosecution case briefly stated was as follows : - The accused is the son of deceased Parvar Ammal. He was married and had three children. They had some agricultural land. There used to be quarrel between the mother and the son on account of the laziness on the part of the son. On the morning of 2-12-1980 Parvar Ammal had scolded the accused, and had asked him to leave the house if he could not do any work. He had then replied that he would go away only after doing away with her. Parvar Ammal, with her daughter P.W. 1, Jayaseeli Mari, her sister P. W. 2 Sowriyammal, and another woman had thereafter left for the paddy field to do some agricultural work. After the day's work they returned by about 5 p. m. While P. Ws. 1 and 2 and the other woman were standing by the side of a rock near the house of Parvar Ammal, they saw the accused and Parvar Ammal leaving towards the well and pump-set belonging to them for watering the ragi-cultivation. The accused was seen carrying with him a bucket and a spade, and Parvar Ammal an earthenware pot with her. P. W. 3. Smt. Kolantharasu was the daughter of a brother of the deceased husband of Parvar Ammal. She also was residing close by. She had seen the accused and Parvar Ammal going in the direction of the well. Sometime later she saw the accused returning from the side of the well, the bucket alone in his hand. The accused had an younger brother by name Santhappan. He was away on some errand. On his return home at about 5 p. m, he made enquiries about his mother Parvar Ammal, He was told by P. W. 1 and others that she had gone to the field to irrigate the cultivation. When he was waiting in the house the accused went to him and told him that their mother was pushed into the well by one Arogiaswamy and six others and that they also chased him, but he had escaped. He advised him (Shanthappan) that they should go and get themselves admitted to the hospital. Santhappan did not believe that story, and told him that it might be the accused himself who pushed their mother into the well. Shortly thereafter the accused left the place after having changed his clothes. Sanhtappan along with others went to the well, looked into it, but did not see anything in the well. The next morning also the search was continued; and having found the dead body of Parvar Ammal floating in the well, at 9 a.m. that day Santhappan gave Ext. P5 first information statement before the Kasaba Police Station a Palghat. A case of suspicious death was registered by P. W. 9 the S. I. of Police. Ex. P5 (a) is the F.I.R. in Crime No. 215/80 registered on the basis of Ex. P5 F. I, S. He proceeded to the scene of occurrence and held the inquest on the dead body of Parvar Ammal. Ex. P1 is the inquest report. He questioned the witnesses that day and the next day. The accused made himself scarce. He was. however, apprehended on 12-12-1980 at a place called Chulliamada while waiting for bus. P. W. 9 questioned the accused, and pursuant to the information given by him M. O. 1 spade was recovered from the well which was stated to have been used for beating Parvar Ammal. After arresting the accused, P. W. 9 sent a report Ext. P6 to the Judicial Magistrate of the II Class, Palghat, altering the offence into one falling under Section 302 I.P.C. After completing the investigation, the final report charge-sheeting the accused was filed by P. W. 9 before the Magistrate who subsequently committed the accused to the Court of Session, Palghat to stand his trial.
3. P. W. 5 Doctor M. C. Ayyappan Pillai, Assistant Surgeon, District Hospital, Palghat, was the doctor who conducted the autopsy and issued Ext. P2 post-mortem certificate. The cause of death, according to P. W. 5, was asphyxia due to drowning. Though the prosecution had a case that the accused had given the deceased a blow with M. O. 1 before she was pushed into the well, it was not suggested that that injury was fatal. The trial court has entered a finding that Parvar Ammal died of asphyxia due to drowning. From the evidence of P. W. 5 who conducted the autopsy and issued Ex. P5 post-mortem certificate of P. W. 9, who conducted the inquest and prepared Ext. P1 inquest report, and of P. Ws. 1 to 3 the relatives of the deceased Parvar Ammal, it is clear that, she died on 2-12-1980 by drowning.
4. The point that remains to be considered and decided is whether the accused is guilty of the offence of committing murder of Parvar Ammal. This is a case restine purely on circumstantial evidence. The prosecution has examined nine witnesses, marked Exts. p-1 to P-7 and produced M. Os. 1 to 7. P. W. 1 is Jayaseeli Mari who is the daughter of deceased Parvar Ammal. In her evidence she has stated that on 2-12-1980 she, Parvar Ammal, P. W. 2 and another woman had gone to the paddy field for work, and it was about 5 p.m. that they returned home. Thereafter, while she, P. W. 2 and the other woman were standing near their house, they had seen the accused and Parvar Ammal going towards the well, ostensibly for watering the ragi cultivation; the accused was having a bucket and a spade in his hands; and Parvar Ammal was having a earthenware pot in her hand. After some time the accused alone returned, and that too with the bucket alone in his hand, without the spade. Santhappan, the younger brother of the accused, who was on some errand that evening, had returned home by about 5 p.m., and on his way when he reached near home, had asked P. W. 1 and others whether Parvar Ammal had not returned from work. He was told by them that she had gone for watering the ragi cultivation after return from the paddy field. A little later Sanlhappan was told by the accused that one Arogiaswamy who was a first cousin of his (his father's brother's son) with six others had pushed Parvar Ammal into the well. He also suggested to him that it would be belter for both of them to get themselves ad-milted to the hospital. The immediate reaction of Santhappan then was that it must have been the accused who pushed his mother into the well. The accused changed his clothes and went away. Though Santhappan made search he could not see any sign of his mother having been in the well. The next day also searches were made. Ultimately Parvar Ammal's body was found floting in the well. It was thereafter that the said Santhappan went to the Police Station and gave the first information. It may here be noted that it is this brother Santhappan who went to the Police Station at 9 a.m. on 3-12-1980 and gave Ext. P-5 F. I. Statement to P. W. 9 the S. I. of Police; three days prior to the date fixed for the commencement of the trial of the case, however, he had commuted suicide and was not, therefore, available for examination in court. P. W. 1 had also spoken about the motive, namely, that Parvar Ammal had on the morning of 2-12-1980 told the accused that it was only if he did work he could live with them; otherwise he should go anywhere he liked; and live as he wanted, to which the accused had replied that he would go only after doing away with her. She had also identified M. O. 1 spade which was taken from out of the well by P. W. 6 Mammi, pursuant to Ex, P-7 statement furnished by the accused. P. W. 2 is the sister of Parvar Ammal. She has spoken on all material points in corroboration with what P.W. 1 had spoken. P.W. 3 is the daughter of Parvar Ammal's deceased husband's brother. She also was staying very close to them. She had spoken that she had seen the accused and Parvar Ammal going towards the well when she was going in the opposite direction. She also proved M. O. 1 spade. P, W. 4 is only an attestor to the inquest report, Ext. P-1. P. W. 5 as already seen, is the Doctor who conducted post-mortem over the dead body of Parvar Ammal, P. W. G is the person who took out the dead body of Parvar Ammal from the well. P. W. 7 is the village assistant who prepared Ext. P-4 plan, p. W. 8 is the witness examined to prove the arrest of the accused and the preparation of Ext. P-3 mahazar for the recovery of M. O. 1 spade. P. W. 9 is the S. I. of Police who held the inquest, arrested the accused, and after completing the investigation filed the final report charge-sheeting the accused.
5. The prosecution relies mainly on the circumstances that Parvar Ammal was last seen in the company of the accused; as spoken to by P. Ws, 1, 2 and 3, the accused had made himself scarce : and that M. O. 1 spade was recovered from the well on the information contained in Ext. P-7 statement furnished by the accused, when he was arrested on 11-12-1980. The learned Sessions Judge found that these circumstances were such that the only conclusion possible was that the accused was guilty of the charge brought against him.
6. The tests to be satisfied where a case rests upon circumstantial evidence as in the present case, have been laid down by the Supreme Court in Gambhir v. State of Maharashtra : 1982CriLJ1243 in the passage quoted below:
(1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established : (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.
7. The observation of the Supreme Court : 'the circumstantial evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence' is intended inter alia to remove the misconception in regard to the scope and applicability of what is known as the 'last found together' theory in murder cases resting on circumstantial evidence. We will do well to underline the significance of the words 'the circumstantial - evidence should be inconsistent with his innocence' appearing at the end of the passage quoted. This crucial aspect of the legal position does not appear to have been so explicitly stressed in the earlier decisions. This injunction by the Supreme Court casts an additional burden on the prosecution to establish, in cases which rest on circumstantial evidence, that the circumstantial evidence is inconsistent with the innocence of the accused besides its being consistent with his guilt. True it is, in a murder case, the evidence that the deceased was last found in the company of the accused is an important link in the chain of circumstances pointing to the guilt of the accused; but H could not be deemed to be conclusive, unless it is further established that during the interval between the time when they were last seen together and the time at which the victim died every circumstance was inconsistent with the innocence of the accused.
8. In this case, no doubt, there is the evidence of p. Ws. 1, 2 and 3 that Parvar Ammal was last seen with the accused near the well, and that a little later the accused was seen returning with the bucket alone in his hand. Whether this, coupled with the recovery of M. O. 1 spade (assuming that the recovery is found acceptable) would be sufficient to hold that it was the accused, the accused alone, who would have committed the crime is the point to be considered. To make out a fool-proof case for the prosecution is it possible to rule out absolutely the probability of some other person or circumstance having intervened in the meanwhile so as to make that the circumstantial evidence was inconsistent with the innocence of the accused? Here, even in Ex. p-5 First Information Statement, we find a version, as given by the accused, that it was one Arogiaswamy, inimically disposed towards himself, his mother and the other members of his family on account of prior litigations and other reasons, who with six others went near the well and pushed Parvar Ammal down into the well. May be that, that this case set out by the accused has not been established by him. The question, however, is whether, in consonance with the guidelines given by the Supreme Court, to which reference has already been made, the prosecution has succeeded in establishing that there was no possibility of such a circumstance . intervening, and the proved circumstances are totally inconsistent with the innocence of the accused. On a careful examination of the evidence adduced in the case we are constrained to hold that the prosecution did not succeed in establishing that this test was satisfied.
9. The Government Pleader appearing for the Slate submitted that the conduct of the accused in this case lends support to the prosecution case that it was he, he alone, who had committed the crime. According to him, if the accused was innocent as he pleaded, he would have raised a hue and cry when he saw his mother being pushed down into the well, let it be by Arogyasamy or any other person. From Ex. P-5 First Information Statement we find that he had run to Santhappan and told him that Arogya-swami and others pushed her into the the well. It was also submitted that the suggestion he gave to Santhappan to get themselves admitted to the hospital also speaks about the guilty conscience of the accused. To add to all these, according to him, the fact that the accused made himself scarce, and his whereabouts were not known till he was arrested on 11-12-1980 was a positive circumstance to show that it was the accused who had committed the crime. We do not think that from these circumstances any inference as suggested by the Government Pleader could be safely drawn. We have to remember as soon as Santhappan was told that Arogyaswmy and six others had pushed down Parvar Ammal into the well, his reaction to which he gave expression, was that the accused himself might have down it. If that be so, out of fear and fright if he had tried to be away from the reach of the police one could not blame him. That apart, these are not the circumstances from which a definite conclusion Or inference could be drawn that it was only the accused who committed the offence. There are so many other imponderable things which could have intervened between the time when the accused and the deceased were last found together, and the time of her death, unless there is evidence to the contrary to exclude any such eventuality.
10. One other important circumstance sought to be relied on by the prosecution, which found acceptance with the trial court, is the recovery of M. O. 1 spade on the information contained in Ext. P-7 statement alleged to have been given by the accused to P. W. 9 Sub-Inspector of Police after he was arrested. We are amazed to see that what is purported to be a statement of confession running into five pages, stated to have been given by the accused, while in custody of the Police Officer, forms part of the records of this case, though the portion admissible in evidence is the part of a sentence at the very end of the statement reading as followed, bracketed and marked Ext. P-7 : - (Matter in vernacular hence omitted-Ed.) It is most unfortunate that the learned Sessions Judge has allowed this document to come on record. It has been done in breach of the provisions of Sections 24, 25 and 26 of the Evidence Act, both in spirits and letter. This practice of introducing wholesale confessions to the police under the guise of recovery Under Section 27 of the Evidence Act has been deprecated by the High Court long long ago, and it finds full expression in the decision rendered by Anna Chandy, J. in Karunakaran v. State 1960 Ker LT 959 from which the relevant passage has been quoted with approval by a Division Bench which consisted of Anna Chandy and Govinda Menon JJ, (Mohammed v. State of Kerala 1962 Ker LT 120 : 1963 (1) Cri LJ 175). That passage, couched in the inimitable language of Anna Chandy. J., quoted in para 14 at page 127 of the report of the Division Bench case reads as follows (at p. 179 of Cri L J):
The practice of attestation of confessional statement by witnesses is an objectionable one. It prejudices the accused to safeguard whose interest the legislature has enacted Sections 24 - 26 of the Evidence Act. It has no legal sanction behind it. I think there is no harm in recording the accused's statement in the first person at any great length in the Case Diary when the accused is arrested and questioned and in the preamble to the recovery mahazar reference to the reasons leading to the recovery may be made.' (Vide para 14).
The whole thing appears to be an 'intentional whittling down' of the wholesome provisions of Sections 25 and 26 of the Evidence Act, It is very easily said that the incriminating portion of a lengthy confessional statement should be excluded. But it is very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketed portion and remain uninfluenced by the confession of the accused. This feat is possible of performance only by a few specially trained experts. There is no reason why the overburdened judicial officers should be saddled with an additional burden which has not the support of law or procedure. (Vide para 9)
Apart from the fact that prejudice has been occasioned to the accused by the wholesale production in court of the confession statement, incriminating himself, alleged to have been given by him to the police, so as to form part of the records, we have little doubt that the evidence touching the alleged recovery is fabricated. The prosecution case as stated in Exts. P-3 and P-7 is that the recovery was made on 11-12-1980 after the accused was arrested pursuant to the information, (Ex. P-7) furnished by him. From the evidence of P. Ws. 1 and 3, however, it could be seen that actually they were shown M. O. 1 as early as on the 4th Dec. (when they were questioned two days after the demise of Parvar Ammal). This clearly is an instance of the abuse of the provisions contained in Section 27 of the Evidence Act.
11. For the foregoing reasons we allow the appeal, set aside the conviction and sentence passed against the accused, and acquit him of the charge brought against him. He will be set at liberty forthwith.
12. We should like to place on record our sense of appreciation of the pains Sri M. M. Mohammed, the counsel appearing as State brief-holder, has taken to study and marshal the facts carefully; and to present the case of the appellant accused in its true legal perspective. We are told that for studying and arguing the case the total remuneration to which the counsel is entitled is Rs. 200/- only, which rate in our opinion is not commensurate with the hard work the counsel has to put in, and the heavy responsibility he has to shoulder; it deserves an upward revision by bringing in suitable amendments to the rules in that behalf.