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State of Kerala Vs. Thomas Cherian and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1982CriLJ2303
AppellantState of Kerala
RespondentThomas Cherian and ors.
Cases ReferredBadri v. State of Rajasthan
Excerpt:
- - 1 as totally unreliable and disbelieved the evidence of witnesses examined to make out circumstantial evidence to connect the accused with the crime. on these findings, the lower court held that the prosecution has failed to prove that the accused committed the crime and they were accordingly acquitted of the charges framed against them. that plan failed as p. 12 is a nepbew of pullukattil sreedharan and is a railway coolie like the third accused. 80 has deposed that the incised injuries could be caused by stabbing with a knife like m. the cause of death is stated as .cardio-respiratory failure due to shock and haemorrhage on account of the injuries sustained. learned counsel for the accused submits that before a conviction could be entered it should be shown that the evidence of.....balakrishna menon, j.1. this appeal is by the state against the acquittal of accused 1 to 3 in sessions case no. 61 of 1979 on the file of the court of session. quilon. the accused were charged under sections 120b, 302 and 392 read with section 34, i.p.c. for having committed the murder of one titus jacob alias babu (hereinafter referred to as babu) on 6-3-1979 at about 6.45 p. m. at a place called anavattakongal in idamon village, quilon district.2. the accused pleaded not guilty to the charges framed against them. the prosecution relied on the evidence of an approver p. w. 1. the circumstantial evidence and the alleged recovery under section 27 of the indian evidence act of material objects said to have been used in connection with the crime.3. the lower court rejected the evidence of.....
Judgment:

Balakrishna Menon, J.

1. This appeal is by the State against the acquittal of accused 1 to 3 in Sessions Case No. 61 of 1979 on the file of the Court of Session. Quilon. The accused were charged under Sections 120B, 302 and 392 read with Section 34, I.P.C. for having committed the murder of one Titus Jacob alias Babu (hereinafter referred to as Babu) on 6-3-1979 at about 6.45 p. m. at a place called Anavattakongal in Idamon Village, Quilon District.

2. The accused pleaded not guilty to the charges framed against them. The prosecution relied on the evidence of an approver P. W. 1. the circumstantial evidence and the alleged recovery under Section 27 of the Indian Evidence Act of material objects said to have been used in connection with the crime.

3. The lower court rejected the evidence of P. W. 1 as totally unreliable and disbelieved the evidence of witnesses examined to make out circumstantial evidence to connect the accused with the crime. The recovery of material objects relied on by the prosecution was found to be brought about by the investigating officer and was not a true and genuine recovery. On these findings, the lower court held that the prosecution has failed to prove that the accused committed the crime and they were accordingly acquitted of the charges framed against them.

4. P. W. 1 is the only eye witness to the incident examined as an approver on tender of pardon by the Chief Judicial Magistrate. Quilon as per his order dated 2-5-1979, under Section 306 Crl. P.C. He speaks about the chain of events culminating in the death of Babu. The first accused aged about 18 years belongs to Anavettakongal in Idamon village. He is a student in the Pre-Degree Clas.s and was earlier a student of the Govt. High School, punalur. The second accused aged 18 years and P. W. 1 aged 19 years are students in the 10th standard of the said High School. The third accused also aged 18 years was a student of the 10th standard in the said High School, but at the time of the incident was employed as a Railway coolie. These four youngsters are friends who used to assemble in the playground of the Punalur High School, and discuss plans to make easy money. Two months prior to the incident, they had plotted the murder of a lady who used to take tiffin to her husband employed as a tapper in a rubber plantation and rob her ornaments. That plan failed as P. W. 1 backed out of the venture. They made a plan on 4-3-1979 to murder Babu engaged in business as the foreman of a series of ckitties making daily collections from subscribers. The plan was finalised on 5-3-1979. Accused 1 and 2 and p, W. 1 were to assemble at the college-grounds at 8 a. m on (3-3-1979 and to proceed by bus to the place of incident, where the third accused was to join them in the evening. P. W. 1 .came to the college-ground at 10 a, m. instead of at 8 a. m. He met accused 1 and 2 there. p.' W. 1 was directed to bring a spare shirt from his house. The first accused went to the shop of p. W. 26 and came back after purchasing a nylon rope, P. W. 1 also came back with a spare shirt. Thereafter accused, 1, 2 and p. W. 1 walked up to Placherry and boarded a bus going to Shencottah. They got down at a place called Idamon '34' and proceeded by foot to Anavet-takongal near the first Railway tunnel close to Thenmala Railway Station. The scene of occurrence is said to be on a road running across a eucalyptus plantation close to the Railway line. At about 2.30 p. m. they purchased cigarettes, plantains and a comb from the pan shop of P. W. 4 and came close to the Kallada canal where they saw some people at work in connection with the irrigation scheme, P. W. 5 a girl aged about 14 years belonging to that place and working in the Kallada Canal saw the first accused and recognised him. They proceeded further and reached the place where there is a coolie-gang-shed. On their way they crossed the court-yard of P. W. 6 Ammini at about 3 p. m. P. W. 6 questioned them about their purpose upon which they replied that they are from Quilon come to meet a friend. Murali. While sitting near the coolie gang-shed, they felt thirsty and went to the house of p. W. 8 Thankam-ma who supplied them drinking water. P. Ws. 9 and 10 had seen them at the place at about 5.30. p. m. and P. W. 12 saw them at about 6.30 p. m. P. W. 10 Sadanandan had come to the place seeking his buffalo grazing in the eucalyptus plantation. The first accused being a man of the locality is known t P. W. 9. P. W. 10 Sathyaseelan was on his way to a shop when he saw the four youngmen whom he identified in court as accused l to 3 and P. W. 1. P. W. 12 is a nepbew of Pullukattil Sreedharan and is a Railway coolie like the third accused. It has come out in evidence that pullukkattil Sreedharan is enimical towards the family of the first accused. Exts, D26, D27 and D30 produced in the case disclose the bitter enmity between the two families, p, w. 12 has deposed that he mentioned to the mother of deceased Babu that he had serious suspicion about the complicity of the first accused in the crime. According to P, W. 1 the third accused joined himself and accused l and 2 at about 6.30 p. m. near the coolie gang-shed and all of them proceeded along the road in the eucalyptus plantation. They waited for Babu who had to return home along the road in the plantation. The second accused had brought some ganja, that they smoked rolled in beedis. P. W. 1 got fed up and suggested to drop the idea of murdering Babu and to go back ' home. The first accused required them to wait for some more time before they give up their plan. Within a few minutes Babu was seen coming along the pathway. The first accused being a mart of the locality was known to Babu who called him by his pet name Baby. The first accused asked Babu if he had beedis with him. Babu supplied Beedis to all the four and all of them proceeded along the road in the plantation, Babu walking in front and the others following him. Shortly afterwards the first accused gave a signal whereupon the second accused took out the nylon rope from his pant pocket and threw it around Babu's neck. P. W. 1 and the second accused pulled the rope at both ends. Babu turned back and cried whereupon accused 1 and 3 caught hold of his mouth to prevent shouting. The second accused and P. W. 1 pulled the rope tightening the knot on Babu's neck Babu fell down on the road. The first accused took out a knife M.O. 1 and inflicted four or five stabs on the person of deceased Babu. While Babu was bleeding profusely he was dragged nor thwards from the road to an interior place in the plantation. His bag M.O. 3 was taken by the first accused. The second accused took his wrist watch and tried to remove a ring on his finger. Since he could not get the ring he asked P. W. 1 to take it out of his finger He succeeded in taking the ring and all the four started walking towards the road with the bag, wrist watch and the ring, robbed from Babu. The third accused stated that Babu is not dead and is groaning. Accused l and 3 went back to the place where Babu was lying. The first accused inflicted a few more stabs on Babu and Babu breathed his last. The third accused took the chappels of Babu. All of them walked westwards and reached a place called Vellimala. They washed their hands and feet in a stream at that place, p. W. 8 Thankamma in her evidence stated that she saw them washing their hands and feet in the stream. The first accused changed his shirt and gave M.O. 3 bag to the second accused and M.O. 1 knife to the third accused. After reaching the main road the first accused went to his house in the village and accused 2, 3, and P. W. 1 went to Punalur by bus. P. W. 14 Sujathan residing at Vellimala has deposed that while he was sitting in front of his house chit-chatting with a friend he saw the accused passing from east to west at about 8 p. m. p, W. 14 and his friend followed them some distance watching them. They saw the accused and P. W. 1 washing their hands and feet in a small stream and changing dress. He knows accused 1 and 2 and P. W. 1. P. W. 1 and accused 2 and 3 reached Punalur at about 9.30 p. m. They went to Kal-lada river and had a bath. The slippers of the deceased taken by the third accused were thrown into the river. They went to the school ground and opening the bag some money was taken by the second accused and the balance amount handed over to P. W. 1 to be divided among them later. The third accused kept the nylon rope and the knife with him. P. W. 1 climbed over a tree and removing the tiles of the store building of the School deposited the bag over the ceiling and replaced the tiles in its proper position. Thereafter accused 2 and 3 and P. W. 1 dispersed. The next day morning the second accused and P. W. 1 met at the school ground. The first accused also came and they made some adjustments regarding the money found in the bag. The total amount found in the, bag was Rs. 600/-. The second accused kept the watch hidden in a hole at the foot of a tree near the school compound. They met again in the High School ground in the evening when the third accused reported that police dogs had been brought for investigation but they are not suspected. The next evening they again met and the first accused informed that the police have come to know that they are the real culprits. The third accused reported that they are likely to be arrested by the police. The accused and P. W. 1 left the place and were absconding until 16-3-1979 on which date all the four were arrested by the investigating officer.

5. P. W. 2 Titus Mathew, the brother of the deceased saw the dead body at about 9 a. m. the next day on 7-3-1979. He gave Ext. P-3, first information statement to P. W. 87. Sub-Inspector of Police, Thenmala Police Station (about 15 kilometers away from the place of incident) at about 3 p. m. P. W. 88 the Circle Inspector of Police took over the investigation on 8-3-1979. He conducted inquest on the dead body from 7.30 to 10.30 a. m. Ext. P-5 is the inquest report attested by P. W. 18. The wearing apparels of the deceased and certain other material objects were taken into custody by the Investigating Officer, He questioned P. Ws. 12, 15 and 16. P. Ws. 15 and 16 are also brothers of deceased BabU.P. W. 80 Dr. Thaju-deenkunju, Assistant Surgeon of the Govt. Hospital, conducted autopsy at the place where the dead body was found. Ext. P 17 is the Post-mortem certificate issued by P. W. 80. The body was found in a state of decomposition, with flies and maggots and emitting a foul smell. Ext. P17 shows ten injuries on the body of deceased Babu of which injuries l to 9 are incised wounds and injury No. 10 is a legation mark around the neck, P. W. 80 has deposed that the incised injuries could be caused by stabbing with a knife like M. O, 1 and injury No. 10 could be caused by tightening a rope around the nack. Injuries, 7, 8 and 9 mentioned in Ext. P-17 are individually capable of causing death. Death must have been instantaneous. The cause of death is stated as . cardio-respiratory failure due to shock and haemorrhage on account of the injuries sustained.

6. The first accused was arrested at 1 a. m. on 16-3-1979 by the Circle Inspector of Police. P. W. 88, from the Idamon Railway Station. His body was searched. Ext. P6 is the search list attested by PW. 19 M.O. 43 series currency notes and coins of a total value of Rs. 63.30 and a key M.O. 17 (a) of a room in the Skylord Hotel. Punalur were recovered from his person under Ext, P6 search list. As per the statement of the first accused marked as Ext. P24 (a), room No. 8 in Hotel Skylord was opened with the key M.O. 17 (a) and on search of the room M. Os. 5. 6. 32, 33 and 33 (a) were recovered under Ext. P24 mahazar attested by P. W. 82. M, O. 5 is said to be the ring of the deceased kept under the bed in the hotel room. M. 0. 6 is said to be the belt belonging to p. W. 1. M.O. 32 is a Mala-yalam book and M. Os. 33 and 33 (a) are two kerchiefs recovered from the room. Ext. P23, the hotel register, was recovered under Ext P25 mahazar attested by P. W. 82. It is seen that the room was taken in the name of Baby (the first accused) on 8-3-1979 on payment of an advance sum of Rs. 10/-. There was no further payment of room rent. Accused 2 and 3 and p. W. 1 were arrested at 5.15 a.m. on 16-3-1979 at the C'hadaya-mangalam Road Junction. Ext. P7 is the body mahazar of the second accused attested by P. W. 20. M.O. 44 series currency notes and coins amounting to a total sum of Rs. 112.05 were recovered from the 2nd accused. As per Ext. P9 (a) statement of the 2nd accused. M. Os. 4 and 25 were recovered under Ext. P9 mahazar attested by P. W. 22, a teacher in the Punalur High School. M.O. 4 is said to be the watch the deceased Babu was wearing, and M.O. 25 is a plastic cover in which M.O. 4 was wrapped. These articles were recovered from a hole at the bottom of a tree close to the play ground of the punalur High School. M.O. 8 pant was also recovered under Ext. P10 mahazar attested by P. W. 23. As per Ext. Pll (a) statement of the third accused M. Os. 1, 2, 26 and 27 were recovered under Ext. Pll mahazar attested by P. W. 24. M.O. 1 is said to be the knife used for stabbing deceased Babu. M.O. 26 is the sheath of M.O. 1. These articles were recovered from a paddy field. M.O. 2 is a nylon rope said to have been used for strangulating deceased Babu. M.O. 27 is a plastic tin in which M.O. 2 rope was kept buried in the paddy field close to the place from where M.O. 1 knife was recovered. As per Ext. P8 (a) statement of P. W. 1, M. Os, 3, 18 and 19 series were recovered under Ext. P8 mahazar attested by P. W. 21, the Headmaster of the Punalur High School. M.O. 3 is said to be the bag of deceased Babu deposited in the ceiling of the store-room of the High School and M. Os. 18 and 19 series are the contents of M, 0. 3 bag consisting of certain receipts and papers relating to the chitti business of deceased Babu. On a search made in the house of the second accused M. Os, 28 to 31 were recovered under Ext. P12 search list attested by P. W. 25. These articles are not of much consequence in the case. On search of the house of the third accused M.O. 45 kaily was recovered. There was also a search in the house of the first accused and certain articles also not of much consequence, were recovered under Ext. P31 search list.

7. The learned Public Prosecutor submits that the evidence of the approver P. W. 1 is fully corroborated by the circumstantial evidence relating to the movements of the accused spoken to by P. Ws. 3 to 6, 8 to 10 and 12 to 14 and also the recovery of the material objects used in connection with the crime under Section 27 of the Indian Evidence Act. Learned Counsel for the accused submits that before a conviction could be entered it should be shown that the evidence of the approver is reliable without reference to the corroborating evidence, and only in cases where the approver's evidence is found to be reliable, the court is entitled to look for corroboration. In the present case, according to the learned Counsel, the evidence of the approver, P. W. 1, is unreliable, and there is no question of corroboration of such evidence. He challenges also the reliability of the corroborating evidence of the various witnesses mentioned, above. According to learned Counsel the recovery of the material objects in the case is only a make-belief affair as found by the learned Sessions Judge.

8. Even though a conviction based on the uncorroborated testimony of an accomplice is not illegal under Section 133 of the Indian Evidence Act, illustration (b) of Section 114 embodies a rule of prudence that the court will not convict an accused on the uncorroborated testimony of an accomplice in the crime. There can be no question of conviction based on the evidence of an approver even if corroborated in the material particulars unless the court is satisfied that the evidence of the accomplice is reliable. Learned Counsel for the accused submits that it is not open to the court to look into the corroborative evidence to consider the question of reliability of the approver's testimony. He relies on the decision in Sarwan Singh's case : 1957CriLJ1014 wherein at page 641 : 1957 Cri LJ 1014 at P. 1018 it is stated as follows:

But it must never be forgotten that before the Court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.

In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this lest is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.

9. In Major E. G. Barsay v. State of Bombay : 1961CriLJ828 . Subba Rao J (as he then was) referring to the decision in Sarwan Singh's case : 1957CriLJ1014 stated thus at page 1780: (at p. 845):

This Court could not have intended to lay down that the evidence of an approver and the corroborating pieces of evidence should be treated in two different compartments, that is to say, the courts shall have first to consider the evidence of the approver dehors the corroborated pieces of evidence and reject it if it comes to the conclusion that his evidence is unreliable: but if it comes to the conclusion that it is reliable then it will have to consider whether that evidence is corroborated by any other evidence. This Court did not lay down any such proposition. In that case it happened that the evidence of the approver was so thoroughly discrepant that the Court thought that he was a wholly unreliable witness. But in most of the cases the said two aspects would be so interconnected that it would not be possible to give a separate treatment for as often as not the reliability of an approver's evidence, though not exclusively, would mostly depend upon the corroborative support it derives from other unimpeachable pieces of evidence.

10. In Kanbi Karsan Jadav v. State of Gujarat : 1966CriLJ605 , it is stated thus:

What the law requires in the case of an accomplice's evidence is that there should be such corroboration of the material parts of the story connecting the accused with the crime as will satisfy reasonable minds that the approver can be regarded as a truthful witness. The corroboration need not be direct evidence of the commission of the offence by the accused. If it is merely circumstantial evidence of his connection with the crime it will be sufficient and the nature of the corroboration will depend on and vary with the circumstances of each case. Vemireddy Satyanarayana v. State of Hyderabad : 1956CriLJ777 .

In the decision reported in Saravanabhavan v. State of Madras : 1966CriLJ949 it is stated thus in para 12 of the judgment of Hidayatullah J. on behalf of himself, Gajendragadkar, C.J. and Satyanara-yana Raju J-

Although we have reassessed the evidence in part. we may say that the Sessions Judge and the High Court were fully alive to the law relating to approver testimony. They first examined the approver's statement to find whether it was per se credible or not. They concurrently found that the statement made by him, judged of in the light of probabilities and the corroborating evidence was credible. They next looked for general corroboration; they found it from the various discoveries which he made himself and the discoveries made by others named by him. They next considered whether there was corroboration in respect of the participation in the guilt of the appellants named by him as his co-murderers. They found this corroboration also. The evidence was scanned properly from these three points of view and on reading the evidence we find nothing on which we can say that there is any error of any of the kinds mentioned by us earlier which calls for interference.

In the minority judgment of Wanchoo J. on behalf of himself and Ramaswamy J. after referring to the decision in : 1957CriLJ1014 it is stated thus in para 20:

This is not to say that the evidence of an approver has to be dealt with in two water-tight compartments, it must be considered as a whole along with other evidence. Even so, the Court has to consider whether the approver's evidence is credible in itself and in doing so, if may refer to such corroborative pieces of evidence as may be available. But there may be cases where the evidence of the approver is so thoroughly discrepant and so inherently incredible that the Court might consider him wholly unreliable, see E. G. Barsay v. State of Bombay : 1961CriLJ828

On this aspect of the case it is clear from the passages quoted above that there is no difference of opinion between the majority view expressed by Hidayatullah J. and the minority view expressed in the judgment of Wanchoo J. The majority approves the view that the credibility of the evidence of the approver can be judged in the light of probabilities and the corroborating evidence adduced in the case. In the decision of the Supreme Court reported in Piara Singh v. State of Punjab : 1969CriLJ1435 , if is stated at para 3 as follows:

It is well settled that the appreciation of approver's evidence has to satisfy a double test His evidence must show that he is a reliable witness and that is a test which is common to all the witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration, (See Sar-wan Singh v. State of Punjab : 1957CriLJ1014 .

Neither this decision nor the decision in : 1957CriLJ1014 lays down the law as contended by the learned Counsel for the accused that the test of reliability of approver's evidence should be decided without reference to the corroborating evidence. The corroboration required is in material particulars. It is not necessary that the corroboration should cover the whole of the prosecution case, nor is it necessary that it should cover all the material particulars of the prosecution case. If the corroboration required is of such a nature, it would render the evidence of the accomplice wholly superfluous. The dual test with respect to the appreciation of the approver's evidence is of reliability and corroboration in material particulars. There is nothing preventing the court from considering the question of reliability of approver's evidence with reference also to the corroborating evidence and looking for corroboration in material particulars of the prosecution case unless the approver is found to be per se unreliable. In Ram Narain v. State of Rajasthan : 1973CriLJ914 it is slated thus at page 1192 : 1973 Cri LJ 914 at 918:

Before considering the evidence on record it may be borne in mind that the court should evaluate the evidence of an approver dehors the corroborating pieces of evidence for, if his testimony is itself uninspiring and unacceptable justifying its rejection outright then, it would be futile and wholly unnecessary to look for corroborating evidence. It is only when the approver's evidence is considered otherwise acceptable that the court applies its mind to the rule that his testimony needs corroboration in material particulars connecting or tending to connect each one of the accused with the crime charged.

This decision also does not preclude the court from looking into the corroborating evidence in considering the reliability of the evidence of the approver. As held in the decision in Major E. G. Bar-say v. State of Bombay : 1961CriLJ828 . It is open to the court to look into the corroborative evidence to consider the question of reliability of the approver's evidence and then to consider whether there is corroboration in material particulars of the prosecution case. In the decision of the Supreme Court in C. Chellappan v. State of Kerala : 1979CriLJ1335 the decision in Piara Singh v. State of Punjab : 1969CriLJ1435 is followed. This decision also does not preclude the court from looking into the corroborative evidence to decide the question of reliability of the approver's testimony. After considering these decisions of the Supreme Court we find it difficult to accept the contention of the learned Counsel for the accused that the corroborative evidence cannot be looked into at all for the purpose of considering the reliability of the approver's evidence. It can be used for both the purposes of deciding the reliability of the approver's evidence and also for corroboration of the prosecution case in material particulars. The decision of the Supreme Court in Sarwan Singh's case : 1957CriLJ1014 relied on by the learned Counsel for the accused itself contains the following passage (Para 8 of 1969 Cri LJ):

An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has parties patted in the commission of the offence introduces a serious, stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.

It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main, story disclosed by the approver can be reasonably and safely accepted as true.

The passage quoted above clearly indicates the permissibility of looking into the corroborative evidence in considering the reliability of, the evidence of an accomplice. It is therefore not correct to say that the reliability or otherwise of the evidence of an accomplice should be decided without reference to the corroborative evidence in the case. Such corroborative evidence can be looked into for two purposes, namely to consider the reliability of the accomplice and also, to consider whether the evidence of the accomplice is corroborated in material particulars. If there is no such corroboration in material particulars courts will not generally act on the testimony of an approver even if it passes the test of reliability, for the reason of its inherent defect as tainted evidence adduced by an accomplice in the crime. This principle is clearly deducible from the various decisions of the Supreme Court referred to above.

11. It is in this background that the question as to whether the evidence of P. W. 1 can be accepted as reliable evidence is to be considered in this case.

12. The trial court has given several reasons why the evidence of p. W. 1 cannot be accepted as reliable. The Investigating Officer P, W. 88 has admitted in his evidence that P. W. 1 was questioned by him and his statement recorded under Sub-section (3) of Section 161 of the Cr. P.C. After the grant of pardon he is examined as a witness on behalf of the prosecution. His statement recorded by the Investigating Officer is an important material that should be made available to the accused for the purpose of his cross-examination. It was not made available to the accused in this case. Ext. P27 dated 16-4-1979 is the confession statement of P. W. 1 recorded before he was granted pardon under Section 306 Cri. P.C. Ext. P27 is produced in the case long after the examination of P. W. 1-, and is sought to be proved| by the evidence of the Magistrate examined as P. W. 86. Ext. P27 was also not made available to the accused, for purpose of cross-examination of P. W. 1. A further statement Ext. P2 dated 14-6-1979 by P. W. 1 recorded by the Magistrate, P. W. 86 under Section 164 Cr. P. C was also not made available to the accused for the crass-examination of P. W. 1. The Supreme Court in the decision in Noorkhan v. State of Rajasthan : 1964CriLJ167 considered the effect of failure to supply copies of statements of witnesses recorded by the Investigating Officer during investigation. After referring to the decisions of the Supreme Court in : 1957CriLJ1320 ) and of the privy Council in AIR 1947 P.C. 67 : 1947 Cri LJ 533 it is stated at page 293: (at p. 174 of Cri LJ):

However, strong the inference, may be failure to supply copies will not by itself render the trial illegal. The Court must in each case consider the nature of the defect, the objection raised at the trial, and the circumstances which lead to an inference of prejudice. The strength of the inference of prejudice must always be adjudged having regard to the circumstances of each particular case.

In the decision reported in Badri v. State of Rajasthan : 1976CriLJ496 , it is stated thus at page 562 : 1976 Cri LJ 496 at p. 498:

5. We should first deal with the question whether Lachhiram's evidence can be relied upon for the purpose of corroboration of Patram. We find that the trial court did not allow the defence counsel to cross-examine Lachhiram with regard to his earlier statement to the police as to whether he had mentioned about going to the place of occurrence and whether Bhadar told him that Badri had killed Govindram and further whether he had told them to have seen Badri fleeing away with the gun. The only object of the examination of Lachhiram was to prove that he saw the accused armed with a gun running towards 10 Chak and that when he later heard that Govindram had been killed he went to the place of occurrence and on enquiry as to who committed the murder, Bhadar told him that Badri murdered Govindram. It was his evidence also that he also disclosed then and there that he saw Badri running with a gun towards Chak 10. Since the above was the evidence that was led in examination-in-chief, it was perfectly legitimate for the defence to question him as to whether he had told the Police that he informed anybody at the place of occurrence as to his having seen Badri escaping with the gun.

6. The trial court has committed a serious error in disallowing the above questions on the ground that these were mere omission not amounting to contradictions. These questions were clearly admissible under Section 162, Cri P. C, read with Section 145, Evidence Act. The High Court has failed to notice this aspect while accepting the evidence of Lachhiram. The evidence of Lachhiram, therefore, stands untested by cross-examination on a very material point and it is not possible to accept this un-' tested evidence as corroborating Pat-ram.

13. Ext. P27 confession statement of P. W. 1 does not mention the names of P. Ws. 3, 4, 5, 6 and 8 who are examined to prove the movements of the accused and p. W. 1 around the place of incident. The evidence of these witnesses is relied on by the prosecution as circumstantial evidence corroborating the testimoney of p. W. 1 Their presence in the locality and the conversation between the accused and these witnesses are introduced for the first time in the evidence of P. W. 1 when examined in Court This is an embellishment and modulation to suit the prosecution case. In the aforesaid decision of the Supreme Court in Badri's Case : 1976CriLJ496 it is stated at page 564 : 1976 Cri LJ 496 at p. 500 thus:

18...If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliaable person and no conviction can be based on his sole testimony.

Thus it can seen that even though the trial itself cannot be said to be illegal for the failure to supply copies of the case diary and confession statements of P. W. 1 it is seen that the accused had been considerably prejudiced for having deprived of valuable materials for cross-examination of p. W. 1 for the purpose of testing has reliability.

14. A reading of the evidence of P. W. 1 clearly indicates that he happened to be an accomplice in the crime as an unwilling partner by force of circumstances. He has attempted to minimise his own role in the commission of the crime implicating accused 1 to 3 as the principal culprits. This aspect of the case also throws considerable doubt on his reliability.

15. There is clear evidence in the case of bitter enmity between the family of the first accused and of Pullukattil Sreedharan. Deceased Babu was an accused along with Sreedharan and others in Exts. D26 and D27 cases. It is therefore unlikely that when deceased Babu and the first accused met on the road in the eucalyptus plantation, there was a friendly conversation between them and the deceased supplied beedies to the accused and P. W. 1. P. W. 1 has stated in Court that Babu was first strangulated by pulling both ends of the nylon rope put around his neck upon which he fell on the road and then first accused inflicted four or five stabs on him. He was thereafter dragged some distance into the eucalyptus plantation and was again stabbed after the third accused reported that Babu was not yet dead. Ext. P5 inquest report does not show any trace of blood on the road where Babu is alleged to have fallen and said to have been stabbed four or five times. There was no trace of blood along the route he was said to have been dragged. There were only a few drops of blood on the leaves of some plants at the place where the dead body was found. If the incident had taken place as spoken to by P. W. 1. there would have been blood on the road, along the route that Babu was dragged and at the place where the dead body was found. Absence of blood at these places is clear indication that P. W. 1 is not speaking the truth. Both Ext. P5 inquest report and Ext. P17 post-mortem certificate show that the body was in an advanced state of decomposition. The incident according to P. W 1 happened at 6.45 p. m. on 6-3-1979 Inquest was held between 7.30 and 10.30 a. m. on 8-3-1979. Postmortem examination was also on 8-3-1979. If Babu had died as alleged by P. W. 1 at about 6.45 p. m on 6-3-1979 it is quite unlikely that the body would have reached an advanced state of decomposition in the morning of 8-3-1979. For all these reasons we find it difficult to accept P. W. 1 as a reliable witness in the case.

16. Now that we have found that P. W, 1 is unreliable nothing much turns on the evidence of witnesses who have deposed that they saw the accused and P. W- 1 near about the place of incident. The first accused belongs to that village and he has to go along the road in the eucalyptus plantation to reach his house. The evidence of these withessess does not connect the accused with the crime. P. W, 3 is a student in the High School. Punalur. He saw the accused l and 2 and P. W. 1 in the bus in which he was also travelling. He got down before the accused had got down from the bus. p. W. 4 is a pan shop keeper at Corukunnu who deposes to have sold cigarettes, plantains and a comb to the accused on 6-3-1979. He has no previous acquaintence of any of those persons. It is difficult to accept his evidence that he had particularly noted the sale of cigarettes etc. to these persons, p. W. 5 is a fourteen years old girl who knows the first accused. She saw accused 1, 2 and P. W. 1 getting into a canal where she was working along with several other workers. She has deposed that these persons were on their way to the house of the first accused, P. W. 6 Ammini deposes that she saw the three persons going north along her court-yard. She has no previous acquaintence of any of them. The court below was right in disbelieving her evidence that she had made particular note of the three people who had passed her courtyard on their way northwards. P. W. 8 Thankamma identified accused 1 and 2 and p. W. 1 as the person whom she saw near the coolie gang shed on 6-3-1979. They asked for and she supplied them water. She has deposed that she gets water, from a spring nearby and accused 1 and 2 and p. W. 1 came to her house asking for water crossing the spring on their way. The court below was perfectly right in disbelieving her testimony that these three persons went to her house to get drinking water, crossing the very spring from out of which she herself gets water for drinking and household purposes, p. W. 9 Sadanandan was taking his buffalo home from the eucalyptus plantation. According to him cattle are allowed to graze in the plantation and there are people looking after their catties there. He saw two persons wearing pants and two others wearing kaili and mundu. The court below was not prepared to accept his evidence on the ground that he would not have identified the accused and P. W. 1. and they would have exposed themselves to so many people in the plantation when attempting to commit. the crime. P. W. 10 Sath-yasselan also deposes to have seen the three accused and p. W. 1. He does not know any of them and the court below was right in holding that p. W. 10 had no particular reason to have remembered these persons walking along the road. P. W. 11 Ushakuman deposes to have heard a cry at dusk on 6-3-1979. In her cross-examination she has stated that her Vazhathoppil House is three miles away from the place of the incident. It is sought to be made out in the Chief examination that she stays in an another Vazhathoppil House about 350 feet away from the place of incident. She has no case in her chief examination that she is residing in a different house bearing the same name as the name of her house. The court below was there-fore perfectly right in disbelieving the evidence of this witness also, P. W. 12 is Pullukattil Jayarajan. He claims to have seen accused 1 to 3 and P. W. 1 on the road in the eucalyptus plantation at about 6.30 p. m. on 6-3-1979. His uncle Pullukattil Sreedharan is a bitter enemy of the first accused and his brother N. T. Philip. There is also nothing in his evidence to connect the accused with the crime. P. W. 2 the brother of the deceased gave the first information statement Ext. P3 to P. W. 87 the Sub-Ins-pector of Police. Thanmala at about 3. p. m. on 7-3-1979. In his deposition P. W. 2 states that he had sent Pullukattil Sreedharan and Thulaseedharan to the police Station to inform the Police about the incident. Since they had not returned till about 2.30 p. m. P. W. 2 himself went to the Police station, where he saw Sreedharan and Thulaseedharan. It is therefore difficult to believe that Ext. P3 is the first information statement in respect of the crime. These witnesses who speak about the movements of the accused in the locality on 6-3-1979 were disbelieved by the court below for good and valid reasons. Even if they are to be believed their evidence does not show the complicity of the accused in the crime.

17. Reliance is next placed on the recovery of M.O. 1 knife. M.O. 2 nylon rope, M.O. 4 watch and M.O. 5 gold ring to connect the accused with the crime. According to the prosecution, the first accused was arrested by the Circle Inspector of Police, P. W. 88 at 0.55 a.m. on 16-3.-1979 at Edamon Railway .Station. P. W. 19 saw the arrest and attested Ext. P6 mahazar under which M.O. 17 (a) key of a room in the Sky-lord Hotel, Punalur. was recovered. According to P. W. 19 he saw a police jeep at night on 15-3-1979 on his way from the Railway Station. The Circle Inspector of police who was in the jeep asked P. W. 19 to sign the mahazar Ext. P6. The first accused was also in the jeep and the witness does not know when and how the first accused happened to be in the jeep. According to P. W. 88 the room was opened with M.O. 17 (a) key and M.O. 5 ring was recovered from under the bed in the room. Ext. P23 the hotel register recovered under Ext. P25 mahazar shows that the room was taken by the first accused on 8-3-1979 on payment of Rs. 10/-. There is no further payment. It is unlikely that he would be allowed to stay in the room without further payment. Accused 2, 3 and P. W. 1 were arrested on 15-3-1979 at 5.15 a.m. at the Chadayamangalam Junction on the Kot-tarakara-Trivandrum Highway. On the basis of Ext. P9 (a) statement of the second accused M.O. 4 watch of the deceasad and M.O. 25 plastic wrapper of the watch are alleged to have been recovered from a hole at the bottom of a tree near the school compound under mahazar Ext. P9 attested by P. W. 22 a teacher in the High School. On the strength of Ext. P8 (a) statement of the third accused M.O. 1 knife M.O. 2 nylon rope M.O. 27 plastic tin in which the nylon rope was concealed are alleged to have been recovered from a paddy field near his house under Ext. P10 mahazar attested by P. W. 24 a tea-shop-keeper. M.O. 3 bag belonging to the deceased Babu is alleged to have been recovered from the ceiling of the Punalur High School building as per Ext. P8 mahazar attested by the Headmaster P. W, 21, on. the basis of Ext. P8 (a) statement of P. W. 1 to the investigating officer. The recovery of these articles according to the court below is artificial and cannot be held to be true and genuine. The evidence relating to the identification of the watch M.O. 4 and the ring M.O. 5 as belonging to the deceased Babu is also 'difficult of acceptance, P. W. 15 identified the ring as gifted by him to deceased Babu six years back and P. W. 16 identified M.O. 4 watch as purchased by him for Babu one and a half years back. The court below has rejected the evidence of P, Ws. 15 and 16 as unworthy of credence. P. W. 82 the Manager of the Skylord Hotel. Punalur deposes that the usual key of the room in the hotel has a ring and a brass plate with inscription showing the number of the room and the name of the hotel. Ext, P17(a) said to have been recovered is the key of a tiger lock without anything to indicate that it relates to the room No. 8 in the Skylord Hotel. P. W. 20 is examined to prove the arrest of accused 2, 3 and P. W. 1 at 5.15 a.m. on 16-3-79 at the Chadayamnngalam Junction. He has deposed that he is a fish monger residing one mile away from the junction. He saw the Circle Inspector of Police inside the police jeep and a constable writing down on the dictation of the Circle Inspector. He had not seen anybody else in the jeep. He signed the paper written at the dictation of the Circle Inspector of Police. On the evidence of P. W. 20 it is difficult to believe that accused 2. 3 and P. W. 1 were arrested at 5.15 a. m. on 16-3-1979. Similar is the evidence of P. W. 19 relating to the arrest of the first accused. The accused when questioned under Section 313 Crl. P.C. have stated that all of them were arrested on 8-3-1979. P. Ws. 3 and 7 in their deposition state that they knew that the accused were arrested three or four days after the occurrence. If their evidence is to be accepted the arrest was on the 9th or 10th of March, 1979. For all these reasons it cannot be said that the court below was wrong in holding that the recovery of material objects in the case was not a true and genuine recovery under Section 27 of the Indian Evidence Act.

The prosecution has failed to prove the guilt of the accused. The court below was therefore right in ordering their acquittal. The appeal fails and is dismissed.


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