Saju v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 18TH DAY OF DECEMBER 2017/27TH AGRAHAYANA, 1939 CRL.A.No. 1707 of 2013 (A) --------------------------------------AGAINST THE JUDGMENT IN SC 1661/2011 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM, DATED 27.03.2013 CP No. 96/2011 of J.M.F.C.-III, PUNALUR AND CRIME NO. 490/2011 OF PATHANAPURAM POLICE STATION, KOLLAM APPELLANT / ACCUSED : - --------------------------------------- SAJU, C.NO.7895, CENTRAL PRISON, TRIVANDRUM. BY ADV. PREETHY R NAIR (STATE BRIEF) RESPONDENT / COMPLAINANT : - --------------------------------------------------- STATE OF KERALA, REPRESENTED BY DGP, HIGH COURT OF KERALA, ERNAKULAM. BY SPL. PUBLIC PROSECUTOR SMT. AMBIKA DEVI S. (FOR ATROCITIES AGAINST WOMEN AND CHILDREN ) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2017, THE COURT ON 18.12.2017 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** -----------------------------------------------Crl.Appeal No.1707 of 2013 -----------------------------------------------Dated this the 18[th] day of December, 2017 ## J U D G M E N T ## **P.Somarajan, J.** Appeal against the judgment of conviction and order of sentence under Section 302 of the Indian Penal Code by the accused/appellant in Sessions Case No. 1661/2011 of Additional Sessions Judge (Adhoc-II), Kollam, dated 27.03.2013. 2. An age old lady by name Pennamma met with a sad death in the hands of her younger son, who is said to be a drunkard living apart from his wife and children, in the house of the victim on 28.04.2011. The alleged incident took place at 2.15 p.m. within the secrecy of their dwelling house. The immediate cause for the alleged incident is the refusal of the mother, the victim, in providing lunch to the accused which has followed in exchange of hot words resulting into the attack on the victim and user of a knife in inflicting cut injuries and stab injuries on her neck. The learned Sessions Judge convicted the accused for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Crl.Appeal No.1707 of 2013 2 Rs.10,000/-, in default, to undergo rigorous imprisonment for six months, by its judgment dated 27.03.2013. The learned Sessions Judge mainly relied on the extra judicial confession of accused before PW4 to PW7 and recovery of the weapon used for the commission of offence, found to be stained by human blood of 'A' group besides the medical evidence adduced through postmortem examination report (Exhibit P7) and the oral evidence of PW14, the Doctor who conducted autopsy on the body of the deceased. 3. There is no eye witness to the alleged incident. Hence, the prosecution is heavily relying on the circumstantial evidence. PW14 is the Doctor who conducted autopsy on the body of the deceased and issued Exhibit P7 post-mortem examination report. The ante-mortem injuries noted by the Doctor on the body of the deceased are the following: _“1. Multiple superficial incised wounds 2 to 6cm long and 0.1cm broad over an area 8x7 cm on left side of neck 1cm below tip of mastoid._ _2. Incised wound 3.5x0.5x1cm oblique on left side of front of neck, its lower inner end was 3cm outer to midline and 3cm below jaw margin. A_ Crl.Appeal No.1707 of 2013 3 _side cut 0.5cm long and directed upwards was seen along the upper margin, 1cm outer to the lower inner end. The upper outer end showed tailing for a length of 1cm. Underneath the external jugular vein and inner fibres of sternocleidomastoid muscle were seen cut. The right ventricle contained blood mixed with air._ _3. Incised wound 2x0.2x0.5cm oblique on left side of front of neck, lower inner end 2cm outer to midline and 2 cm below injury number 2. A side cut 0.5cm long, directed upwards was seen along the upper margin 0.5cm away from its inner end. The upper outer end showed tailing for a length of 2cm._ _4. Incised wound 2x0.2x0.5cm oblique on left side of top of shoulder, lower outer end 6cm inner to tip of shoulder. Upper inner end showed tailing for a length of 1.5cm._ _5. Two superficial incised wounds 3x0.1cm and 7x0.2cm, 1.5cm apart seen on top of left shoulder just outer to root of neck._ _6. Incised wound 2x0.2x0.5cm transverse on back of left side of head, inner and 3cm outer to midline and 5cm below occiput._ _7. Abraded contusion 1x1x0.5cm on left side of root of nose just outer to the midline._ _8. Contusion 10x5x0.5cm on left side and back of head just outer to midline at the level of_ Crl.Appeal No.1707 of 2013 4 _occiput. Skull was intact. Brain showed subarachnoid haemorrhage on back and base on either side and a thin subdural bleed on right side of back of head._ _9. Transverse fracture of body of sternum between 2[nd] and 3[rd] costal cartilages._ _10. Fracture of II, III, IV and Vth ribs of right side seen on front aspect._ _Air passages were pale and contained a thin film of frothy fluid. Lungs were pale. Stomach contained 10ml of brownish fluid having no unusual smell. Mucosa was pale. Urinary bladder was empty. Uterus 5x3x1.5cm, os transverse and cavity. Ovaries were atrophic. All other organs were pale otherwise appeared to be normal._ _Vaginal swab and smear sent for chemical analysis. A sample of blood was sent for grouping at Blood Bank, Medical College Hospital, Thiruvananthapuram and was reported as 'A' positive.”_ 4. The cause of death is stated to be due to incised wound sustained to neck and blunt injury sustained to head (Injury Nos.2 and 8). 5. We have gone through the oral testimony of PW4 to PW7 in detail. The first question came up before us is the reliability of Crl.Appeal No.1707 of 2013 5 the version given by PW4 to PW7. Even the appellant did not have any case that they have any axe to grind against him and no instance of enmity, hatredness or ill-will was brought out. PW4 is a Nurse by profession. The accused approached her by 3.30 p.m. and made a declaration to the effect that “he had done away that nuisance.” Since it was not clear, she asked him what actually he meant. Thereon, he asked her to go and look into his house. The very same version was given by the accused before PW6 also. PW4 intimated the matter to PW3, Babu, and he went to the house of the accused and had seen Pennamma lying dead in the said house. The oral deposition given by PW4 regarding the extra judicial confession alleged to have been made by the accused is under challenge on the reason that it did not specify the act done by the accused against whom he had done the mischief and the weapon, if any, used or the manner in which the injuries were inflicted. It is only a mere statement that he had done some mischief without referring any particular act or particular person. A dying declaration should be clear, specific, unambiguous and shall not be capable of giving more than one Crl.Appeal No.1707 of 2013 6 hypothesis. In the instant case, the dying declaration did not specify any particular person or the name of victim or identity of the victim, the act done by him or the place where he had done it. It is only a mere statement that he had done away a nuisance. Of course, it refers an act done by him to do away a nuisance, but did not specify the nuisance, instead of he made a rider asking PW4 to go and watch into the house, wherein the injured was found lying with injuries in an unconscious stage. A dying declaration should satisfy in clear terms the role of the accused and his complicity in the alleged crime. Going by the oral testimony of PW4, the accused did not mention (1) to whom he had done the mischief and (2) what the mischief he had done. Without disclosing the name of victim and what he had actually done to the victim he made a confession in the form of a declaration before PW4 that “he had done away that nuisance.” When it was asked what he had meant by that declaration, he asked PW4 to go and look into his house. PW3, on getting the said information from PW4, went to the house and had seen the dead body of the injured victim lying inside the house. When a Crl.Appeal No.1707 of 2013 7 part of extra judicial confession refers an existence of fact and if it was found to be true, the said fact so revealed would form part of extra judicial confession. As such, the detection of dead body of an injured within the house form part of extra judicial confession as the maker had disclosed the mischief done by him asking the witness to go and look at the place wherein he had done the mischief. That part of the extra judicial confession asking the witness to go and see what he had done at the place of occurrence when gets approval of a fact in existence, that fact so revealed would form part of the extra judicial confession. Further, when there is a connecting link spoken by the maker of extra judicial confession with respect to his complicity in an alleged commission of offence, that connecting link is also relevant as part of extra judicial confession. In the instant case, the connecting link spoken by the accused is the dead body of the victim stained with blood found lying inside the house and PW4 had been asked by the accused to go and see what he had done there with a confession that “he had done away that nuisance.” It is not at all a question of applying any guess work on the extra Crl.Appeal No.1707 of 2013 8 judicial confession alleged to have been made by the accused either to detect/determine what he had actually done or to whom against he had done it. At this juncture, it has to be borne in mind that extra judicial confession may not be always verbal. An extra judicial confession can be partially verbal and partially non verbal and there is no rule of law that an extra judicial confession which is partially verbal and partially non verbal is not admissible in evidence. The requirement is that it should be unambiguous, free from suspicion and it should not be the result of any inducement, threat or promise of favour. The fact revealed by virtue of a factor disclosed admitting its commission by the accused is admissible and would form part of extra judicial confession. In the instant case, what is spoken by the accused is that he had done away a nuisance and asked the person to whom he had disclosed his alleged act, to go and see the same within his house would be relevant and would form part of extra judicial confession admissible under Section 24 of the Evidence Act. 6. An extra judicial confession, if found to be voluntary, not obtained by coercion, inducement or promise of favour, can be Crl.Appeal No.1707 of 2013 9 the sole basis of conviction, if it inspires confidence, not tainted by any ill-will or ill motive. The Apex Court in **Gura Singh v. State of Rajasthan [2001 KHC 1019]** had settled the legal position, after referring various earlier decisions, in paragraph 6, which is extracted below for reference: _“6. It is settled position of law that extra judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [1954 SCR 1098], this Court again in Maghar Singh V. State of Punjab [AIR 1975 SC 1320] held that the evidence in the form of extra judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If_ _the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. [AIR 1985 SC 1678] this Court cautioned_ Crl.Appeal No.1707 of 2013 10 _that it is not open to the court trying the criminal case to start with presumption that extra judicial confession is always a week type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P. [AIR 1990 SC 2140] this Court held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent S.25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in_ Crl.Appeal No.1707 of 2013 11 _Baldev Raj v. State of Haryana [AIR 1991 SC 37]. After referring to the judgment in Piara Singh v. State of Punjab [AIR 1977 SC 2274] this Court in Madan Gopal Kakkad v. Naval Dubey & Anr. [JT 1992 (3) SC 270] held that the extra judicial confession which is not obtained by coercion, promise of favour of false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.”_ 7. The oral evidence tendered by PW4 stood as corroborated by the ocular version given by PW5 and PW7, besides the oral evidence tendered by PW3, one Babu. It is PW3 Babu who went to the house of the victim and had seen the dead body of the injured stained by blood, after getting information from PW4 regarding the alleged extra judicial confession made by the accused and it gives sufficient corroboration to the oral evidence of PW4 and the alleged extra judicial confession made by the accused before her. 8. PW5 is none else the husband of PW4, who had also witnessed the extra judicial confession made by the accused before the father of PW4. PW5 further deposed that there were blood stains on both the hands of accused. PW7 is another witness examined by the prosecution, who had heard the extra Crl.Appeal No.1707 of 2013 12 judicial confession made by the accused before PW6, Podimon. But, PW6 did not have any such case during his examination. What is spoken by PW6 is that the accused came to his house and informed him that his mother is no more. He had also admitted that the accused has informed him that he had disclosed the death of Pennamma before PW4, Valsamma, and that he had seen some blood stains on his leg. But, PW7 is so specific that the accused has made a declaration before PW6 that “he had done it” and when asked, he made it clear that it is 'Pennamma'. The oral testimony of PW6 and PW7 and the confession alleged to have been made by the accused before them when taken alone cannot be brought under the purview of extra judicial confession. But, when it is read along with the factum of death of the victim due to injuries sustained by her, it would bring the declaration made by the accused within the sweep of Section 24 of the Evidence Act. There is no element of coercion, inducement or promise of favour. 9. The recovery of MO5 knife and MO6 handle of knife and presence of human blood of 'A' group in item Nos. 1 to 3, 5 and Crl.Appeal No.1707 of 2013 13 8 including MO5 knife under Exhibit P11 chemical analysis report would bring the recovery under Exhibit P5 recovery mahazar, based on Exhibit P5(a) confession statement alleged to have been given by the accused while in police custody, from a place known to him, i.e. bushy area, within the sweep of Section 27 of the Evidence Act and the relevant portion of confession statement unerringly pointing towards the guilt of accused. 10. The motive behind the crime is also spoken by PW4, PW5 and PW7 as there were frequent quarrel between the accused and the victim. What actually was the motive behind the crime can be tested only in reference to the _mensrea,_ the guilty intention of the accused, and sometimes it may not be known to the prosecution. When there is sufficient evidence to show the strained relationship, it would constitute a valid motive behind the crime. PW1 is the brother of the deceased, who had given Exhibit P1 FIS. The frequent quarrel between the accused and the deceased and the behavior of the accused being a drunkard are also spoken by PW1. 11. The circumstances brought out are complete, Crl.Appeal No.1707 of 2013 14 unerringly pointing towards the guilt of the accused and any other hypothesis consistent with the innocence of the accused is not possible. The offence alleged would satisfy the first and second limbs of Section 300 IPC and hence there is no reason for any interference to the finding of guilt of accused under Section 302 IPC and the conviction thereunder. 12. The sentence awarded being the lesser one, no interference is called for. In the result, appeal fails deserves only dismissal and we do so. ## **A.M.SHAFFIQUE (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-