Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELALTE JURISDICTION
CRIMINAL APPEAL NO. 811 OF 2009
(Arising out of SLP (Crl.) No. 5624 of 2006)
M.A. Antony @ Antappan …Appellant
versus
State of Kerala …Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of
the Kerala High Court upholding the conviction of the appellant for
offences punishable under Sections 449, 379, 380, 302 and 201 of the
Indian Penal Code, 1860 (in short the ‘IPC’). Appellant was sentenced to
death for the offence relatable to Section 302 IPC, life imprisonment, 7
years imprisonment, 7 years imprisonment for the offence relatable to
Section 449, 380 and 201 respectively. No separate sentence was imposed
for the offence relatable to Section 379 IPC. For confirmation of the death
sentence reference was made to the High Court under Section 366 (1) of the
Code of Criminal Procedure, 1973 (in short the ‘Code’). The appellant also
preferred an appeal and by the impugned judgment, both the Death
Reference and Criminal Appeal were disposed of.
3. The accusations in essence against the appellant are as follows:
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th th
On the intervening night of 6 and 7 January, 2001, when inmates of
Aluva Municipal Town of Ernakulam District in the State of Kerala were in
deep sleep, Manjooran House located in the midst of the town became a
scene of ghastly crime. Six members of one family in the Manjooran House
lost their lives in a matter of three hours, Antony @ Antappan, the appellant
herein, in search of greener pastures abroad for which purpose he needed
money but was refused to be paid by the members of the Manjooran family,
and therefore as per the prosecution’s version used knife, axe, amd
electrocuted and strangulated Kochurani and Clara at about 10 in the
night.of 6.1.2001 and Augustine, his wife Mary, and their children - Divya
and Jesmon at midnight. The Manjooran House full of life at 10 in the night
by the stroke of midnight became a graveyard. The appellant after causing
the death of Kochurani and Clara is said to have waited for the arrival of
other four members of the family who had gone to see a film show. On their
arrival he turned them into corpses. He waited for their arrival to kill them
as he knew that for the two murders committed earlier by him he would be
suspected by them, as he was in the house when they left the house for the
film show. The prosecution alleges that all these murders were cold
blooded, planned and executed with precision and the appellant ensured that
there is no trace of life left in them before he left the scene of occurrence.
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When put to trial for murders, appellant, however, pleaded innocence and
claimed trial.
4. The trial Court as noted above found the accused guilty.
5. Law was set into motion in the following manner:
Joseph @ Rajan on 7.1.2001 at 11.30 p.m. gave information to the
Aluva Police Station of Ernakulam District that his sister, brother-in-law
and their children were murdered by someone at sometime between 6 p.m.
on 6.1.2001 and 10 p.m. on 7.1.2001 within Manjooran House, where his
brother-in-law Augustine @ Baby, sister Mary @ Baby, children Divyamol
and Jesmon, brother-in-law's sister Rani (Kochurani) and mother Rahel
were living as a family. He requested for action in the matter. In the first
information, Ext.P1, got recorded by N.V. John, Sub Inspector of Police.
The informant Joseph stated that he had come to inform that someone had
killed his sister-Mary, brother in law-Augustine and their children-
Divyamol and Jesmon in their residence at Aluva. He belongs to Christian
community and is residing with his father, mother, wife and children. It was
stated by him that he was running a stationery store there and his sister
Mary was married to Augustine of Manjooran House. His brother in law
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was running a hardware shop at Aluva. Both the children were school
going. On 6.1.2001, his sister had come home to take his father who was
sick to the hospital. His sister told him that she would come on 7.1.2001 by
9.30 a.m. to stay with them, as his wife was going to her house. On Saturday
morning his wife went to her home. At that time, his sister Lizy, was in the
house. Baby wanted to come as Lizy had to go to her house. Since his sister
was not seen even after 10 O'clock, he tried to contact her over phone.
Though the phone was ringing, nobody picked it up. Around 2 p.m. he
telephoned Jose at Neerikode and asked him to enquire as nobody was
answering the phone at his sister's residence. After some time Jose informed
over phone that when he sent the son of his elder brother Jose to his sister's
residence, the house was found locked without anyone being there and also
their vehicle was not seen. As she wanted to participate in a function in
connection with Christu Jayanthi 2000, thinking that she would have gone
for that, they waited till 8 p.m. and thereafter again contacted Jose over
phone and requested him to enquire again. After sometime, Jose called back
and told that Sebastian informed him that both his sister and brother-in-law
were not seen. To know about their whereabouts, he along with his brother-
in-law Sunny, came to the house of his sister around 10 p.m. The vehicle
was available in the courtyard. There was no light in the verandah. Then he
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entered the sit-out and lifted the curtain to knock the door, and he saw one
of the doors kept open. When he lighted the torch, immediately he saw the
legs of Jesmon, son of his sister. He was lying on the floor. There were
blood stains near his body. In the adjacent room, he saw the legs of
Divyamol, who was lying on her chest down; his sister in a sitting posture
with her head down and adjacent to that his brother-in-law, lying on his
back. There was no response when he called. They appeared to be dead.
Immediately, they came out of the house and went to the house of Jose, his
cousin and informed him. Jose called Robin and they all went in Robin's car
to the station. Apart from his sister, brother-in-law and their children, his
brother in law's mother and sister were also staying with them. He did not
know what had happened to them. They were not seen there. The dresses of
his brother in law, sister and their children were those they used to wear
while going out. There was no financial liabilities on his brother-in-law.
When his brother in law laid the foundation for constructing a new house,
he had a case with his family and as per his sister, they were expecting its
judgment in the near future. His brother-in-law and his elder brothers had a
dispute with regard to their property. He was not aware of any enemies from
outside of his brother-in-law. The morning newspaper and milk were lying
on the verandah of the house. The incident occurred between 6 p.m. of
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6.1.2001 and 10 p.m. of 7.1.2001.
From the statement made by the informant, it appears that the murder
of the six persons was noticed for the first time around 9 p.m. to 10 p.m. on
7.1.2001 and the matter was reported to the police at 11.30 p.m. on the same
day.
As there was no direct evidence the prosecution relied on
circumstances to fasten the guilt on the accused. Accordingly, the
conviction was recorded. The High Court confirmed the conviction and
sentence imposed.
7. In support of the appeal, learned counsel for the appellant submitted
that this being a case of circumstantial evidence the prosecution was
required to show that the chain of circumstances was so complete that they
excluded even the remote possibility of any other person being the author of
the crime. It is submitted that there are many missing links and the
explanation offered by the appellant has not been considered in the proper
perspective.
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8. Learned counsel for the respondent-State on the other hand supported
the judgment of the High Court.
9. It is to be noted that the following were the factors which were
pressed into service by the prosecution.
(a) Motive;
(b) Presence of accused/appellant on 6.1.2001;
(c) Presence at the place of occurrence in the early hours of
7.1.2001;
(d) Absence from residence on the night of 6-7 January, 2001;
(e) Recovery of clothes under Section 27 of the Indian Evidence
Act, 1872 (in short the ‘Evidence Act’);
(f) Fingerprints;
(g) Recovery of Scalp hair of the accused/appellant;
(h) Judicial Confession;
(i) Extra-Judicial Confession
10. Stand of the accused-appellant is essentially as follows:
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(a) Line of investigation not pursued deliberately by the police and
leads missed by the police - which would have shown innocence of the
appellant:
The records of the case disclosed that at the very outset there are no
circumstances which clearly showed that the accused was involved in the
crime. However, this line of investigation was not pursued by the
investigating agency. For some strange reason they wanted to show that
the case had been solved and the appellant has been made a scapegoat in
the process.
(b) Presence of spermatozoa in the pubic hair and vaginal swab of
Kochurani:
It has come in evidence of PW-53 that human spermatozoa was
detected in the pubic hair and vaginal swab. These swabs were subjected to
DNA test after taking the blood samples of the appellant. Ext. 90 dated
27.12.2002 completely absolved the appellant as being a source of the male
DNA.
The Inquest report prepared on the body of Kochurani stated that her
skirt was rolled up and white fluid was found on the private parts. It was a
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fresh intercourse. When pursuing the line of investigation the prosecution
attempts to explain it away by saying that it could be an old consensual
intercourse forgetting that if it was an old intercourse, stains would not be
available in the pubic hair after so many days.
The other line of investigation deliberately not pursued is the
presence of blood stained foot prints atleast 10 in number inside the house.
It is sought to be argued by the prosecution that the footprints were not
clear enough for arriving at any conclusion. In fact to get over this aspect
they claim that the accused was wearing socks and also show as if socks
was recovered. It is an absolutely false story of the prosecution in order to
cover up their conduct of not pursuing the footprint theory.
Further, in this case the weapons used were axe, two knives, a
chopper and a double knife. No finger print is sought to be lifted from any
of these weapons and sent for comparison. The prosecution claims that nine
finger prints were lifted from the house of which they say five were not
clear for comparison, two remained untallied and of the remaining two are
tallied with PW-14 Tintu Joseph, a nephew of Augustine and the other
tallied with accused appellant. As to why no finger prints were lifted from
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the weapons and as to whose finger prints were present in such large
number has not at all been pursued by the prosecution.
Most importantly, according to the prosecution the finger prints on
the door post which tallied with the accused had blood stain. However,
according to the expert, from the blood stains it was not possible to decipher
as to the group of the blood stain.
Another important circumstance is the so called pledge of two chains
and one anklet of the deceased by PW-74 Suresh in the shop of T.V.
Gangadharan (PW-25). The police set up a case that the accused had
entrusted the jewellery to Suresh on 9.1.2001 at Bombay and that Suresh
came to Kerala on 16.1.2001 and pledged the jewellery on 31.1.2001 when
he had full knowledge that the appellant was suspected for the commission
of offence. Police to support it marked Ext.P-22 through PW-25. Ext.P-22
was a pledge register contemporaneously seized on 20.2.2001 from the shop
of PW-25. However PW-25 confessed that the register was subsequently
got written and was recovered two months after. What was recovered on the
day of seizure was the pledge bond and the token. Abraham Cherian (PW-
59) the Investigating Officer admits that the bonds were recovered but that
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was not produced in court. By the impugned order, the High Court has
disbelieved recovery of ornaments, namely two chains and one anklet.
However, what is surprising is if the police did not actually recover, did
they pursue the line of investigation against Suresh (PW-74) and if not, why
not? There are several other concoction and embellishment resorted to by
the police for reasons best known to them.
(c) Recovery of finger print of the accused from the house .- M.T.
Jose (PW-14), own brother of Augustine states that accused is brother by
relation with Augustine who used to frequently visit the house of Augustine
and also house of Jose, the witness and that the accused had full freedom in
the ‘tharavad’ since mother had son-like relation with him. Similarly, MT
George ( PW-15), another brother of deceased Augustine also states that the
accused used to regularly visit Augustine’s house. In view of this assuming
that the finger prints of the door step tallied with that of accused just as
PW-14, Tintu Joseph’s finger print also tallied this is no circumstance
against the appellant, the appellant admittedly being a frequent visitor.
The finger print was tallied by K. Yogendra Sakhya (PW-7) and the
report was marked as Ext.P-11. The report reveals that the comparison of
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the finger print was done with the finger print of the arrest slip. Apart from
that this report says that there were 7 other finger prints, five of which were
unclear and two could not be tallied. This shows that there were strangers
who entered the premises for commission of offence. Further, the report
does not disclose the age of the finger print of the accused. Accused
admittedly visited the house several times and definitely on 5.1.2001 and
6.1.2001 he had visited the house. Secondly, the specimen finger print
ought to have been taken before the Judicial Magistrate as per identification
of Prisoners Act and this procedure having not been followed, no reliance
can be placed on this circumstance as held by this Court in Mohd. Aman
and Anr. v. State of Rajasthan (1997(10) SCC 44).
Thirdly, the blood group of the so called finger prints specimen could
not be detected and particularly the group could not be found as is clear
from Ex.P-39. No reason is given. Hence, finger print is not a circumstance
and cannot form a basis or link in the chain of circumstances.
(d) Recovery of hair:
Parameswaran Nair (PW-53) states in the report Ex.D-12 prepared by
him that one black hair was located by him on the body of Jesmon, that he
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entrusted it to the Investigating Officer, that he did not seal it, that it was a
scalp hair and a pulled out hair. What is significant is that no information
about the unsealed hair allegedly recovered on 8.1.2001 nor the recovered
item were sent to the Court earlier to the examination of the accused by
police i.e. it was not sent till atleast 18.2.2001. Nowhere it was mentioned
about the actual date of sending of the said information. This was adversely
commented by the High Court while ordering a CBI investigation. What is
important is in the report Ex.P-36 of PW-53 it is seen that when it was
forwarded by the Judicial First Class Magistrate it had the seal of Judicial
First Class Magistrate but that packet contained two unsealed packets which
were the hairs (there is a contradiction as to whether one hair was seized or
three hairs were seized from the body of Jesmon but keeping that aside for
the time being) allegedly recovered from the body of Jesmon. What is
important to note is PW-53 says he did not seal it and what went from the
Court was an unsealed packet put inside a sealed packet of the Court. What
is important to note is it is not clear as to whether what was sent for
examination or what was seized. This coupled with the fact that
contemporaneous report was not made to the Judicial First Class Magistrate
on 8.1.2001 throws a serious doubt as to what was sent to the Magistrate
was what was really seized or was it something else. It appears that after the
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accused was examined then only a report was made. There again Anita
Kumar (PW-60) states that she cut the hair of the accused and sent for
chemical examination. A perusal of Ext.P-36 shows that this specimen hair
was in closed bottle which was kept in a plastic container. There is no
evidence of sealing. PW-60 says she did not state in Ex.P-48 that she sealed
the pack but she kept the hair in a glass bottle and after sealing it handed it
over to the Investigating Officer. Ex.P-36 does not say that the specimen
bottle was sealed. It was just a closed bottle kept in a plastic container.
What is significant to note in Ex.P-36 it is mentioned that both the
specimen hair and the seized hair had roots. PW-60 says that she cut the hair
and while cutting there would not be roots. The fact that the seized hairs
were not sealed, the fact that the specimen hair was not sealed and most
importantly the fact that the seized hair on 8.1.2001 and forwarded only
after questioning accused i.e. on or after 18.2.2001 throws a serious
suspicion on the prosecution story and it cannot for a basis or a link in the
circumstance against the appellant. PW-51 who prepared Ex.P-3 inquest of
Jesmon has admitted in cross examination that the hairs recovered from the
dead body were sealed then and there and taken to the police station. But
admittedly those sealed hairs were seen unsealed when it reached in the
hands of PW-53 as is clear from the report. If PW-51 sealed it how they are
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unsealed is a question which the prosecution has not answered.
(e) Recovery of the so called pant shirt, kerchief and socks:
This theory of recovery is completely bogus. According to the
prosecution the accused after the incident went in the early morning to his
house and without the knowledge of wife changed the clothes, deposited
them in a plastic kit and after depositing it in the compound from where
they were recovered came back to the house. What is crucial is CBI
investigating officer (PW-77) says that only the handkerchief and socks
were thrown by the accused. Apart from this, the recovery witnessed by
PW-68 and PW-73 contradict each other in material particular. While PW-
68 says that four items were recovered and that time accused was sitting in
the jeep, that blood was seen in the kerchief and no any other items, PW-73
states that the accused entered the gate and that there were blood stains in
all the four items. Obviously, police realized that their theory that the
accused came home without knowledge of his wife would fall flat came
forward with a case that only handkerchief and socks were recovered. In
view of these serious contradictions between the police theory and the
mahazar witnesses no reliance can be placed on the recovery as a
circumstance. Further, if pant and shirt were not recovered how it was sent
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for forensic examination to PW-54 whose report states that the pant and
shirt contained blood of ‘O’ group. CBI investigating officer says only
socks and handkerchief were recovered. PW-68 says blood stains only in the
handkerchief. PW-73 says that all the cloths had blood stains. PW-73 says
accused took out the items while PW-68 says accused was sitting in the
jeep. If PW-68 has come after the items were taken out then he is not a
recovery witness. If actually handkerchief and socks were recovered what
has been sent to forensic lab is something which has not been seized. There
is a serious attempt by the prosecution to falsely show recovery of blood
stained clothes to implicate the appellant. PWs 15, 16 and 17 saw the
accused in the morning. They introduced the theory that the accused
changing the clothes without the knowledge of wife PW-19. All these throw
serious suspicion on the theory of recovery from a public place 45 days after
the incident. Moreover, the recovery itself was organized as a big show that
500 people having gathered there. The police are supposed to have made a
theater show by showing clothes from the recovery place. All these show
that it was a stage managed recovery on which basis no circumstance and
conviction can be imposed on the appellant.
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PW-19 who is the wife of the accused states that the accused came in
the morning on 7.1.2001 wearing a pant and shirt. She did not speak of any
blood stain.
The so called motive for the offence is that the accused was in need of
money to go to Saudi Arabia and for that purpose he killed the six members.
As explained earlier, the motive theory stands exploded in view of recovery
of large amount of cash and jewellery from the scene of crime as is spoken
to by PW-1 Joseph, PW-45 and Investigating Officer (PW-59). If the
accused had money as motive, he would have decamped with the booty.
Subsequently PWs 23 and 24 deposed that accused repaid the loan on the
morning of 7.1.2001 in part to Yohannan (PW-23) and promising to send
balance and in full to Raman Nair (PW-24). When the accused is a
conscientious person who repaid the debts is spoken to by PW-14 and PW-
24. The accused own case is that on the evening of 6.1.2001 Augustine gave
him Rs.35,000/- so that he could repay Yohannan and Raman Nair and
repay Augustine by betting his chitty with DW-1 or after going to Gulf.
PW-19 and PW-23 spoke about the accused having told them that the
money was arranged and mentioned “Chettathis house” to PW-23 and PW-
24. It is enough to show that the accused had returned the money before
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going abroad. PW-23 only wanted a signed stamp paper and unsigned
cheque leaf which also got on the morning of 6.1.2001 and gave it to him.
Accused had a running chitty with DW-1 and spoken to by the said defence
witness. It is the accused who having got the money from Augustine from
his shop went and paid to PWs 23 and 24 and from there with PW-23 came
back, went by bus to Trichur and from there by train to Bombay. In view of
this, motive theory falls to the ground and in the case of circumstantial
evidence the prosecution has come forward with a motive theory there is an
onus on them to prove the same beyond reasonable doubt. The prosecution
has miserably failed in its endeavor. It is also to be noted that the final
report of CBI is not in conformity with that of Crime Branch.
(f) Evidence of PWs 15, 16 17 saw the accused near the house of
Augustine on 7.1.2001 in the morning:
The evidence of PWs 15, 16 and 17 has been discarded by the High
Court. PW-17 discloses this fact to the Court on 8.4.2003 when her
statement was recorded for the first time as to how the police came to know
that she was passing on the road was not explained. Similarly, PWs 15 and
16 having not disclosed to the police when they were examined under
section 161 of the Code. In any case the accused himself came back to the
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house on 7.1.2001 in the morning, no blood stain was noticed by any of the
witnesses. The accused’s house is 20 meters away from the house of the
deceased. In view of this, these witnesses have been made to utter falsehood
and even otherwise there is no other statement which establishes that merely
because the accused was seen he is guilty of committing the murder.
According to PW-15 when he met the accused in the road leads to
railway station he asked the accused where he was going but he has not
replied. This version of PW-15 has been contradicted by his statement
recorded under Section 161 of Code. PW-17 has also stated that on
7.1.2001 at 5.45 a.m. she saw the accused walking through a road lies in
front of the place of occurrence and leads to railway station. According to
her she was on the way to Hospital to see the mother of her mother-in-law.
This statement is also contradictory to her statement given to crime branch.
According to her she was never questioned by the Crime Branch but was
questioned by CBI twice. This is utter falsehood.
(g) So called extra judicial confession to PW-60 as recorded in Ex.P-
48.
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A perusal of Ex.P-48 shows that the so called extra judicial
confession in the wound certificate is in three lines. It purports to say the
following:
th
“On 6 January at about 9 O’ clock while beating
Kochurani with a stool certain injury on finger by contracting
with a knife. No objection to take blood and scalp hair for
examination.”
This is no extra judicial confession. An extra judicial confession has
to be inculpatory and must give substantial details of the manner of
commission. The above two lines inserted in a document which itself has
certain interpolation in the original. In any event, this is not enough to
implicate the accused. Further the Dy. S.P. was also there at the time of the
said alleged statement and hence the same is not at all believable.
(h) So called confession under Section 164 of Code
The accused was arrested on 18.2.2001. He was on illegal custody
from 9.2.2001 onwards. The matter was first given to Crime Branch CID on
5.4.2001 whereafter it was transferred to the CBI on 9.4.2001. This
confession under Section 164 of code is recorded in October, 2002. A
perusal of confession shows that PW-65, Metropolitan Magistrate in the
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State of Tamil Nadu is supposed to have recorded the same. The reason
given by the Investigating agency is that the accused desired to have the
confession recorded in a place outside Kerala. No request in writing is
produced nor the accused is taken to the concerned court and to state the
fact that he wanted to record the confession outside Kerala was recorded. In
fact from 25.1.2002 the accused was on bail with the condition that he will
not leave the jurisdiction of Alua. Without obtaining any relaxation he was
taken to Madras and after torture a confession was recorded in the
Metropolitan Magistrate Court, Chennai. Jayanthi (PW-65) the Magistrate
admits that she does not know to read and write Malayalam. The translator
was produced by CBI but his name was not mentioned anywhere and he was
also cited as a witness who has not been examined by the prosecution. It is
suggested that accused gave the confession in Malayalam which was
translated by the translator to Tamil and the recording was made in Tamil.
The confession document Ex.P-59 was not prepared after following the
mandatory procedures. The accused was not informed that he was not bound
to give the statement and if he gives it will be used against him. Even in the
oral deposition PW-65 only says that she explained to him that he is not
bound to give evidence and later it may go against him. This is not what is
contemplated under Section 164(2) of Code. She should have told him that
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he is not bound to make a confession and that the confession can be used as
evidence against him. Further, a Tamil version of the confession was
translated by PW-76 who says he cannot read or write Tamil. So appellant
has a case where PW-65 cannot read or write Malayalam, PW-76 cannot
read or write Tamil but they can understand Malayalam and Tamil. PW-76
was helped by a subordinate Muthukumar who is not examined. So the real
translators have not been examined, mandatory procedure has not been
followed, the accused had not legally been taken outside jurisdiction. When
the so called confession so sought to be relied upon, the accused in his
statement filed under Section 232(2) of Code flatly denied the same. This
confession cannot be used as a substantial evidence against the accused. In
any case, in the absence of any corroborative material this is no
circumstance against the accused. The accused has no knowledge of Tamil
and he knows only Malayalam.
11. The appellant was in dire need of money as established by the
testimony of PW-67. The Accused/appellant knew that his visa had come
on 23rd December and that a large amount of money was required before
th
10 January 2001. He had also tried to arrange for loan as per the statement
th
of I'W-19. She mentions the amount which he could arrange by 5 January
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2001 and a meager amount of 10,000/- was left with him. From the
statement of Yohannan (PW-23) and Ramachandran Nair (PW-24), the
factum of payment of money amounting to Rs 35,000/- on 7/1/2001 is
clearly proved. The accused/appellant who was in need of money and who
did not have money till 5.1.2001, had surplus amount of money to repay his
debts and make payments to P.I. Ummar (PW-67) and also to pay for his
ticket fare and other expenses. In this context, it will be worth mentioning
that PW-23 had not demanded his money, yet the accused-appellant chose
to liquidate his debt which clearly shows an intention on the part of the
appellant to do away with ill-gotten money.
12. According to accused in the house of the deceased, a large amount of
cash and jewellery was available which could have been taken away by the
accused/appellant and that he, as a conscientious man, had taken so that he
could repay before his departure. The contention is devoid of any merit and
has been found to be incorrect by the courts below. It would be pertinent to
mention here that the trial Court has adverted to the fact that the jewellery
and cash were lying in hidden condition and thus knowledge of its
existence cannot be attributed to the accused/appellant.
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13. At the stage of recording of statement under Section 313 of the Code,
the accused had come with another explanation that the deceased Augustine
had paid him Rs.35 000/- at 8.00 p.m. on 6.1.2001. No evidence at all has
been adduced to show that he was present in the shop of Augustine and had
been given the said amount. Furthermore, even PW-19 wife of the
accused/appellant has not stated that she was told at any stage by her
husband that he had received an amount of Rs.35,000/- from the deceased
Augustine. The trial Court and the High Court both have disbelieved it.
14. The analysis of the evidence shows that the accused/appellant was in
dire and urgent need of more and he had a motive for getting the said
amount of money.
15. PW-38 saw the accused/appellant entering the house at 7.00 p.m. on
6.1.2001. His presence inside the house is also supported by other factors,
namely:
(i) presence of his fingerprints (Ref PW-6 and PW-7);
(ii) presence of hair on deceased's body (PW-51, PW-53 and PW-61);
and
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(iii) absence of accused/appellant from his house. (PW-19).
16. PW-17 saw the accused/appellant at 5.45 a.m. on 7.1.2001 coming
out from the house of the deceased. The evidence has been believed by both
the courts and the cross-examination has not discredited the testimony.
17. It is the admitted case of the parties. PW-19 wife of the accused as
well as the accused/appellant himself has admitted his absence from, his
own house.
18. The theatrical explanation given by the accused/appellant that he was
going to Perumbavoor and at Thottuva, nearly 35 kms away, the auto driver
tried to snatch his money and he ran and stayed at a dilapidated house for
the whole night has been rightly rejected by the courts below. And if he was
at Thottuva which is admittedly 35 kms away from the place of occurrence,
he could not have been seen on the early hours i.e. 5.45 a.m. on 7.1.2001 at
the place of occurrence.
19. Abraham Cheriyan (PW-59), IO supports the factum of statement
under Section 27 of Evidence Act. The recovery has been witnessed by
Ismail (PW-68) and Johny Cyriac (PW-72). Further, the IO from the CBI,
PW-77 has also supported the recoveries and statement under Section 27.
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20. The attempt of the defence to discredit the recoveries on the basis of
answer given by G. Venkataraman (PW-77) to a question relating to
investigation where he had stated that from investigation it was revealed
that only Handkerchief and Socks had been recovered, ignores the fact that
earlier the investigation had been conducted by PW-59 and the said
question was with respect to investigation and not the factum of actual
recovery which has been supported by PW-68 and PW-73.
21. V.O. Jose (PW-6), the photographer had lifted the fingerprints and
PW-7 the fingerprint expert had matched them. The defence has not
seriously denied it, but has tried to explain it by saying that he was a
frequent visitor.
22. PW-51-Sub-Inspector recovered the hair and later the containers
containing the hair were sealed in a separate packet. PW-53 has examined
the hair recovered with the sample hair and has matched it. PW-60 Dr. Anila
Kumari had collected the sample.
23. Much criticism has been made with respect to the collection of hair,
about the aspect of sealing. The evidence on record clearly shows that the
hair was kept in different containers and these containers were later on
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sealed in a packet. The containers themselves were not sealed. But since
they were kept in a sealed packet, there was no possibility of any
tampering.
24. The confessional statement is Exhibit P-59. It has been supported by
PW-65 , the Metropolitan Magistrate. PW-77, IO has categorically
mentioned that the accused/appellant wanted to confess outside the State
of Kerala. The defence assailed the same on the following grounds:
(i) It was a result of torture and was retracted.
(ii) There is non-compliance of Sections 164(4) and 164(2) of
Code.
(iii) Local Magistrate was not informed.
25. It is respectfully submitted that none of the above submissions are
tenable. Confession was not retracted except at the stage of statement
under Section 313 of the Code. No complaint of torture has been made to
the Magistrate, nor the torture has been suggested in the cross-
examination either to PW-59 or PW-77
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26. All necessary precautions required under Section 164(2) have been
taken by the Magistrate as before recording the confession, she has given
time to the accused-appellant to reflect. Secondly, she has also warned the
accused about anything said by him in the evidence could be later on used
against him and that he was not bound to give evidence. The submission of
the defence that the word used by the Magistrate was `evidence' instead of
`confession' and therefore, there was non-compliance of Section 164(2) is
hyper-technical. The Magistrate has recorded in the statement that she has
given the statutory warning and the statutory advice that he was not bound
to make the statement. Section 463 has rightly been applied in the case.
27. This Court in State of UP v. Singhara Singh (AIR 1964 SC 358) (para
10) explained the scope of the oral evidence with respect to statements
under 164 of Code as can be adduced under section 533 of Code (now
Section 463 of Code) in following words:
".......What section 533 therefore, does is to permit oral
evidence to be given to prove that the procedure laid down in
section 164 had in fact been followed when the court finds that
the record produced before it does not show that that was so. If
the oral evidence establishes that the procedure had been
followed, then only can the record be admitted. Therefore, far
from showing that the procedure laid down in Section 164 is
not intended to be obligatory, Section 533 really emphasises
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that procedure has to be followed. The section only permits
oral evidence to prove that the procedure had actually been
followed in certain cases where the record which ought to show
that does not on the face of it do so.”
28. There has been full compliance of provisions of Section 164(2) and
the confessional statement made freely and voluntarily by accused on bail
cannot be rejected merely because the Magistrate has used the expression
`evidence' instead of `confession' while warning the accused.
29. It would be further pertinent to mention here that the accused-
appellant was released on bail on 25.1.2002 and he has given the
confessional statement on 9.10.2002. Thus, when he had given the
confessional statement, he was a free man. Further, the accused in his
statement under Section 313 or during the cross-examination, has not
suggested that the statement recorded by PW-65 under Section 164 was
false.
30. PW-60-Dr. Anila Kumari has supported the case of extra judicial
confession (Ext. P-48) which records the history of injury and also records
the said confession. The statement made by the independent witness Dr.
Anila Kumari has been accepted by both the courts below. In her
examination-in-chief, she has stated that, "I had examined Antony as per the
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request of Dy.S.P. of Aluva. There is no material to show that the said Dy.
S.P. (PW-59) was present at the time when the statement was recorded. Dy.
S.P.(PW59) does not state that he had accompanied the accused to Doctor's
house. Secondly, there is no material on record nor is there any suggestion
made to PW-60 that when she had recorded the said confessional statement,
any police person was present with the accused-appellant. Thus, the
criticism of the defence that the said statement is not fit to be accepted as it
has-been recorded in the presence of the police officers is without any
material on record.
31. The appellant explanation in respect to the aforesaid noted is as
follows:
Merely on suspicion and relying on the so called circumstantial
evidence, which fall far short of required standard of proof the prosecution
attributes motive to the accused i.e. he was in need of money to go to Saudi
Arabia and that he murdered the deceased for that purpose. The motive there
stands exploded if the evidences of PW 1, Mary Sunny (PW-45) and
investigating officers PW-59 and PW-77 are perused. PW-1 states that on
searching the house apart from savings bank deposit receipts worth Rs. 45
lakh, gold ornaments worth 55 sovereign were recovered from the almirah
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and currency notes worth Rs. 1.50 lakh were also recovered from that room
in a brief case. Further, in the next room currency notes worth Rs, 45,000/-
were recovered and gold ornaments kept inside the almirah were recovered.
PW 45 another sister of deceased Augustine also corroborates this, though
she says 95 sovereigns of gold ornaments and cash worth Rs 2.5 lakh were
recovered. The investigating Officer also testifies to the same effect.
32. The accused denied his involvement in the crime. The evidence of the
prosecution witnesses namely, PW 14, PW 23, PW 24 go to show that the
accused was a conscientious person who reed the debts and that out of the
new given by Augustine on 6.1.2001 of Rs 35 000/- he had repaid PW 23
and PW 24. If money was a motive, the accused would have decamped with
cash and jewellery and such a person will not be conscientious enough to
repay the loan to PWs 23 and 24, and promised PW 23 that he will settle the
balance of Rs. 3000/- with interest and also not take back the signed stamp
paper and the blank cheque left with PW 23.
33. Above being the position, the appeal is without merit, and deserves
dismissal which we direct.
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……..………………………..…..J.
(Dr. ARIJIT PASAYAT)
……..…………………………….J.
(LOKESHWAR SINGH PANTA)
New Delhi,
April 22, 2009
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