JUDGMENT [ENTITY], J.
1. Appellant-accused was charged under [SECTION] and [SECTION], [ACT] for having caused the death of his fiancee [ENTITY], a divorcee aged 20 at about 8 p.m. on 15-4-1988 at a deserted place situated to the north-eastern side of Kaniyampara bund lying to the north of the road proceeding from Pathi to Athiyoti in Kayanna amsom and athiyoti desom by strangulating and smothering her and committed theft of her jewels. It was alleged that the accused along with [ENTITY] went to the said deserted place, had sexual intercourse with her and when [ENTITY] wanted the accused to take her along with him to his residence, accused declined; whereupon [ENTITY] threatened that, she would reveal to her people as to what the accused has done to her, and that scared of the consequence if [ENTITY] revealed as she threatened, he caused her death by strangulation and smothering, and thereafter removed her jewels from the dead body.
2. Accused was found guilty of the offences punishable under [SECTION] and [SECTION], [ACT] by the learned Sessions Judge, Kozhikode Division, convicted him and sentenced him to undergo imprisonment for life Under [SECTION], [ACT]; no separate sentence was awarded Under [SECTION], [ACT].
3. The prosecution case can be summarised as follows : [ENTITY] and the accused were employed under PW-4, a Contractor. As usual [ENTITY] left her house to the work place at 7 a.m. on 15-4-1988 and returned by 5 p.m. By about 6 p.m. she went to Koorachundu for purchase; returned by 7 p.m., and according to PW-12, her mother [ENTITY] left saying that she was going to the house of PW-6, her sister who was residing nearby. Later after prayers when PW-12 found that [ENTITY] has not returned; she went to the house of PW-6 and enquired who told her that [ENTITY] did not come there. By that time PW-1, the elder brother of [ENTITY] who was away returned and on learning that [ENTITY] has not returned, he made search for [ENTITY] in the neighbourhood; but could not find her, so he went to the residence of the accused, but accused was not there. Thereafter, he proceeded to PW-4, the Contractor who told him that the work had to be stopped at 4 p.m. due to rain and that all workers had left by 4 p.m. Again, he went to the residence house of the accused, but he was not there and while PW-1 was in front of a shop talking with an acqusintence he saw the accused returning to his room and he (PW-1) went there and enquired about [ENTITY]. He (accused) said that, she did not work with him on that day. He went home. Next morning, he went to the house of one [ENTITY], a co-worker of [ENTITY] along with the accused, she said that, [ENTITY] did not come to her house. PW-1 decided to report the matter to the police and while he was on his way to the police station, he saw people collected near the bund of Kaniyampara thodu. He went there and found [ENTITY] lying dead with blood oozing from her mouth and nose, and her dresses dishevelled.
4. Thereafter, PW-1 went to the police station and tendered Ext. P1F.I. statement before PW-15, A.S.I of police at 8 a.m. He registered a case for which he prepared Ext. P1(a) FIR. The investigation was taken over by PW-17, Circle Inspector of Police. He held inquest over the dead body; Ext. P2 is the inquest report under which he seized M.Os. 1, 3, 6, 7, 8, 9, 16 and 17. The dead body was sent for post-mortem, PW-10 conducted the autopsy and issued Ext. P7 post-mortem report and final opinion Ext. P9.
5. PW-17 arrested the accused on 18-4-1988. As per the information received from the accused, he recovered M.Os. 2, 4 and 5 jewels of [ENTITY] along with M.Os. 12, 13 and 14 the lunki, pants and shirt of the accused under Ext. P13 to which PW-4 is an attestor. PW-8 tested potency of the accused and issued Ext. P5 certificate. PW-17 questioned the witnesses, completed the investigation and laid the charge before court.
6. Accused pleaded not guilty to the charge. Prosecution examined PWs. 1 to 17, produced Exts. P1 to P17 and identified M.Os. 1 to 17. On the side of the defence Ext. D1, a portion of the case diary contradiction of PW-2 was proved.
7. PW-10 who conducted the autopsy stated in Ext. P7 and in his evidence as to the features of the dead body and also the details of the injuries on it. He said that, both the eyes showed severe subconjunctival bleeding, tongue was seen bitten, bloodstained fluid was corning out of nostrils, left angle of mouth, and inner angle of right eye. Finger nails were found blue. He noted as many as 24 injuries of which injury No. 20 was skin contusion 2 x 3 cm. on the right of front of neck 1 cm, to right of midline and 6 cms, above inner and of right collar bone, injury No. 21 too was skin contusion 0.8 x 0.8 cm, on left side of front of neck 2 cms, to the left of injury No. 20, Injury No. 22 again was a contusion on the front of the neck below injury No. 21 measuring 0.3 x 03 cms. Injury No. 23 was an abrasion 0.2 x 0.3 cms. on front of neck just to the right of midline 4.5 cm. above inner end of right collar bone and injury No. 24 was a contusion 3 x 2 cms. on the right side of face 1 cm. below right ear. Internal injury Nos. 2, 3 and 4 also showed subcutaneous tissue on the lower part of left side of neck inflitrated with blood. Such inflitration of blood was also noted in the soft tissues over an area 3 x 2 cms. on the upper right of sternomastoid muscle region. The cause of death, according to PW-10, was due to asphyxia following constructive force applied on neck and smothering.
8. Ext. P8 is the Chemical Examiner's report based on which PW-10 issued Ext. P9 final opinion wherein he said, there was evidence of recent sexual act prior to the death of the victim. From the features noted above, it is abundantly clear that [ENTITY] died because of strangulation and smothering. The injuries noted en the neck and also the corresponding internal injuries unambiguously support such a conclusion. On examination of vaginal swab and vaginal smear which are items 4 and 5 in Ext. P8, it is stated that human semen and spermatozoa were detected. The evidence of PW-8 and Ext.P5 would show that the accused is capable of sexual intercourse. Thus, the evidence of PWs. 8 and 10 along with Exts. P5, P7, P8 and P9 would show that before [ENTITY] met with her death, she had sexual intercourse and that the death was homicide.
9. There is no occurrence witness; naturally therefore the prosecution seeks to bring home the guilt of the accused on the strength of circumstantial evidence. The circumstances relied on are :
(i) [ENTITY] and the accused were intimate and were in love; they had occasion and facility to become intimate.
(ii) [ENTITY] was seen last in the company of the accused.
(iii) The accused had a bite injury on his chest; the cause of which he revealed to PW-9 to be on account of the bite by [ENTITY] when she was strangulated.
(iv) As per the information received from the accused, Jewels M.Os. 2, 4 and 5 belonging to [ENTITY] were recovered under Ext. P13 by PW-17.
(v) M.O. 16 press button bulb with spike seized under Ext.P6 from the scene caused the circular impression mark in M.O. 14 shirt of the accused seized under Ext. PI3 from his room.
10. PW-12, the mother of the deceased has sworn that, at about 7 p.m. on the date of occurrence [ENTITY] left stating that she was going to the house of PW-6 who was residing nearby, but even after PW-12 came after prayers since [ENTITY] did not return, she enquired with PW-6 who told her that [ENTITY] did not come there. By that time, PW-1, elder brother of [ENTITY] came there. PW-1 said, he made search in the neighbourhood for [ENTITY]; not; finding her in the neighbourhood, he went to the room of the accused as accused and [ENTITY] were working under PW-4, the Contractor, but the accused was not there, He (PW-1), therefore, went to PW-4 who told him that, the work had to be stopped at 4 p.m. due to rain and that all workers left by 4 p.m. Then he went back to the room of the accused; he was not there and while he was waiting in front of the shop nearby, saw the accused going to his room and he asked him about [ENTITY], the accused denied that [ENTITY] had worked with him on that day. Thereafter both together made further search. PW-1 proceeded to swear that, on the next early morning he went to the house of [ENTITY], a co-worker who told him that [ENTITY] did not come to her house. It was thereafter, that, PW-1 decided to report the matter to the police and on his way to the police station he saw people collected near the Kaniyampara bund in Pathi. He went over there to find to his shock [ENTITY] lying dead. It was then that, he went to the police station and tendered Ext.P1 F.I. statement before PW-15.
11. The evidence of PWs. 1, 2 a neighbour, 3 a co-worker and 6 the sister of [ENTITY] would show that [ENTITY] and accused were working under PW-4 that they were fond of each other and that the accused used to accompany [ENTITY] to her house when she left the work late; and the evidence of PW-3 would show that, they were intimate. Thus, it is not as if, the accused is a total stranger, the accused was only 23 years and [ENTITY] 20. The evidence of PW-1, the brother of [ENTITY] would show that, she was a divorcee.
12. This is the background when [ENTITY] was found missing on the date of occurrence. As per the evidence of PW-1 at about 7 p.m. [ENTITY] left saying that she was going to visit PW-6, her sister. Her dead body was seen on the next morning in a deserted place near the Kaniyampara bund. The evidence of PWs. 2 and 3 is of importance in this connection. PW-2 said that, on the date of occurrence, he saw [ENTITY] and the accused together at about 7.15 p.m. about 50 metres away from the scene of occurrence. He is an acquaintance and neighbour; he saw the dead body of [ENTITY] on the next morning. Then PW-3 said that, he saw [ENTITY] last at about 6-15 p.m. on 15-4-1988 near the arrack shop along with the accused, they were seen engaged in conversation. He (PW-3) says that, he made a comment to the accused to stop romance and allow the girl to go. It is true that PW-12, the mother said, [ENTITY] returned from the work at 5 p.m. on 15-4-1988, had bath and left for purchase and returned by 7 p.m. and then she went out saying that, she was going to the house of PW-6 nearby; but she never returned. The evidence of PW-2 that, he met [ENTITY] along with the accused at 7-15 p.m. certainly would show that [ENTITY] was seen last alive along with the accused by him. Though PW-3 said that, he saw [ENTITY] with the accused at about 6-15 p.m. on 15-4-1988, there is no inconsistency between the evidence of PW 12 and PW-3 as, viewed in the background of their friendship, attachment and intimacy, it can be inferred that, the accused met [ENTITY] at 6-15 p.m. on 15-4-1988 while she was away from home for purchase as a prelude to their going to the scene of occurrence as immediately on reaching home she left again at 7 p.m., and then PW 2 saw them together at 7-15 p.m. near the scene of occurrence. Next morning her dead body was found, it was revealed, that prior to the death, she had sexual intercourse. There is nothing wrong in the circumstance to infer, both of them together went to the scene of occurrence as prearranged by them. Nothing could be brought out in the evidence to disbelieve the said item of evidence. For the present, it would be sufficient to note that the accused and the deceased were seen together last; its effect and probative value have to be judged with due regard to the other circumstances brought out in evidence.
13. PW-17 arrested the accused on 18-4-1988. The occurrence was at about 8 p.m. on 15-4-1988. Accused had a bite mark above the left nipple. PW-9 examined him; and issued Ext. P6 which contains the description of the injury. It is stated :
Bite mark 5 cms. above the nipple left side obliquely placed. There is a distance of 1.5 cms. in between upper and lower teeth marks. All teeth marks not seen.
Ext.P6 also said, the injury was 3 to 5 days old. PW-9 said that injured told him that the bite mark was produced by biting by [ENTITY] while she was strangulated. In Ext.P6 it is stated : "Accused told me that it was produced by biting by [ENTITY] while she was strangulated". This is relied on as a circumstance to show that it was the accused who caused the death of [ENTITY]. If the said evidence of PW-9 is admissible, that would go a long way in support of the prosecution case. It was contended that since the accused was in custody, the said confession is inadmissible because of [SECTION] of the [ACT]. It is also contended that, the said statement is not true.
14. We may first examine as to whether such a statement by the accused is admissible in evidence. What made inadmissible under [SECTION] of the [ACT] is confession by a person in custody of police. The question therefore, for consideration is whether the said statement could amount to a confession. If the same is not a confession, the same is an admission, relevant and admissible under [SECTION] of the [ACT].
15. Confession is not defined in the [ACT]. Confession is a direct admission or acknowledgement of his guilt by a person who has committed a crime. A similar question arose for consideration in the decision in State of [ENTITY] [PRECEDENT] wherein it is held (at page 116 (of Cri LJ) :
What is prohibited is only "confession", and the embargo is not extended to the statement which do not amount to confession. Admissions can be proved as against the person who makes it, and [SECTION] of the [ACT] permits such admissions being proved. The contours of [SECTION] are not bounded by limitations of the person being in the custody of a police officer.
In the decision in [PRECEDENT] the Privy Council considered this aspect and observed :
The word "confession" as used in [ACT] cannot be construed as meaning a statement by an accused "suggesting the inference that he committed" the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession.
Thus, as admission of a gravely incriminating fact by itself cannot amount to a confession.
16. Here all that is said is that, the accused told PW-9 that the bite mark was produced as a result of the bite by [ENTITY] while she was strangulated. With due regard to the test laid down in [ENTITY]'s case, [PRECEDENT] and also [ENTITY]'s case [PRECEDENT] it is clear that the said statement will not amount to a confession. An admission is a statement suggesting an inference as to any fact in issue or any relevant fact; and the admission must be unambiguous, clear and precise. It shall not be vague and if an admission is capable of two interpretations, an interpretation unfavourable to the person making it should not be put on his admission. Of course, the evidentiary value of the admission would depend on the circumstance in which the same was made. It is open to the party against whom it is sought to be proved to show that the same is vitiated by any vitiating circumstance. Nothing is brought out in the evidence of PW-9 to disbelieve his testimony. The admission is clear to the effect that the bite mark on the chest of the accused was caused by [ENTITY] when she was strangulated. In view of the same, the said piece of evidence is admissible as per [SECTION] of the [ACT]. Even otherwise, the fact that the accused had a bite mark on his chest which he sustained at about the time of occurrence is certainly a relevant circumstance in the chain of circumstances against him. The nature of the injury and the place where the same is placed are such that the same could be inflicted when the victim was struggling to save herself. There was a struggle, could be discerned from the description of the scene of occurrence in Ext.P2 inquest.
17. The next circumstance relied on is the recovery of Mos. 2, 4 and 5 under Ext. P-13 by PW-17 as per the information furnished by the accused. The accused was arrested on 18-4-1988. PW-17 has sworn to the confession made by the accused which led to the recovery of MOs. 2, 4 and 5. He said that the accused led him to the room occupied by him and he took out MOs. 12, 13 and 14 from the cloth line and from the pocket of MO-13 pants he produced a pack which contained MO-2 gold thara chain, MO-4 gold jimiki and MO-5 pattu. PWs. 1, 6 and 12 identified the said jewels as belonging to [ENTITY]. PW-6 also said that it was she who got MO-2 made for [ENTITY] by PW-13 and he (PW-13) issued Ext. P3 receipt. PW-13 supported PW-6 and said, he issued Ext. P3. The jewels thus having been identified by the mother, sister and brother, there can be no doubt as to the identity of the same particularly in the light of Ext. P3 and the evidence of PW-13. These articles were found concealed within the pocket of the pants belonging to the accused.
18. Learned Counsel for the appellant contended that, since the said room was being occupied by others also, the said confession cannot be admitted in evidence under [SECTION] of the [ACT]. The extent of the information admissible will depend on the exact nature of the fact discovered to which such information is required to relate. The fact discovered takes in the place from which the object is produced and the knowledge of the accused as to the same. From the evidence as to the place of concealment; that is, the pocket of the pants belonging to the accused, it is certainly clear that the said place of concealment was within the exclusive knowledge of the accused and therefore even if the room was occupied by others also, since the place of concealment was within the exclusive knowledge of the accused, the confession which related distinctly to the discovery of the said fact is admissible under [SECTION] of the [ACT].
19. The next circumstance relied on is, with respect to MO-16 press button with spikes seized under Ext. P2 from the scene of occurrence. In Ext. P-16 report of the Assistant Director (Biology), Forensic Science Laboratory, Thiruvananthapuram it is stated that, "The circular impression mark on the right slap of the shirt in item (7) could have been caused by the metallic ring in item (8)." Item No. (7) is Mo-14 shirt belonging to the accused seized under Ext. P-13 at the time of recovery of MOs. 2, 4 and 5; and item No. (8) in Ext. P-16 is MO-16. What is now stated in Ext. P-16 is the circular impression mark on MO-14 could have been caused by MO-16 recovered from the scene. This circumstance is relied on to show that, the accused was at the scene of occurrence and the very fact that MO-16 which was fixed with MO-14 was found at the scene would support a conclusion that accused lost MO-16 in struggle. In the context, the said evidence is also relevant, and that too would support the prosecution version.
20. The deceased was seen last in the company of the accused; the accused was found to be in possession of jewels belonging to the deceased, he had a bite mark on his chest, which as indicated, was sustained by him at the time of occurrence, and, he revealed to PW-9, the doctor that the said bite mark was caused by [ENTITY] when she was strangulated. The press button in the shirt of the accused was discovered from the scene of occurrence. The probative value of the circumstance that the deceased was last seen in the company of the accused has to be judged and understood in the context of the aforesaid circumstance. When so understood, it could be seen that the said circumstance is highly incriminatory. In the decision in [PRECEDENT] it is held that in the light of the supporting circumstance made out by the prosecution the fact that the deceased was seen last along with the accused is highly incriminatory.
21. When the prosecution case rests on circumstantial evidence, the circumstances should be cogently and firmly established, those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused and the circumstance taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else [PRECEDENT] and [PRECEDENT]. The same principle is reiterated in the decision in [PRECEDENT]. The circumstances cumulatively should form a chain to support a conclusion that within all human probability the crime was committed by the accused and none else. In the decision in [PRECEDENT] while laying down the ingredients to be established in case based on circumstantial evidence the Supreme Court cautioned :
Before an accused can contend that a particular hypothesis pointing to his innocence has remained unexcluded by the facts proved against him, the court must be satisfied that the suggested hypothesis is reasonable and not far-fetched. Further it is not necessary that every one of the proved fact must in itself be decisive of the complicity of the accused or point conclusively to his guilt. It may be that a particular fact relied upon by the prosecution may not be decisive in itself, and yet if that fact, along with other facts which have been proved tends to strengthen the conclusion of his guilt, it is relevant and has to be considered. In other words when deciding the question of sufficiency, what the court has to consider is the total cumulative effect of all the proved facts each one of which reinforces the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that any one or more of those facts by itself is not decisive.
(Emphasis supplied)
22. As noticed the accused was found to be in possession of the jewels belonging to [ENTITY]. The recent unexplained possession of stolen articles in the circumstance has to be taken as presumptive evidence of charge of murder as well. [PRECEDENT] and [PRECEDENT]. The said proved circumstances are such that, we have no doubt in our mind that, it was the accused and nobody else who caused the death of [ENTITY]. The conviction and sentence awarded by the learned Sessions Judge are only to be confirmed. The appeal is without merit and the same is liable to be dismissed.
In the result the appeal fails and the same is dismissed.