IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 CRL.A.No. 1120 of 2007(D) ------------------------- SC.397/2005 of the Additional Sessions Court (Adhoc-II), Ernakulam .................... APPELLANT : 1ST ACCUSED ------------------------- SAIFUDHIN @ TONY, C.NO.6043, CENTRAL PRISON, VIYYUR, THRISSUR. BY ADV. SRI.E.D.GEORGE [STATE BRIEF] RESPONDENT(S): COMPLAINANT -------------------------- STATE REP.BY C.I. OF POLICE, ERNAKULAM TOWN SOUTH P.S., CR.226/01. PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2011 ALONG WITH CRA NO.1121 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** Crl.Appeal Nos.1120 & 1121 of 2007 ***************************** Dated this the 14th day of December, 2011 JUDGMENT BASANT, J. (i) Does the evidence of recovery of M.Os 2 and 3 (of gold ornaments allegedly of the deceased) under Section 27 of the Evidence Act inspire confidence? (ii) Is it safe to found a verdict of guilty, conviction and sentence under Section 302 I.P.C on such evidence of recovery alone? (iii) Are the accused entitled for the benefit of doubt in the facts and circumstances of the case? These questions are raised before us by Advocates E.D.George and M.R.Jayaprakash, whose services have been made available to the appellants as legal aid counsel to argue their appeals. Crl.Appeal Nos.1120 & 1121 of 2007 2 2. The appellants have been found guilty, convicted and sentenced under Sections 302 and 392 I.P.C. They face a sentence of imprisonment for life and Rigorous Imprisonment for a period of 7 years under those sections respectively. Sentences of fine and default sentences have also been imposed. 3. The prosecution alleged that on the night of 03/11/2001, the appellants had gained access into the house of the deceased, a housemaid, aged above 80 years, when no other person was available in the house. She was smothered and strangulated. She died and the appellants decamped with M.Os 2 and 3 gold ornaments, which the deceased was allegedly wearing at the time when she was killed. The prosecution alleged that the appellants have thereby committed the offences punishable under Sections 392 and 302 r/w 34 I.P.C. 4. Investigation commenced with Ext.P1 F.I statement lodged by PW1, a neighbour. He found the deceased lying dead inside her house on the morning of 04.11.2001. In fact, Manoj a Crl.Appeal Nos.1120 & 1121 of 2007 3 relative of the daughter in law of the deceased had come to the house of the deceased on that morning and it was he, who allegedly perceived that the deceased was dead. Investigation was initially conducted by PW14. The same was completed by C.W35 by filing a final report/charge sheet before court. The learned Magistrate after observing all legal formalities committed the case to the Court of Session and the Court of Session took cognizance of the offences. The appellants/accused denied the charges framed against them and thereupon the prosecution was directed to adduce evidence in support of its case. The prosecution examined PWs 1 to 16 and proved Exts.P1 to P15. M.Os 1 to 5 were also marked. 5. The accused, in the course of cross examination and when examined under Section 313 Cr.P.C, denied all circumstances which appeared in evidence against them and which were put to them. They took up a defence of total denial. According to them, they have nothing to do with the death of the Crl.Appeal Nos.1120 & 1121 of 2007 4 deceased. They did not examine any defence witnesses. Ext.D1 case diary contradiction was marked when PW10 was in the witness stand. 6. The learned Sessions Judge, on an anxious evaluation of all the relevant inputs, came to the conclusion that the appellants, who allegedly had sold M.Os 2 and 3 to PW9/PW12 shortly after the occurrence, can safely be assumed and presumed to have committed the offence punishable under Sections 392 and 302 I.P.C. Accordingly the learned Sessions Judge proceeded to pass the impugned judgment. 7. Before us, the learned counsel for the appellants and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellants contend that the prosecution has not succeeded in proving any circumstance to connect the appellants with the crime. At any rate, the circumstances relied on by the prosecution are insufficient to justify a safe inference of guilt against the appellants under Crl.Appeal Nos.1120 & 1121 of 2007 5 Sections 302 or 392 I.P.C, it is contended. 8. An appellate judgment is and must essentially be read as a continuation of the judgment of the trial court. In that view of the matter, we deem it unnecessary to re-narrate the oral and documentary evidence relied on by both sides. Suffice it to say that we have been taken in detail through the evidence of PWs 1 to 16 and the contents of Exts.P1 to P15. We have also been taken through the charges framed by the learned Sessions Judge and the answers given by the accused in the course of their examination under Section 313 Cr.P.C. We shall refer to specific materials wherever necessary in the course of the discussions that follow. 9. The case rests entirely on circumstantial evidence. About the law relating to the burden of proof in a case resting entirely on circumstantial evidence, it is unnecessary for us to advert to precedents. The law on the point is too well settled to justify or warrant reference to any specific precedents. We need Crl.Appeal Nos.1120 & 1121 of 2007 6 only remind ourselves about the law. 10. The burden rests entirely on the prosecution to prove all circumstances relied on by it to establish the charge against the indictee. Such circumstances have to be established firmly and satisfactorily. The circumstances must constitute strong links in a chain of circumstances and the chain must point unclinchingly and unerringly to the guilt of the accused - to the exclusion of every reasonable hypothesis of innocence of the indictees. 11. Having thus reminded ourselves about the law, we shall now attempt to enumerate the various circumstances relied on by the prosecution. They are: 1) The deceased met with a homicidal death. 2) No other person is shown to have come to the house of the deceased on the crucial night (night of 03.11.2001). 3) M.Os 2 and 3 ornaments belong to her and they were found missing from the dead body. Crl.Appeal Nos.1120 & 1121 of 2007 7 4) The appellants while in custody furnished information to PW16 in September, 2002 on the basis of which PW16 recovered M.Os 2 and 3 from PWs 9 and 12. 5) The evidence of PWs 8, 9 and 12 that M.Os 2 and 3 were sold by the appellants to them some time in November, 2001. 6) The absence of any explanation coming forth from the appellants about the recovery of the ornaments and the evidence of PWs 8, 9 and 12. 12. Circumstance No.1 is proved and there virtually is no dispute about that circumstance. Coming to circumstance No.2, there is absolutely no evidence to indicate that any particular (specific) person had gained access into the house of the deceased on that night. However, evidence indicates that some (unknown) person/persons may have gained access into the house on that night. There is absolutely nothing to indicate whether the ones who gained access into the house were the Crl.Appeal Nos.1120 & 1121 of 2007 8 accused or any other person. To this extent, it has to be held that while it is indicated that some one has gained access into the house, there is no specific other circumstance in evidence to indicate that it was the accused, who gained access into the house. 13. Circumstance No.1 is thus proved. Circumstance No.2 is not satisfactorily established, though it is indicated that some unspecified person must have gained access into the house on that night. 14. Circumstance Nos.2 to 6 deserve to be considered together as they are integrally connected to each other. We shall hence undertake a common discussion so far as circumstances 2 to 6 are concerned. 15. The learned counsel for the appellants submit that the appellants come from the economically weaker sections of society. They are illiterate and uneducated. They have not been able to engage a counsel of their own. Services of legal aid Crl.Appeal Nos.1120 & 1121 of 2007 9 counsel were made available to the appellants before the court below and before this Court. The counsel relied on these inputs to contend that crucial significance cannot be attached to inadequacies in the conduct of the trial on the side of the appellants. Many questions which ought to have been asked have not been asked to the witnesses. The defence has not been properly moulded. But these cannot persuade the Court not to anxiously consider whether these circumstances have been proved and if proved, they constitute sufficient material to infer guilt of the appellants, contend counsel anxiously. We have no hesitation to agree with the learned counsel. We have gone through the entire evidence in this case. That the appellants were not blessed with highly competent legal assistance is evident from the manner in which the case has been conducted. But, that cannot certainly deliver any undeserved advantage to the appellants. Whether defended or not, whether the defence is properly conducted or not, the burden rests on the court to Crl.Appeal Nos.1120 & 1121 of 2007 10 ensure that a fair trial takes place and the court must consider all the relevant materials to come to appropriate conclusions about the complicity of the appellants. The appellants need not hence worry at all about the alleged inadequacies in the conduct of the trial provided, the appellants are now able to show before Court that the circumstances have not been proved satisfactorily and the proved circumstances cannot lead to the guilt of the appellants. 16. Secondly by way of opening remarks the learned counsel for the appellants want to highlight the inherent risk involved in accepting evidence of information furnished under Section 27 of the Evidence Act, which allegedly led to discovery of facts. The learned counsel for the appellants contend that in this case absolutely no other evidence has been adduced by the prosecution to establish the alleged complicity of the appellants except the evidence of recovery under Section 27 of the Evidence Act. The evidence of recovery is inherently a weak Crl.Appeal Nos.1120 & 1121 of 2007 11 piece of evidence; considerable care and caution is necessary before the court accepts the evidence of recovery under Section 27 of the Evidence Act; given the unsatisfactory track record of the Indian police, no court would be justified in placing implicit reliance on such evidence of recovery under Section 27, contend the learned counsel for the appellants. They complete arguments on this aspect by asserting that the meagre evidence about recovery under Section 27 cannot, at any rate, be used to found any crucial finding of fact against an indictee facing prosecution for such serious offences like the ones in this case. 17. The learned Public Prosecutor on the other hand contends that the importance of evidence under Section 27 of the Evidence Act cannot be lightly wished away by pressing into service such theories of earlier misuse of the provisions of Section 27 by the Indian police in different circumstances. The learned Public Prosecutor contends that this Court has to anxiously consider whether the information furnished under Crl.Appeal Nos.1120 & 1121 of 2007 12 Section 27 which had led to discovery of facts can safely be accepted. The evidence of the police officials also requires a fair, reasonable and natural appreciation. The system will not be justified in approaching of testimony of all Investigating Officers with undeserved doubt, suspicion and distrust. If the evidence of PW16 in this case is appreciated fairly, naturally and reasonably, there is no reason intrinsically or on broad probabilities to adopt such an attitude of doubt, suspicion and distrust against the evidence of recovery. This court must come to a conclusion on the basis of the totality of inputs that the evidence of recovery can safely be relied on, argues the learned Prosecutor. 18. The learned Public Prosecutor further contends that it is not the law at all that a verdict of guilty cannot be founded on a satisfactory piece of evidence admitted under Section 27 of the Evidence Act, which inspires the confidence of the court. If the evidence on record is sufficiently inspiring, the mere fact that such evidence has entered the court records through the door of Crl.Appeal Nos.1120 & 1121 of 2007 13 Section 27 of the Evidence Act is by itself no reason to discard such testimony or not to use it to found any verdict of guilty for serious offences. 19. On these aspects we find absolutely no difficulty. Sections 24 to 26 of the Indian Evidence Act mandate that an approach with care and caution must be adopted by the court while considering evidence of statements made by accused persons in custody to police officials. There can be a lot of discussions as to whether such inherent distrust of the police force by the system is justified or not. It can certainly be argued that it is anachronistic that in the independent Indian republic such an attitude of distrust must pervade among all other members of the system of administration of justice against the police force. 20. The position under law is indisputable. Law does not approve admission of confessions made before police officers by persons in custody. Law's attitude on this aspect is evident from Crl.Appeal Nos.1120 & 1121 of 2007 14 Sections 24 to 26 of the Evidence Act. Section 27 of the Evidence Act, which starts with the words “Provided that” is an exception to Section 24 to 26 of the Evidence Act. It accepts the principle of “confirmation by subsequent event” and makes such information given by a person accused of an offence in the custody of the police officer admissible if a fact is discovered in consequence of the information, provided, the information relates distinctly to the fact thereby discovered. It is unnecessary to advert to precedents. It must be shown by the prosecution that the information distinctly relates to the fact discovered in order to claim admissibility under Section 27. 21. The evidence of such information and discovery in consequence of the information will certainly have to be approached with great care and caution. Such is the gross misuse of this safety valve provision under the Indian Evidence Act by the police that a trained and experienced adjudicator is always very cautious and careful before such information Crl.Appeal Nos.1120 & 1121 of 2007 15 admitted in evidence is accepted. There is a long distance between admissibility and acceptability and that entire distance will have to be traversed by an adjudicator armed with the wealth of his prudence, knowledge, experience and sagacity. If evidence of recovery under Section 27 is inspiring, that can certainly go a long way to help the Court in the adjudication of guilt. The question is whether such discovery inspires confidence; to decide which, a Court will have to take note of all the attendant circumstances. 22. We shall now try to approach the evidence of information allegedly furnished by the accused, the acceptability of such information and the extent to which such consequent discovery can be made use of by the Court in coming to appropriate conclusion about the culpability of the appellants. 23. It is first of all argued by the prosecution that M.Os 2 and 3 are ornaments that belonged to the deceased. This aspect is seriously contested by the accused. According to the Crl.Appeal Nos.1120 & 1121 of 2007 16 appellants/accused, there is no satisfactory evidence to indicate that M.Os 2 and 3 are ornaments belonging to the deceased. There is nothing to show that such ornaments were missing at the time when the dead body was found in her house on 04.11.2001, contend counsel. 24. M.O2 series consists of one gold chain weighing 13 grams. It also includes two gold bangles each weighing 8 grams. M.O3 series is two ear rings weighing in all 3.500 grams. According to the prosecution, these ornaments belonged to the deceased and she was using the same. It is their further case that these were found missing when the dead body of the deceased was found on 04.11.2001 at her house. 25. First of all reliance is placed on Ext.P1 to contend that it was not promptly reported to the police in Ext.P1 by PW1 that there was any conspicuous absence of ornaments worn by the deceased when her dead body was found. PW1 is of course not a police official. He may not have the acumen to perceive and look Crl.Appeal Nos.1120 & 1121 of 2007 17 for the importance of availability of ornaments on a deceased person. But all the same, one cannot lose sight of the fact that in Ext.P1, PW1 had not stated that deceased used to wear any ornaments or that such ornaments were found missing when her dead body was found. 26. We have the evidence of PWs 5 and 7 on the question as to whether M.Os 2 and 3 were ornaments of the deceased. PW5 is the lady at whose house the deceased was employed as a maidservant. She identified M.O2 as the gold chain and two bangles worn by the deceased. Evidence of PW5 suggests that the gold chain used to be worn by her for a period of about 10 years; whereas the gold bangles used to be worn by her for the past about two years. PW7 is the daughter in law of the deceased. Her husband (the son of the deceased) had expired earlier and the deceased was residing with PW7 and her two children. According to PW7, M.O2 series gold chain and the bangles used to be worn by the deceased. However, according Crl.Appeal Nos.1120 & 1121 of 2007 18 to her, the two gold bangles were purchased only about two weeks prior to the date of her death. The learned counsel for the appellants bring to the notice of the court that it would, in these circumstances, not be safe to attach crucial significance and importance to the evidence of PWs 5 and 7 about the gold ornaments worn by the deceased. Particular reliance is placed on the incongruity about the age of the gold bangles which the deceased was wearing. So far as M.O3 series ear studs are concerned, PW5 did not identify them at all, whereas PW7 stated that, that gold ear ring belongs to her daughter and the deceased used to wear the same. Thus though the evidence of PWs 5 and 7 is unanimous about the gold chain in M.O2 series being used by the deceased for a long period of time, there is no unanimity about the identity of the gold bangles (part of M.O2 series) or ear rings (M.O3 series). 27. In a case like the instant one, it is important that the Investigating Officer ascertains the nature of the gold ornaments Crl.Appeal Nos.1120 & 1121 of 2007 19 if any lost/thieved from the possession of the deceased. We note that there is nothing to indicate that either PW5 or PW7 was questioned by the Investigating Officer immediately after the crime to ascertain the precise nature of the ornaments that were lost/thieved from the possession of the deceased. We are looking for inspiration for the evidence of recovery and we have no hesitation to agree that PWs 5 and 7, before the recovery of the ornaments, had explained to the Investigating Officer the details of the ornaments lost/thieved. Such evidence would have considerably enhanced the worth and value of evidence of recovery effected under Section 27 long after the date of the alleged offence. 28. It will not be inapposite straightaway to note that PW1 or PW3, the local neighbours, were not even asked to identify M.Os 2 and 3 even at the stage of trial. PWs 1 and 3 normally should be persons who have acquaintance with the deceased and the want of inquisitiveness to ascertain from them the details of Crl.Appeal Nos.1120 & 1121 of 2007 20 the ornaments lost/thieved or the want of any attempt to get recovered articles identified by PWs 1 and 3 is certainly unsatisfactory. We do note that PWs 1, 3, 5 or 7 were not questioned specifically about the nature of the ornaments lost and a description of the articles lost/thieved was not ascertained from any of these witnesses prior to the recovery of the gold ornaments. A discerning mind cannot omit to note the significance or importance of want of serious efforts in that direction by the Investigating Officer. 29. The theft/murder occurred on the night of 03.11.2001. Investigation continued with no clue about the persons who could have committed the crime. It is at this juncture that the prosecution was able to accidentally tread on accused 1 and 2. It is the case of the prosecution that accused 1 and 2, one of whom (A1) was involved in a theft offence and another (A2), who was arrested under suspicious circumstances, happened to come into custody of PW16. PW16 was not investigating into this crime. Crl.Appeal Nos.1120 & 1121 of 2007 21 He is a police officer of a police station in the neighbouring district. In the course of investigation of different other crimes, he allegedly had accused 1 and 2 in his custody and when he questioned them, they came out with a confession statement totally unconnected with the cases which he was investigating. The learned counsel for the appellants contend that this theory of confession inherently deserves to be approached with great amount of care and caution. If the Investigating Officer had any clues about the involvement of the accused in this crime and they were grilled about their role in the commission of such crime, probably a voluntary confession by an accused unable to respond to the various questions posed might appear to be probable and natural. But here was a case where PW16 had no clue at all even about the registration of the crime in the instant case. He wants the court to believe that when he questioned both the accused unconnected with the investigation in this case they came out with confession statements about their Crl.Appeal Nos.1120 & 1121 of 2007 22 involvement in the instant crime. Truth can be stranger than fiction. But that certainly is not the yardstick with which a court would assess the probabilities in a case like the instant one. 30. When and how did accused 1 and 2 come into the custody of PW16? We shall advert to this aspect next. According to PW16, the 1st accused was arrested in another crime. He was in judicial custody. Then PW16 applied and got custody of the 1st accused for investigation in this case. We are unable to understand how PW16 could have got the 1st accused into his custody on 10.09.2002 for investigation in connection with “this case”. He was not investigating this case and therefore that version must have been explained. We find no such explanation coming forth from PW16. It is, of course, true that the accused did not also pointedly cross examine PW16 on this aspect. That inadequacy notwithstanding, we do not get a satisfactory explanation as to why and how PW16 obtained the custody of the 1st accused on 10.09.2002 for investigation into this case. The Crl.Appeal Nos.1120 & 1121 of 2007 23 order granting custody by the court is not produced. 31. The learned counsel for the appellants further point out that accused 1 and 2 have been in the custody of PW16 admittedly from 10.09.2002 to 17.09.2002. The orders by which the court gave custody to PW16 is not produced. Counsel argue that this long period of