& Ors Vs. State of Kerala  INSC 829 (18 November 1997)
NANAVATI, M. JAGANNADHA RAO
appellants four in number, were tried in the Court of the Additional Sessions
Judge, Parur, in Sessions Case No. 7 of 1981, for committing murders of Merli
and her two little children. The Sessions Court acquitted them but on an appeal
by the State the Kerala High Court set aside their acquittal and convicted them
under Section 120-B(1) and Section 302 read with Section 34 IPC. Accused No.2, Karthikeyan
was also convicted under Section 411 IPC. They have, therefore, filed this
appeal under Section 2(a) of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970.
and his brother Francis were doing business in partnership at Alwaye. They
first started a piece-goods business under the name `Rani Silk House' and then
another one named `Maharani Textiles'. In 1969, they started a third business
initially under the name `Rani Umbrella Mart' which was later on changed to `Rani
Cut Piece Centre'. Besides Tomy and Francis, Merli, (deceased) and Josephine
(PW-26) were the other partners. After the death of Francis in 1975, Ammini
(A-1) was inducted as a partner in the first two firms; but, she was not
allowed to join the third firm as Francis had overdrawn his share in the
capital of the firm.
was periodically paid certain amounts by Tomy for maintenance of herself and
her children, but she was not satisfied with that arrangement and often
expressed her resentment openly. Ammini was at times required to borrow money
from others and that is how she came in contact with Kartikeyan (A-2), who was
her neighbour. Gradually, their acquaintance developed into illicit intimacy.
In June, 1979 she fell ill and during the period of her hospitalisation A- 2
was often seen with her in the hospital and it was freely talked by the people
that they had developed illicit intimacy. On one occasion when Tomy had visited
the hospital he had also seen A-2 with her. So he had questioned A-1 about him
and told her that what she was doing was not proper. A-1 suspected that Tomy's
wife Merli had informed Tomy about her illicit relationship with A-2. As a
result of this incident the animosity of A-1 towards Tomy and his wife became
more intense and both of them were looked upon by A-1 as hr enemies. She
started believing that Tomy and his wife were the cause of all her ills and
that they were also an obstacle in her affair with A-2. Therefore, A-1 and A-2,
sometime between June 1979 and May, 1980, decided to ruin Tomy and his family.
They first tried to achieve their object by resorting to black magic. Those
attempts, however, remained ineffective. In May, 1980 A-1 had gone to Maharani
Textiles for getting cloth for a safari suit for her son.
the salesman was bout to cut the costly cloth selected by her, Tomy told him
not to give it but to give a cheaper variety. As a result of this incident A-1
felt humiliated and returned without taking any cloth. A-1, A-2 and Johny
(A-3), whose mother was the maid servant of A-1 and who was also often
rendering services to her, decided to do away with Tomy and his family members.
First attempt was made on 29.5.1980 when A-1 and A-3 had gone with an
insecticide `Dalf' of the house to Tomy but it failed. Thomas (A-4) had also by
that time come in contact with A-1. He also joined the conspiracy to kill Tomy
and the members of his family on being promised a payment of rupees on lakh.
Pursuant to that conspiracy A-4 procured insecticides known as Parataph & Eccalex
and the second attempt was made on 10.6.1980.
the mixture of those two insecticides after using Chloroform and making Merli
and children unconscious. That attempt failed as Josephine (PW-26) was found
present in Merlis house A-1, A-2 and A-4 then made a final decision to use
cyanide which is a more powerful poison. A-4 was able to procure some cyanide
from one Chinnappan (PW-27). As preplanned, on 23.6.1980 at about 7 P.M. A-1 first went to Tomy's house and started talking with
her. After sometime A- 3 and A-4 went there with a pretext that they wanted to
see A-1. A-4 requested Merli go get some water for him to drink.
she was bringing water A-3 and A-4 caught her from behind, applied pressure on
her neck, made her open her mouth and then forcibly put cyanide in her mouth.
She tried to resist that attempt by giving a bite on the hand of A-3 but she
was not successful. The poison had its effect and Merli died immediately. Then,
A-1 with the help of A-3 forcibly gave cyanide to Merli's two children. They
also died instantaneously. Ammini then left the house after removing a gold
chain of Merli from a cupboard. The other two accused, namely A-3 and A-4
remained behind waiting for Tomy to come; but as he did not come at the
expected time they also left. When Tomy came and saw what had happened he
screamed and that brought the neighbours there. Soon the Police was informed
about the incident. All the accused were then charge-sheeted and tried for the
offences punishable under Section 120-B and Section 201, 302, 452 all read with
Sections 34, 109 and 11 IPC. A-2 was separately charged for the offence
punishable under Section 411 IPC.
being no eye witness the prosecution relied upon the following circumstances to
prove its case:-
A-1 had sufficient motive to exterminate Tomy and his family.
A-1 along with A-2, who was the neighbour of A-1 and with whom she had
developed illicit intimacy, first tried to ruin the family of Tomy with the aid
of persons practising black magic and witch-craft.
First attempt by A-1, A-2 and A-3 to administer insecticide to merli and her
children on 29.5.1980.
Second attempt by A-1, A-2 and A-3 to administer a stronger insecticide to Merli
and her children on 10.6.1980.
A-4 jointed the conspiracy and procured cyanide from a goldsmith through PW-27.
Testing of effectiveness of that cyanide by A-1 and A-3 on a cat, which died
and whose body was buried by A-3 in the compound of A-1.
A-1 seen going to the house of Tomy on 23.6.1980 at about 6.30 P.M. and falsely telling persons, whom she met on the
way, that she was going to Tharakan's Hospital.
A-3 and A-4 were also seen following A-1 and going towards the house of Tomy.
A-1 was seen coming out of the house at about 7.30 P.M.
A-3 and A-4 were seen together near the place of occurrence at about 8.30 P.M. and thereafter at another place not far away. A-2
was also seen near that place at about 9.00 P.M.
A-3 and A-4's disclosure to the doctor who examined them as to how they had
received injuries on their hands.
Discovery by A-2 of a gold chain belonging to the deceased.
Recovery of empty bottles of parataph and eccalex on the information given by
Discovery by A-2 of a mixture of insecticide purchased earlier for killing the
Discovery by A-4 of a bottle containing cyanide.
the above circumstances the prosecution also relied upon the confession made by
A-4 before the judicial Magistrate and the medical evidence, which proved that
the deaths were the result of poisoning by cyanide.
Trial Court held that Merli and her children had died as a result of cyanide
poisoning sometime between 7.30 p.m. and 9 p.m. on 23.6.1980. It ruled out the possibility of Merli and her
sons' having committed suicide by taking poison. But it did not believe the
prosecution evidence regarding involvement of the accused and also the
confession made by A-4. It, therefore, acquitted the accused. We are not
stating here the reasons given by the trial court for disbelieving the
prosecution evidence as we will be referring to them a little later.
State challenged the acquittal before the High Court. The High Court found that
most of the reasons given by the trial court for rejecting the prosecution
evidence were grossly unreasonable and some of them were almost perverse. After
re-appreciating the evidence it came to a different conclusion as regards the
guilt of the accused.
High Court accepted the evidence of Tomy (PW-2) and his elder brother Paul
(PW-15) and held that A-1 was on inimical terms with Tomy and his wife and that
she had sufficient motive to finish Tomy and his family members. The trial
Court had also accepted that evidence and held that A- 1 had strong ill-feeling
against PW-2 and his wife, Merli.
High Court also agreed with t he finding of the trial Court that Merli and her
children had died as a result of cyanide poisoning sometime between 7.30 p.m. and 9.00 p.m.
23.6.1980 and that it was not a case of suicide but cyanide was administered to
them by an external agency. The High Court also confirmed the finding recorded
by the trial Court relying upon the evidence of PWs 41, 43, 44 and M.Os. 27.
28, 40 and 41, that A-1 and A-2 had resorted to black magic and witch craft for
ruining Tomy and his family. The High Court believing the evidence of PWs 2,
15, 17, 40 and 41 confirmed the finding that Ellyamma, mother of A-3 was
employed by A-1 as a maid-servant and that A-3 was also occasionally rendering
services to her.
High Court believed the evidence of PWs 15 and 16 from whose shops A-3 had
purchased insecticide `Dalft' on 16.5.1980 as they were found to be independent
witnesses because they had no reason either to oblige Tomy or the prosecution
or to depose falsely against A-3. The trial Court had rejected their evidence.
PW-15 was disbelieved on the ground that he had not issued a bill and the
explanation given by him that he allowed A-3 to go away without taking a bill
as he was acquainted with him, was not believable. The trial Court rejected the
evidence of PW-16 on the ground that the copy of the bill produced by him
appears to have been prepared subsequently. Moreover, `Dalf' was neither used
by nor recovered from any of the accused. It as been submitted by the learned
counsel for the appellants that the reasons given by the trial court for
rejecting the evidence of these witnesss were quite proper and, therefore, the
High Court should not have reverse the findings. In our opinion the reasons
given by the trial court were not at all proper.
evidence of PW-15 could not have been discarded merely because the name of A-3
was not mentioned in the bill and that PW-95, the Investigating Officer, had
not made further enquiries with respect to that bill. What the trial court
failed to appreciate was that there was no requirement of mentioning name of
the purchaser of the insecticide `dalf' and that there was no reason for the
Investigating Officer to make further enquiries with respect to the said bill.
The trial court had held that the bill prepared by PW-16 appears to have been
prepared subsequently because in the 2 earlier bills the date mentioned was
17.5.1980. The trial court failed to appreciate that this witness was
approached by the police on 4.7.1980 for his statement. The bill was already in
existence then. It was, nobody's case that it was prepared on or after
4.7.1980. As regards the first attempt made on the evening of 29.5.1980 by him
and A-1 to administer that insecticide to Merli and her children, the
prosecution had examined PW-38 who was an employee in one of the shops to Tomy
and was sent by Tomy to his house for some work. He deposed that when he
reached there at about 7.15
p.m. he saw one slim
lady and one black that fat chap sitting in the house. He was told by Merli
that the lady was her sister-in- law and the other person was Johny (A-3). The
evidence of this witness was not believed by the trial on the ground that he
did not identify A-1 and A-3 in the court as the persons who were seen by him
sitting in Tomy's house though he had identified them at the test
identification parade held for that purpose. The High Court accepted the
evidence of PW-38 as there was nothing in his cross examination which could
have created any doubt regarding truthfulness of his version. Merely because he
did not specifically identify A-3 in the court his evidence could not have been
rejected. It was not that he was asked it identify A-3 in the court and he
failed to identify him.
even the defence had proceeded on the basis that A-3 was identified in the
court as pointed out by the High Court. Nothing substantial could be urged by
the learned counsel for the appellant to disbelieve the evidence of this
trial reluctantly accepted the evidence of PWs 20 and 21, as they were independent
witnesses and nothing could be alleged against them by the defence. It,
therefore, held that their evidence established that A-4 had purchased one
bottle of parataph and one bottle of eccalex on 7.6.1980 from the shop of
PW-20. It, however, held that "this circumstance did not constitute an
incriminating circumstance because as deposed by these witnesses, he had come
to their shop earlier and purchased insecticides.
reason given by the trial court for taking that view was that there is no
evidence adduced to show that parataph and eccalex purchased by A-4 were used
by him or any other accused for commission of this offence". The High
Court disagreed with this view and observed that the trial court had failed to
appreciate that this circumstance was relied upon as a lin in the chain and to
prove the preparations that were jointly made by the accused. In our opinion,
the High Court rightly held that its importance and effect were required to be
considered along with other circumstances, including the false denial by A-4.
regards the incident of 10.6.1980 the prosecution had relied upon the evidence
of Josephine PW-26, sister of Tomy. According to her she had come to Alwaye
from Madras on 10.6.1980 as she had some work.
In the evening when she and Merli were at home, A-1 had come there. Seeing her
there A-1 was surprised. Soon after entering the house she had made a telephone
call to someone. She left the house after about 15 minutes. When she and Merli
had stepped out of the house to see off A-1 she had seen two person near the
gate. One of them uttered the name of Merli as if he was an acquaintance.
had then informed her that he was Johny (A-3). the trial court did not believe
PW-26 for the reason that her version was artificial and that had not
identified A-3 in the court as the person whom she had seen on that day though
she had identified him at the identification parade. The trial court did not
attach any importance to the identification of A-3 at the test identification
parade as it found that it was not satisfactorily held and also because by that
time photographs of all the accused were published in newspapers. To prove this
incident of 10.6.1980 and involvement of A-3 and A-4 the prosecution had also
relied upon the recovery of MOs, 31, 32 and 44. MOs 31 and 32, being bottles of
parataph and eccalex, were recovered at the instance of A-3 from the courtyard
of house of A-3 on 3.7.1980. the trial court did not attach any importance to
it on the ground that it was not established that they were the same bottles as
were purchased by A-4 from the shop of PW-20 on 7.6.1980. MO 44 was recovered
at the instance of A-
was whisky bottle and it contained mixture of Parataph and eccalex as stated in
the certificate issued by the Joint Director of the Forensic Science
Laboratory. The trial court rejected this evidence as the bottle was recovered
from an open space accessible to all and that even though only 100 Ml. Of parataph
and 100 ml. Of eccalex were purchased, the mixture that was recovered from the
bottle was 220 mls. The trial court also held that the prosecution had failed
to establish that the said bottle contained mixture of parataph and eccalex as
the certificate was signed by the Joint Director of Forensic Science
Laboratory, and not by the Director and, therefore, it was not admissible under
Section 293(4) of the Cr.P.C.
High Court after referring to the cross-examination of PWs 26 and 38 held that
even the defence had proceeded on the basis that the accused were correctly
identified in the court also, and, therefore, the sessions court was wrong in
discarding their evidence. As regards the recovery of MOs 31 and 32, the High
Court held that PW-20 had correctly identified those bottles by the caps of
those bottles. The High Court further held that though MO 44 was recovered from
an open space, i.e., from the gutter nearby the office of A- 2, but as it was
proved that it contained mixture of parataph and eccalex, this recovery
evidence deserved to be believed. The sessions court was of the view that these
circumstances even if believed were not incriminating circumstances. The High
Court was of the view that these circumstances, namely, purchasing of parataph
and eccalex by A-3, recovery of empty bottles from the courtyard of the house
of A-1 at the instance of A-4 and recovery of MO 44 containing mixture of parataph
and eccalex at the instance of A-2, did indicate a joint attempt by the four
learned counsel for the appellants could not seriously challenge of Josephine
(PW-26) but submitted that the evidence regarding recovery of MOs, 31, 32 and
44 should not have been accepted by the High Court. It is true that MOs 31 and
32 did not have any label on them but PW-20 was able to identify them by their
caps being familiar with them. The High Court was, therefore, right in holding
that the prosecution was able to establish that the bottles which were
discovered by A-3 from the court-yard of the house of A-1 were the bottles of parataph
and eccalex. A-3's knowledge about the concealment of those bottles was not
innocent. When facts, which have a bearing on the guilt of the accused, are
established, yet denied by the accused they assume importance. This aspect was
totally missed by the trial court. similarly, MO 44, though recovered from a
place accessible to all, was found from under the water and was thus not
visible to all. It was A-2, who had taken it out of water. Moreover the
contents of the bottle turned out to be the mixture of parataph and eccalex as
stated by A-2. The statement made by A-2 before recovering the bottle thus
stood corroborated. The trial court was also wrong in holding with respect to
the contents of MO-44 was not admissible in evidence as it was signed by its
Joint Director and not by the Director. On true construction of Section 293 (4)
Cr.P.C. it has to be held that Joint Director is comprehended by the expression
`Director'. The amendment made in clause (e) of Section 293(4) now indicates
that clearly. If the Joint Director was not comprehended within the expression
Director then the Legislature would have certainly named him while amending the
clause and providing that Section 293 applied to the Deputy Director or
Assistant Director of a Central Forensic Science Laboratory or a State Forensic
Science Laboratory. A Joint Director is a higher officer than a Deputy Director
or an Assistant Director and, therefore, it would be unreasonable to hold that
a report signed by Joint Director is not admissible in evidence though a report
signed by Deputy Director or Assistant Director is now admissible. In our
opinion the High Court was right in holding that the report made by the Joint
Director was admissible in evidence and that it deserved to be relied upon.
prove that A-4 had procured potassium cyanide the prosecution had examined Chinnappan
(PW-27). This witness has stated that about a couple of weeks prior to the
death of Merli and her children, while he was waling along with A- 4 on a road,
A-4 had told him that he was in need of some effective poison to kill stray
dogs which were destroying his poultry. He was first hesitant to give potassium
cyanide to A-4 but on further persuasion he gave a small quantity of it in a
bottle of Vicks. The prosecution had also examined PW-23, who was working with
PW-27 in the same jewellery shop to establish that about 4 or 5 days before the
death of Merli and her children he had seen PW-27 and A- 4 together discussing
something secretly. The prosecution had also examined PW-24 to prove that A-4
was seen in the house of PW-27 a few days before the death of Merli. The
evidence of PW-27 was disbelieved by the sessions court on the ground that he
did not have a licence to possess cyanide and the Investigating Officer had not
made any attempt to find out the source. The High Court held that these reasons
were not at all sufficient for discarding his evidence. PW-27 was working in a jewellery
shop and the shop owner did have a licence to posses potassium cyanide.
PW-27 had stated that he had obtained it from one Narayanan, another goldsmith
and the Investigating Office could not question him as he had died before he
could have been questioned by the Investigating Officer. One more reason was
given by the trial court for disbelieving the evidence of PW-27 was that he had
not disclosed the fact of giving potassium cyanide to A-4 to any other person.
The High Court observed that this was not at all a good ground for rejecting
his evidence. In our opinion, the High Court was right in observing that this
important piece of evidence was very lightly brushed aside by the trial court
on flimsy ground. The circumstance under which PW-27 had obtained potassium
cyanide and given it to A-4 was such that he would not have liked to disclose
that fact to anyone. As rightly pointed out by the High Court PW-27 being a
goldsmith, it was quite likely that he was able to obtain potassium cyanide
even though he did not have a licence to possess it, as cyanide is commonly
used used by goldsmith for electroplating gold ornaments.
order to prove that Merli and her children were alive till 7.00 p.m. the prosecution had examined PW-32, a boy aged 14
years, who had gone to Tomy's house to give a packet of surf at 7.00 p.m. The evidence of this witness was not at all
challenged. The trial court did not record any finding with respect to his
evidence. The High Court accepted it and held that till 7.00 p.m. on 23.6.1980, Merli and her children were alive.
prosecution had also led evidence to prove the movements of A-1, A-3 and A-4
between 6.30 p.m. and 8.00 p.m. on that day. Ennamma (PW-3), who was residing just opposite
to A-1's house, stated that she had seen A-1' coming out of her house at about 6.30 p.m. and proceeding towards the house of Tomy. She
further stated that her attention was drawn towards A-1 because it was unusual
for A-1 to move out of her house at such a late hour. She has also stated that
a few minutes later she had seen A-3 and A- 4 coming out of the house A-1 and
going towards Tomy's house. The trial court did not disbelieve the evidence of
this witness but held that what she had stated did not amount to an
incriminating circumstance and therefore, no weight could be attached to it.
Only omission brought out in her cross-examination was that she had not give
the name of A-4 in her police statement but had described i as "Duck
Youngster". The High Court held that her evidence deserved to be believed
and it did establish that A-1, and A-3 and A- 4 were see together near the
house of A-1 about and hour before the incident. PW-4 had met A-1 sometime
thereafter on the road and inquired from her as to where she was going. A- 1
had told her that she was going to Tharakan's Hospital the prosecution had
examined Rosy (PW-11), mother of Raju. She categorically stated that A-1 had
not come to see Raju and she had not noticed her in the hospital. Her evidence
was discarded by the trial court on the ground that it was quite likely that
she might not have remained present near Raju all the time and therefore, might
not have noticed A-1. The prosecution had also examined PW-47 whose two
children were also admitted in the hospital. He has stated that his relations
with A-2 were quite intimate and, therefore if she had come to the hospital she
would not have gone away without meeting him and enquiring about the health of
his two sons. He was present in the hospital from 6.00 p.m. to 9.00
p.m. on that day and,
therefore, he would have certainly noticed the presence of A-1. the evidence of
this witness was not disbelieved by the trial court but it held that it did not
falsify the explanation of A-1 that she had in fact gone to the hospital to see
Raju. The High Court held that this was not a reasonable view and the trial
court ought to have appreciated that the explanation given by A-1 was false and
thus this wan an incriminatory circumstance.
also of the view that the trial court had completely misunderstood the
significance of the evidence of PWs-11 and
The evidence discloses that Raju was serious. Therefore, his mother was bounded
to be by his side. It was, therefore, not likely that when A-1 had gone to see Raju,
his mother was not by his side and, therefore, she had not noticed the presence
of A-1 in the hospital. It was equally unlikely that if A-1 had really gone to
the hospital, she would have returned without meeting PW-47 and inquiring about
the health of his two sons. The reason given by the trial court for holding
that the evidence of PWs-11 and 47 did not falsify the explanation of A-1 was
thus not sustainable.
High Court was, therefore, right in placing reliance upon the evidence of these
two witness and holding that the explanation given by A-1 was false.
movements of A-1, A-3 and A-4 between 7.00 p.m. and 7.30 p.m. were also noticed by other witnesss.
Evidence of some of them was not disbelieved by the trial court.
of others was discarded on flimsy grounds as pointed out by the High Court. We
do not think it necessary to refer to the evidence of all those witnesses and
it would be sufficient to state that the said evidence was rightly believed by
the High Court. We will only refer to the evidence of Joseph (PW-8) who was, at
that time, serving as an officer in the Life Insurance Corporation. He has
deposed that at about 7.35
p.m., while he was
passing by the house of Tomy, he had sen one woman coming out of his house. He
first thought that she was Merli and, therefore, looked at her to have a talk
with her. He at once noticed that she was not Merli so without talking with her
he proceeded further after passing by her side. He has further stated that on
the next day he had visited Tomy's house to attend the funeral and at that
time, inside the room where the dead bodies were laid, he had seen in the
woman, whom he had seen on the previous night. He therefore, enquired from Paul
Dominic (PW-46) and PW-27 as to who she was and they had told him that she was Ammini,
widow of Francis. He informed both of them that he had seen her coming out of Tomy's
house on the previous evening. This revelation by him had raised a flutter
among the mourners and it had finally Tomy. Tomy has stated that he had
informed his brother Paul (PW-50) that he had come to know that A-1 had visited
his house at about 7.30 p.m. on the day of the incident. PW-50 has stated that
he had asked Ammini about her said visit but she had flatly denied it. The
trial court disbelieved the evidence of this independent witness PW-8. One
reason given was that while Tomy informed his brother Paul that Lucy, Sheela
and two boys had see A-1 going and coming out of his house he had not mentioned
the name of PW-8 as one of the persons who had also informed him about A-1's
visit. The High Court has strongly criticised the learned Sessions Judge for
discarding the evidence of this witness. It pointed out that PW-8 had not
stated that he had told Tomy that he had seen Ammini waling near about his
house at the time of incident.
while informing his brother he had only generally stated that Lucy Sheela and
two boys had told him about that. Since he was not directly informed by PW-8 it
is likely that he had either thought it not fit or in view of his mental
condition, had forgotten to mention the name of PW-8. Another ground given by
the trial court for rejecting his evidence was that the woman seen by him was
wearing spectacles but A-1 was not seen wearing spectacles during the whole
trial and that no attempt was made by the Investigating Officer to trace the
spectacles of A-1. The High Court held that these reasons were perverse. It
observed that it was absolutely unnecessary for the Investigating Officer to
search for her spectacles.
the evidence of PW-46, PW-47 and PW-50 the eldest brother-in-law of A-1 proved
that A-1 was often wearing spectacles. The High Court after considering the
reasons for rejecting the evidence of PW-8 by the trial court observed:
Judge was groping for some reason to reject the valuable testimony of PW-8, and
when he failed to trace out any good reason, he traversed through preposterous
ideas for rejecting his testimony". On re-appreciation of his evidence the
High Court found that it had a ring of truth in it and it established beyond
and doubt that A-1 was seen coming out of the house of Tomy at about 7.45 p.m.
also refer to the evidence of Aliamma (PW-15) who has stated that at about 7.30
p.m. while she and one Kunjamma were returning from the hospital and were
passing by the house to Tomy they had a cry of a child coming from the house to
Tomy. As no further cry was heard and it was drizzling they did not stop and
proceeded further. This witness was not at all cross-examined by the defence.
Her evidence was not disbelieved by the trial court but no importance was
attached to it. The High Court rightly considered this as a relevant
circumstance as it proved that at about 7.30 p.m. something had happened in the
house of Tomy which had made a child cry loudly. The High Court held that the
evidence of this witness together with the other evidence regarding movements
of the accused and the evidence of PW-8 established that A-1 had gone to the
House of Tomy some time after 7.00 p.m., that Merli and her children were
killed at about 7.30 p.m. and that A-1 was found leaving that house at about
7.35 p.m. As regards the subsequent movements of the A-1, A-3 and A-4 the
prosecution had led the evidence of PWs-25, 28 29 and 30. Their evidence was
also disbelieved by the trial court on flimsy grounds. The High Court has
pointed out how the said reasons can not be considered as proper and
sufficient. In therefore, held that even their evidence deserved to be
next circumstances relied upon by the prosecution was that while administering
cyanide to Merli, A-3 and A-4 had received injuries. A-3 was arrested on
2.7.1980 and he was taken to Dr. Abraham (PW-60) for his medical examination.
The doctor had found three injuries on the fingers of his right hand. When the
doctor had asked him how he had received those injuries, he had stated that
"these small injuries were caused by biting when I closed Merli's mouth to
silence her at 7.30 p.m. on Monday before last".
evidence was disbelieved by the trial court on the ground that the certificate
issued by the doctor was on plain piece of paper and not on the printed form,
that no serial number was mentioned in that certificate and that when finger
prints of third accused were taken by the police on 3.7.1980 the Investigating
Officer had seen only scars of the wound which indicated that the wounds had
healed up earlier. A-4 was arrested on 5.7.1980 and when he was taken to Dr. Vasant
Kumari (PW-64) for medical examination. she had noticed that his two injuries
were in the healing process. On being asked about the injuries A-4 had told her
that "my left elbow and the outer part of the right hand were injuries
while taking Merli to the Kitchen, holding her from behind with left hand,
inside Merli's house at about 7.30 p.m. on Monday, 26.3.1980". The trial
court rejected her evidence on the ground that the certificate issued by her
was also on a plain piece of paper and an endorsement made therein was in
different ink. The High Court considered both the grounds as improper and
insufficient. It observed that it was well known then that printed form were in
short supply in Government hospitals in the district of Ernakulam.
certificates were issued by the doctors, who were attached to Government
hospitals at Alwaye and Perumbavoor, bot of which were situated in the same
district of Ernakulam. The High Court further found that there was nothing to
show that the doctors had any reason to prepare false certificates. The High
Court, therefore, held that the evidence of the doctors and the certificates
issued by them were true. The High Court also held that what A-3 and A-4 told
the doctors amounted to an admission. In fact the trial court had also held
that they being admissions were not hit by any provision of the Evidence Act.
important circumstance disbelieved by the trial court was the find of finger
prints of A-3 on one of the two glasses (MOs 1 and 2) seized from Tomy's house
on 24.6.1980 under Mahazer (Ex.57). Finger prints found on those two glasses
were compared with the admitted finger prints of A-3 and it was found that the
finger prints found on one glass tallied with the finger prints of A-3. The
trial court disbelieved this important evidence on the ground that the earlier
photographs of those impressions were not clear enough to enable the expert to
come to any definite conclusion and, therefore, it was doubtful whether the
subsequent photographs were of the original finger prints.
trial court took his view as it found that the prosecution had not explained
how on the subsequent occasion it was possible for the photographer to
redevelop those impressions in a better manner and have better photographs.
trial court was also of the view that even though the photographs were taken on
the second occasion in presence of the Judicial Magistrate, not much value
could be given to them as the glasses had remained in the custody of the
Investigating Officer and, therefore, there was a possibility of introducing
fresh finger prints of A-3 on those glasses. The trial court also doubted their
genuineness on the ground that when photographs were taken the Judicial
Magistrate had not taken care to see whether the camera had any lens. The High
Court has severely criticised the trial court for taking such a view and in our
opinion rightly. It was not even suggested by the defence that A-3's finger
prints were again taken by the Investigating Officer on those glasses. The
finding of the trial court was, therefore, speculative in nature. In absence of
any effective cross-examination of the photographer his evidence that he was
able to take better photographs on the second occasion not have been
disbelieved by the trial court. It was also improper to brush aside this
clinching evidence on the ground that the confession of A-4 does not mention
that A-3 had again taken water from the glass that was found in the kitchen. In
our opinion, the High Court was right in relying upon this evidence regarding
which nothing else could be urged. That evidence established the presence of
A-3 in Tomy's House.
prove the complicity of A-2 the prosecution had relied upon the recovery of
gold chain (MO-9) belonging to the deceased and the bottle (MO-44) containing
mixture of parataph and eccalex recovered on the basis of information given by
him. It has been held proved that the gold chain belonged to the deceased. The
trial court, however, held that it was not proved that A-2 had concealed the
same in the store room of Sub-Divisional Office of the Telegraph Department,
where he was working. The trial court placing reliance upon the evidence of the
officer watchman (PW-88) and the defence witness DW-3 came to the conclusion
that the chain appeared to have been planted there by the police. The trial
court also held that the whole story regarding removal of the chain and it
being given by A-1 to A-2 and A-2 concealing it in the store room was "too
shedy to be worthy of any judicial credit". The High Court on close
scrutiny of their evidence found that the watchman and D-3 being the Co-
employees had fabricated evidence regarding A-2's leave to help A-2 and had
falsely deposed that on 27.6.1980 some policemen accompanied by A-2 had
approached the watchman and told him to open to store room and after going
inside had left it after some time. The High Court believed the prosecution
evidence and held that it has successfully established that the gold chain
(MO-8) was concealed by A-2 below a bundle of wire in the store room where he
was working and that it was recovered on the basis of the statement made by him
before the panch witnesses. We have already pointed out earlier why the trial
court had not believed the recovery of bottle containing mixture of parataph
and eccalex and why the High Court has held that the reasons given by the trial
court are improper.
confession made by A-4 before the Judicial Magistrate was discarded by the
trial court as it found it to be not voluntary and true. The reasons given by
it for taking view were - (1) while A-4 was remanded to judicial custody by the
Judicial Magistrate on 7.7.1980 the Magistrate had thought it fit to give a
direction that he should not be kept in the sub-jail at Alwaye as the three
co-accused were in that sub-jail and this indicated that if he had been allowed
to remain the other accused he would not have made the confession. (2) The
confession was retracted soon after A-4 was released on bail. (3) While
retracting the confession and also during his examination under section 313 Cr.P.C.
A-4 had stated that he was made to take an oath to make a confession and he was
told by the police that if he made a confession he would be protected. (4) The
Judicial Magistrate had not asked him whether he was pressurised by the police
to make the confession. (5) The Judicial Magistrate had started recording the
confession soon after A-4 was produced before him on 7.7.1980. (6) The Judicial
Magistrate had not recorded separate reasons, apart from stating so in the
memorandum, for believing that A-4 was making the confession voluntarily. (7)
The confession is very long and runs into as many as 20 pages. (8) A-4 had
disowned the first bail application which was made on his behalf after 7th .
According to the trial court all these circumstances indicated that A-4 made
the confession while he was in the state of fear and mental collapse and that
even after he had made the confession he was under pressure from the police
while in custody. The trial court had held the confession as not true as it
found that there were some discrepancies between the confession as recorded by
the Judicial Magistrate and what was recorded with respect to it by the
Investigating Officer in his case diary. The following inconsistencies were
noted by the trial court:-
the confession A-4 has stated that the first attempt was made on 9.6.1980 where
as in the case diary it was mentioned that the first attempt was made initially
on 9th and then on 10th.
reference is made to the chain of Merli in the confession Exh. P-40 though that
fact is referred to in the case diary.
name of Chinnappan P-27 is not mentioned in Exh.P- 40 but it is mentioned in
the case diary.
Though breaking of a glass in the hand of the Merli is mentioned in the case
diary, it is not so stated in the confession.
to the trial court these omissions indicated that A-4 was forced and tutored to
make the confession.
High Court held that the trial court had looked at the confession with
suspicion. The High Court also held that in comparing the confession with the
record of it in the case diary the trial court had committed an illegality and
the finding recorded by it, therefore, stood vitiated. We are of the opinion
that the High Court was right in taking this view. If while remanding A-4 to
judicial custody the Judicial Magistrate thought it fit to keep him away from
the police and the co-accused, it is difficult to appreciate how such a
direction can be regarded as a circumstance indicating that confession was not
voluntary. So also it is difficult to appreciate how from the circumstance that
the Judicial Magistrate had started recording the confession within a short
time after A-4 was produced before him on 7th an inference could have been
drawn that he was not making the confession voluntary. Merely because A-4 while
retracting his confession and during his examination under section 313 Cr.P.C.
had alleged that he had made the confession under pressure and force from the
police, it was not proper for the trial court to conclude that the confession
was not voluntarily made. The trial court ought to have appreciated that the
confession was retracted four days after the accused was released on bail. No
such complaint was made by him while he was in judicial custody from 7th till
he was released on bail after about a fortnight. Except the bare allegation
there was no material on record to indicate that police had pressurised A-4 or
had forced him to make the confession. The trial court was not justified in
considering the length of the confession as a suspicious circumstance. The
confession was a complete record of the steps taken by the Magistrate, the
question put to the accused and the answers given by him. The High Court has
also pointed out how other reason given by the trial court are also improper.
While agreeing with the trial court that the Judicial Magistrate had failed to
inquire from A-4 as to whether he was promised that he would be made an
approver if he made the confession, the High Court held that this omission was
of no significance as A-4 was clearly warned that if he made a confession it
was likely to be used against him. The High Court was also right in holding
that the trial court in relying extensively on the case diary had committed an
illegality. The omission found by the trial court as a result of that illegal
effort were minor and did not justify the conclusion that the confession was
not voluntarily made. In the absence of any requirement that separate reasons
were required to be recorded for believing that the confession was made
voluntarily it was not proper for the trial court to doubt its genuineness on
the ground that the reasons were not recorded separately though the
satisfaction was recorded in the memorandum. The High Court was therefore right
in placing reliance upon the confession made by A-4.
trial court had further held that even if the confession was regarded as
voluntary and true it could be used only against A-4 and not against other
accused. The High Court found the trial court wrong on this point in view of
Section 10 of the Evidence Act which provides that where there is reasonable
ground to believe that two or more persons have conspired together to commit
and offence, anything said, done or written by any one of such persons in reference
to their common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against each of the
persons believed to be so conspiring, as well as for the purpose of providing
the existence of the conspiracy as for the purpose of showing that any such
person was a party to it. The High Court held as there was reasonable ground to
believe that Ammini and other accused had conspired together and, therefore the
confession made by A-4 could be used against other accused also.
re-appreciation of the evidence the High Court held that most of the
circumstances relied upon by the prosecution were proved beyond reasonable
doubt, that they formed a complete chain and that in absence of any valid
explanation by the accused they were sufficient to lead to a conclusion that
all the four accused had entered into a criminal conspiracy to murder Merli and
her children and did murder them between 7.00 p.m. and 7.45 p.m. on 23.6.1980.
therefore, allowed the appeal, set aside the acquittal of the accused and
sentenced them to suffer imprisonment for life.
contentions which were urged on behalf of accused before the High Court were
urged before us. We agree with the reasons by the High Court for ejecting them.
Other reasons have been stated by us earlier while point out how the view taken
by the trial court regarding each circumstance was not proper. The evidence
regarding the movements of A-1, A-3 and A-4 between 6 and 7.00 p.m. near Tomy's house, the find of finger prints of A-3
on one of the glasses seized from the house of Tomy and the confession of A-4
together with other circumstances stated above establish the guilt of the
accused beyond reasonable doubt.
do not find any good reason to differ from the view taken by the High Court,
this appeal is dismissed.