M.A.Antony @ Antappan vs State Of Kerala

M.A. Antony @ Antappan ...Appellant

versus

State of Kerala ...Respondent

JUDGMENT

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:

2

On the intervening night of 6th and 7th 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.

3 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

4 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

5 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

6 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.

7

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:

8

(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

9 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

10 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

11 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

12 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

13 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

14 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

15 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

16 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.

17

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

18 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

19 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.

20 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:

"On 6th 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

21 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

22 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

10th January 2001. He had also tried to arrange for loan as per the statement

of I'W-19. She mentions the amount which he could arrange by 5 th January

23 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.

24

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

25

(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.

26

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

27 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

28

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

29 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

30 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

31 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.

32 ..........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (LOKESHWAR SINGH PANTA)

New Delhi, April 22, 2009

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