RETNAKARAN Vs. STATE

JUDGEMENT

(1.) ACCUSED 1 and 2 are the appellants. The 1st accused was convicted under Ss. 364 and 302 read with S. 114 IPC and was sentenced to transportation for life and to a fine of Rs. 50 under S. 302/114 and to rigorous imprisonment for seven years and to a fine of Rs. 25 under S. 364 IPC. The sentences were to run concurrently. The 2nd accused was convicted under Ss. 302 and 364 read with S. 114 IPC and sentenced to transportation for life and to a fine of Rs. 50 under S. 302 IPC, and to undergo rigorous imprisonment for five years and to a fine of Rs. 25 under S. 364 read with S. 114 IPC. These sentences also were to run concurrently.

(2.) THE prosecution case against the two accused was as follows:- Sumathi, the unmarried daughter of PW. 1, was seduced by the 1st accused who was a neighbour of hers and the son of a rich man of the locality. As a result of this she got pregnant. THE 1st accused with the help of the 2nd accused, a neighbour and companion, attempted to procurean abortion. But this failed. THE 1st accused had given Sumathi all sorts of hopes and promised to accept her as his wife. But when the attempt to bring about the abortion failed he began to back out. By Makaram 1128, Sumathi had advanced six months in pregnancy and this fact began to gain currency in the locality. Sumathi herself mentioned this to some of her friends and neighbours and also the fact that the 1st accused was responsible for the same. She also stated that if the 1st accused refused to accept her as his wife she would go to his house and commit suicide by hanging. THE news that Sumathi was pregnant came to the notice of her father PW. 1. Though Sumathi had denied this to her mother, the parents were able to ascertain the fact through Sumathi's friends, particularly PW. 5, who was her uncle's daughter. Out of shame PW. 1 left the house and this aggravated the feelings of Sumathi. THE 1st accused also was absent from the locality as he had arranged to stage a drama in a place called Thittuvila a few miles distant from his house. When the 1st accused was not to be seen for a number of days Sumathi began to enquire about his whereabouts. She also told a neighbour pw. 10 who was an employee in the shop conducted by PW. 11 that she would like to see the 1st accused. PW. 10 mentioned this to PW. 11. THE shop of PW. 11 was near the Karottu junction on the M. C. Road. Sumathi's house was about a mile to the east of that junction. When the 1st accused returned from Thittuvila, he came to know of the developments and also of Sumathi's talk with PW. 10. On 12. 6. 1128 corresponding to 25th January 1953, the 1st accused met Sumathi on his way to karottu junction. He consoled her and promised to take her to a separate house which he had arranged for her stay. This was a deliberate misrepresentation made to decoy her to a distant and secret place for the purpose of putting an end to her life. On the 27th January the 1st accused again met Sumathi and asked her to be ready to go to her new house and wait for him for the purpose at the secret place near her house. Accordingly, she left her house in the evening saying that she was going to her mother's elder sisters house. She waited for the 1st accused at the appointed place. At about 8 PM accused 1 and 2 came and took her to the forest reserve near the place called Mylamoodu (ssaeagsv) and murdered her there. Mylamoodu is 101/2 miles away from Karottu junction and 21/4 miles away from Palode. THEre is a road joining Karottu junction and Palode, and Kallara and Pangode are important places on the way. From Pangode to Palode is the forest reserve on either side of the road. At mylamoodu there is a bridge and near that a foot-path that goes into the interior of the forest. THEy took her along the footpath to a distance of about 100 feet and from there to a spot about 40 feet to the south east. When they reached the spot Sumathi's hands were tied behind her with her upper cloth. THE 1st accused then throtled her and she fell down. He kept her in that position for some time by pressing his hands on her neck; but her breathing did not stop. It is the prosecution case that the 1st accused then got up and asked the 2nd accused to cut her neck with the chopper M. O. No. 11 which they had brought with them. THE 2nd accused cut her neck with it and killed her. When the 2nd accused was inflicting the cut the 1st accused was keeping her neck in position by pressing her hair firmly under his feet. After murdering her the chopper was thrown into the forest reserve. THEy left the place immediately and hurried back to their homes as there was not much time for day-break. THE occurrence took place during the early hours of 28th January 1953. THE dead body remained there till the morning of the 30th when PW. 27 a Kanikkaran saw the dead body and informed PW. 20 the Forest Watcher about it. THE Watcher prepared Ext. M, report and sent it to the Range Officer who forwarded it to PW. 36 the Sub-Inspector of Police, Nedumangad. He got the report at about 5 p. m. that day at the Palode out-post where he had gone to investigate another case. He at once proceeded to the spot, but being too late to conduct the inquest, he returned after posting two constables to watch the dead body. THE inquest was held on the dead body the next day. Ext. K is the report. As the body was then in a decomposed state the postmortem examination was conducted at the spot by PW. 33 the medical officer who issued Ext. Y certificate. THE body was identified even at the time of the inquest. THE police sent Ext. AA first information report the same day. Though the first accused was suspected by PW. 1 as the person responsible for sumathi's death, the suspicion was not confirmed at the time the police sent ext. AA first information report that day. On further enquiry the next day the suspicion was confirmed and it came out that accused 1 and 2 caused the death of Sumathi. Ext. AE (1) report was accordingly sent to the Magistrate on 1. 2. 1953. On 31. 1. 1953, after inquest, Sumathi's house was searched and Ext. B letter written by her was recovered by the police. Ext. D was the letter recovered by the police from the house of the 1st accused during search on 1. 2. 1953. THEy also recovered M. O. No. 1 torch light which the 1st accused was said to have taken with him while going to the reserve forest. Both the accused were absconding. THE 2nd accused was arrested only on the 17th February near killimanoor and the 1st accused on 18. 2. 1953 at an estate belonging to his father in Vamanapuram. As both the accused desired to give confessional statements they were sent to the nearest Magistrates. THE 2nd accused was sent to PW. 32 the Stationary First Class Magistrate, Attingal. Ext. W is the statement recorded by him. THE 1st accused was sent to PW. 35, the Stationary first Class Magistrate, Nedumangad. Ext. E is the confessional statement recorded by him. On the information given by the 2nd accused, M. O. No. 11 chopper was recovered from the forest reserve where the dead body of Sumathi was found lying. On the information given by the first accused a pair of slippers M. O. No. 10 was recovered from under the bridge at Mylamoodu near the place where the dead body of Sumathi was lying. After investigation both the accused were charged before the Magistrate and he committed them to stand their trial in the Sessions Court, Trivandrum. After trial, with the help of two assessors, the accused were convicted and sentenced as mentioned in paragraph 1.

(3.) THE principle that has to be borne in mind has been thus laid down by the Supreme Court in Hanumant v. State of Madhya Pradesh, reported at page 345 of AIR 1952 SC 343. "it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tenancy and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused". In Kashmira Singh v. State of M. P. , reported in AIR 1952 sc 159, the Supreme Court has laid down that the confession of an accused person is not evidence in the ordinary sense as defined in S. 3 of the Evidence act and it cannot be made the foundation of a conviction, and can only be used in support of other evidence. THE proper way to approach a case of this kind is as pointed out by THEir Lordships in the above case "first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then, of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept". In pyli Jacob v. THE State, reported in ILR 1952 TC 937, this Court while considering the circumstances under which a confession could be used had occasion to review and consider all the important cases bearing on the point. Further emphasis is therefore unnecessary to show that the evidence adduced in the case has to be considered at the first instance before seeking the aid of the confessional statement. THE court below began with the confessional statements and then attempted to accept them by referring to other evidence corroborating those statements. That was not the proper procedure to be adopted. We would therefore deal with the independent evidence adduced in the case before we consider to what extent the confessional statements could be relied upon.