NARAYANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE three accused who have been convicted under S. 376 and 302 read with S. 34 I. P. C and sentenced to death by the Tellicherry Sessions judge are the applicants. THE reference by the learned Sessions Judge for confirmation of the death sentence was also heard along with the appeal.

(2.) FIFTEEN-year-old Narayani, a student in the eighth standard of the Kayyoor High School, though married was living with her parents to prosecute her studies. On 19-8-1963 at about 8 A. M. as usual she went to her school and left it at 4 P. M. with other students to return home. At about 5 or 5-30 P. M. she parted company and walked alone till she reached the vallarkkat Poyil about four furlongs away from her home. It is alleged by the prosecution that all the three accused were standing under a cashew tree near the well in Vallarkkat Poyil on the north-western side. Seeing Narayani, one among the accused asked her to stop whereupon she began to run away. Accused 3 then caught hold of her skirt from behind and she fell down on her face. All the three accused then lifted the girl and carried her away into the thicket nearby. Pw. 6 who heard the girl's cries "kunhetta, Kunhetta", interfered. He was warned by accused 1 to run away if he cared for his life hearing which Pw. 6 left the place in fear. As Narayani did not return from school even after the usual time her people got frightened and searched for her all the evening and the whole night in vain. On 20-8-1963 morning Narayani's brother Kannan found narayani's bundle of books by the side of the well and her dead body in the well at Vallarkkat Poyil. Her parents were informed who sent Pw. 1 Narayani's father's brother and Pw. 2 to inform the Nileswar Police. A case of death by drowning was registered by the station writer and the First Information Report was sent to the Sub-Inspector of Police who ordered the Head Constable to investigate the case. The Head Constable then proceeded to the spot, held the inquest and sent the body for post-mortem examination. After the post-mortem was completed the Sub-Inspector took over the investigation on 23-8-1963. Complaints arose from the villagers that the investigation by the local police was 'tardy and ineffective' and C. I. D. Inspector Pw. 29 was deputed to look into the case. He took charge of the investigation on 26-9-1963 , questioned some witnesses including Pw. 6, arrested the accused on 1-10-1963 and filed the charge-sheet in court on 10-12-1963.

(3.) THE only evidence connecting the accused with the crime is that of Pw. 6 and for the purpose of this appeal the main question that falls to be considered is whether the evidence of Pw. 6 is worthy of acceptance and if so whether corroboration is necessary. Pw. 6 Kunhikannan swears that at about 5-30 P. M. on 19-8-1963 he saw Narayani coming from the west carrying a bundle of books in one hand and holding an open umbrella in the other. THE three accused were standing together under a cashew tree and one of them called out to her to stop. Narayani attempted to run away when accused 3 pulled her skirt from behind. She fell down on her face. All the three accused then lifted her and carried her away when she cried "kunhetta, Kunhetta". Hearing this cry he ran up and scolded them. Accused 1 then threatened him and asked him to run away if he cared for his life. He got frightened and he returned to his house. He lives two miles off from the scene and explains his presence at the scene by coming out with a story that he was out to gather "sathavari" roots for preparing an oil for his ailing mother. According to him he was at that work from 10 in the morning and had secured the requisite quantity by 4-30 P. M. All the same he seems to have waited for another hour to witness the occurrence. He gave contradictory versions even about the Vaidian who was treating his mother and who deputed him to gather the herb. He was questioned by the C. I. D. twice and on the former occasion he gave the name as V. K. Vasu Vaidian and on the second as K. V. Ambu Vaidiar who is examined as Pw. 8. THE explanation that he gives for this change of names is not acceptable. He has no case that Vasu Vaidian was also treating his mother. Pw. 8 belongs to the same Vannan Community as the deceased and the defence suggestion that Pw. 8 who was pitched upon as Vasu, Vaidian was not willing to afford corroboration to the evidence of Pw. 6, may not be altogether unfounded. THE admission of Pw. 6 that be did not know the name of Pw. 8's Vaidiasala which he visits often only adds strength to this suggestion. It is also not known why Pw. 6 had to be questioned twice. Another strange feature about this "sathavari" hunting campaign is that the witness waited for three days without handing it over fresh to the Vaidian. THE explanation given for this is that he had to go to the Nileswar Hospital to purchase medicine for his mother. Evidently that could not have prevented him from handing over the "sathavari" roots to Pw. 8 whose Vaidiasala also happens to be at the same place. In his cross-examination he said that he did not tell Ambu Vaidian about the death of the girl but Pw. 8 says that he had told him that the dead body of the girl was discovered the next day in a well and also that from what pw. 6 told him he suspected it must be a case of murder. This untrue statement of Pw. 6 must have been made with a purpose since Nileswar Police Station is only two hundred yards away from Pw. 8's Vaidiasala. THE most suspicious circumstance which makes the witness's evidence unreliable is that he did not disclose the precious information to the police until 27-9-1963 when he was questioned by the C. I. D. Inspector though he had every reason to come out with it earlier and there were ever so many occasions on which he could have and should have done so. He admits that he was well acquainted with Narayani's father for the past ten years. Narayani's house is three or four furlongs from the place. One would have naturally expected him to carry the information promptly to Narayani's father especially when he felt indignant at the conduct of the accused and asked them "have you not got mothers and sisters. Why do you behave in this manner. " Even when he came to know of Narayani's suspicious death the next day he did not care to go and meet Narayani's people. Again the Nileswar Police Station is within 200 yards of Ambu Vaidiar's vaidiasala and he did not care to convey the information to the police station though he had visited Ambu Vaidiar on the 3rd day & also on later occasions. It is even stranger that he did not mention about it to his parents or wife. THE prosecution has made a desparate attempt to bring in evidence, most of it irrelevant, to strengthen the evidence of the witness by making Pw. 7, 8, 20 and 21 say that be had communicated the information to them some time or other before he divulged the information to the police. We shall be adverting to that evidence presently. THE only explanation given by the witness for not informing Narayani's people or the police who are the most interested parties in the detection of the crime is that he was frightened of the accused. To this the learned judge would add another viz. , "the villagers had lost confidence in the officers who were investigating the case and the atmosphere was highly surcharged with suspicion against their good faith and sincerity of purpose. " However the witness himself had no such case. This explanation is also untrue. THE accused saw the witness, threatened him and then carried narayani off to the thicket. Pw. 6 says that he knows the accused from "boyhood". THE accused must know that Pw. 6 who witnessed the abduction would be a dangerous person whose silence should be obtained at any cost. But the witness does not even suggest that any of the accused or anybody on their behalf approached him or threatened him for one month and odd during which period he was freely moving about, two times to Nileswar and at least once to the very place where the occurrence took place. It is the definite case of the accused that the services of Pw. 6 were obtained by Kottan Kunhi and ambunhi who were two of the suspects in this murder case and who are admittedly very rich and influential persons of the locality. THE sudden transformation of pw. 6 as an eye-witness as if by a touch of the magic wand, immediately after the appearance of the C. I. D. Inspector on the scene speaks for itself. On the whole the evidence of Pw. 6 has not impressed us as that of a truthful witness.