RAJESH R NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANT was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- for offence punishable under Section 302 of the indian Penal Code. The appellant was the first accused. He was alleged to have killed his mother and sister. Since appellant was financially not able to engage a lawyer, State appointed a lawyer before the trial Court and this Court under the legal aid scheme. As per the final report, police charged originally accused, his mother Chandrika and father of the accused under Sections 302, 306 and 323 read with Section 34 of the Indian penal Code. After perusing the records, Court charged the appellant alone under Section 302, IPC as mother, original A2, died and it was recorded as abated. The allegation of the prosecution was that appellant Rajesh (A1), his mother Chandrika (A2), father of the appellant (A3) and deceased Raji, sister of the appellant were residing in House No. A. P. X/506 of Anad Village. Father used to abuse and assault his wife and children after consuming alcohol. On 2-6-2001, at about 6. 30 p. m. , father (the third accused)came to the house after consuming alcohol. On that day, at about 8. 00 p. m. , when the second accused Chandrika asked the third accused as to whether he wanted rice, the third accused answered in the negative. On hearing this, appellant stated that A3 could eat only if he wanted to eat. On hearing this, a3 abused the appellant and at that time, the deceased Raji told the third accused not to consume alcohol any more as the consumption of alcohol by A3 was creating problems. A3 disliked this and questioned the deceased and assaulted the deceased Raji, but, A2 intervened, A3 went to the kitchen and brought a coconut scrapper to assault a2. At that time, A1 intervened and obstructed a3 and there was a scuffle between a1 and A3 and, as a result of which, A1 sustained minor injuries on both his palms. Thereafter, A3 destroyed the household articles and told others to go and die anywhere. Due to the intolerable torture by A3, deceased Raji, along with A1 and A2, decided to commit suicide and, accordingly, they left the house at about 10. 00 p. m. on that day and reached the coconut plantation of P. W. 4 at about 10. 30 p. m. Thereafter, A1 and a2 tied a towel around the neck of Raji and pulled the same from both sides. When Raji collapsed, A1 tied the same towel tightly around the neck of A2. Thereafter, A1 dropped MO 1 stone on the heads of Raji and dropped the said stone on the head of A2. Both Raji and A2 died due to the combined effect of constriction of neck and the injuries sustained on their head. Here, A1 to A3 were charge-sheeted for offences punishable under Sections 302, 306 and 323 read with section 34, IPC. A2 died in the same incident even before police registered the case. A3 was charge-sheeted only for abetting the suicide, but, the charge of the prosecution was that A2 as well as the deceased Raji were murdered. Therefore, A2 was discharged under Section 227 of the Code of criminal Procedure as there was no evidence of abetment of suicide on the part of A3 by order dated 6-10-2003. Therefore, only appellant faced trial. It is the case of the prosecution that the appellant (A1) and his mother (A2) and deceased together decided to die due to the cruelty of A3 and in that process accused killed the deceased Raji, his sister with the help of his mother (A2) and thereafter A1 killed his mother and, thereafter, he went to another pond and tried to commit suicide by jumping into the pond, but, since there was no sufficient water he did not die and he went to the police station with the thorthu (bath towel) used for strangulation and gave a confession statement and surrendered himself. Thereafter, he was brought to the place of incident. His father was also arrested. P. W. 9 police constable stated that at 11. 35 p. m. on 2-6-2001 Rajesh (appellant) came to the police station and gave Ext. P8 (a) first information statement. On the basis of this first information statement, ext. P8 FIR was registered. He also stated that the thorthu in the hands of rajesh was taken into custody and it was marked as MO2. He also identified the shirt and lungl worn by the accused and it was marked as MOs. 3 and 4. Explanation of the accused was that police came in the night with a thorthu and took him to the place where the dead bodies were lying. Seeing the dead bodies, he tried to take the dead bodies with his hand. Later, he was taken to the police station and arrest was recorded. When P. W. 9 was examined, he clearly stated that the appellant came to the police station and gave the statement. It is true that confessional part of the statement cannot be accepted in evidence as confessions and incriminating statements given to the police officer are not admitted in evidence. First information statement is not a substantive evidence and can be treated only to corroborale the informant under Section 157 or contradict the maker under Section 145 of the Evidence Act. It cannot be used against the maker at trial if he himself became an accused. It cannot be used to corroborate or contradict the statement of other witnesses also as held bv the Apex Court in nisar Ali v. State of U. P. (AIR 1957 SC 366)and Rakesh Singha v. State of Himachal pradesh (1996 SCC (Cri) 930) : (1996 Cri LJ 2311 ). As held by the Supreme Court in aghnoo Nagesia v. State of Bihar, (AIR 1966 sc 119) relying on Dal Singh v. King emperor (AIR 1917 PC 25) when the accused himself giving the first information statement, the fact of his giving the information is admissible against him as an evidence of his conduct under Section 8 of the Evidence act. If the information is a non-confessional statement, it is admissible against him as an admission under Section 21 of the evidence Act. But, a confessional FIR by the accused to the police cannot be used against him. In Re : Mottai Thevar (AIR 1952 Mad 586) it was held that there is no bar to rely on a confession made in the first information being used in favour of the accused. In that case, it was also held that when the accused went to the police station with a blood-stained weapon and confessed having killed his wife, all that is held admissible is that he brought with him a blood stained weapon and informed the death of his wife. In this case, the fact that he went to the police station with a thorthu at about 11. 30 p. m. and informed about the death to P. W. 9. During cross-examination of P. W. 9, it is also stated that there were abrasions in the hands of accused.

(2.) P. W. 2 is a close neighbour. He deposed that he knew the deceased, accused and his father. Father of the accused used to get intoxicated and assault his wife and children. He has very clearly stated that he had seen the accused as well as the deceased raji and Chandrika at about 10. 30 p. m. while he was returning from the river. When he asked where they are going, they did not answer. When he came back to the house, his wife told him that they left the house saying that they are going to die. He also stated that on 3-6-2001 early morning, he saw Radhakrishnan Nair was taken into custody by the police. Apart from P. Ws. 1 and 2, all other witnesses examined are official witnesses like doctors, investigating officers, mahazar witnesses etc. Prosecution relied mainly only on P. W. 2 and scientific evidence to prove the offence alleged against the deceased by circumstantial evidence. P. W. 10 was the investigating officer. He stated that he had taken impressions from the neck and palm of Raji using cellophane tapes. The cellophane tapes are marked as mo. 10 series. He further stated that near the place of incident where the dead body was seen, there was a granite stone which was marked as MO. 1. He had also recovered the dress and other materials from the dead body. Nail clippings taken from the hand of the accused was taken as MO. 20.

(3.) P. W. 7 is the doctor who conducted post-mortem examination of the body of chandrika and issued Ext. P4 post-mortem certificate. He noted the following ante-mortem injuries on the body of Chandrika :