A murder conviction was challenged on identification and forensic-evidence grounds. The court rejected the identification parade as corroboration and excluded the police confession, but upheld the conviction and sentence on the remaining evidence. It found no need for separate questioning on the forensic reports' contents and dismissed the appeal.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941
CRL.A.No.607 of 2014
AGAINST THE JUDGMENT IN SC 364/2008 of ADDITIONAL SESSIONS COURT - V, KOZHIKODE DATED 31-03-2014 CRIME NO.297/2005 OF Nadakkavu Police Station, Kozhikode
APPELLANT/ACCYSED:
MANIKANDAN AGED 38 YEARS S/O.BALAN, KALLUVETTUKUZHIYIL HOUSE, MANKAVU, VALAYANAD.
BY ADVS. SRI.NIRMAL. S SMT.VEENA HARI SRI.P.VIJAYA BHANU (SR.)
RESPONDENT/COMPLAINANT/STATE: STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, NADAKKAVU POLICE STATION, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031.
BY ADV.SRI. S U NAZAR SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2019, THE COURT ON 18.6.2019 THE FOLLOWING:
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J U D G M E N T
Shaffique, J.
This is an appeal intending to challenge the verdict of the Court of Session, Kozhikode Division in S.C. No.364 of 2008 dated 31/03/2014 on C.P. No. 3 of 2008 arising out of Crime No. 297 of 2005 of Nadakkavu Police Station. The appellant herein who is the sole accused in the said case was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for brevity 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine amount of `25,000/- (Rupees Twenty Five Thousand only) in default of payment of which to suffer rigorous imprisonment for one year for the said offence.
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near KSRTC bus stand at Kozhikode where the deceased was an employee.
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seen the photograph of the appellant before the alleged test identification parade (for short 'TIP'). TIP is totally unacceptable and it points to the false implication of the appellant. Key incriminating circumstances relied on by the trial Court such as contents in Exts.P20 and P21 were not put to the witness during his 313 examination which caused great prejudice to the appellant. None of the witnesses identified the weapon of offence. No evidence is forthcoming to prove the motive for the crime. The case against the appellant in its entirety is highly suspicious and hence benefit of doubt should be extended to him. 5. Per contra, learned Senior Government Pleader Sri.S.U.Nazar argued that the case of the prosecution is proved beyond reasonable doubt and that the trial Court is perfectly justified in convicting the appellant. Evidence of PW1, PW2, PW5, PW14 and PW15 when read together shows that the appellant is the one who committed the offence. MO1 chopper which is a dangerous weapon was carried by the appellant to the place of occurrence and as many as 19 injuries were inflicted by him on the victim. No space is there to doubt the prosecution case. The evidence of eyewitnesses is corroborated by the evidence of
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medical Doctor and scientific experts. He pleaded to dismiss the appeal.
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was the conductor of the said bus. PW12 was the driver of the said bus and he turned hostile to the prosecution. PW13 is the owner of Deluxe Service Station. PW14 Madhusoodanan was the police constable attached to Kasaba Police Station before whom the appellant allegedly surrendered soon after the incident along with MO1 blood-stained chopper. Ext.P2 is the seizure mahazar for the seizure of chopper, jacket and pants of the appellant. PW15 Basheer Ahamad was the Head Constable of Kasaba Police Station. He was on G.D. charge duty on the date of incident. At about 09.50 a.m., he heard a tumult from outside. Then PW14 produced before him a person with a chopper. As per Ext.P11 arrest memo, he arrested the appellant. Ext.P12 is the inspection memo. He seized MO1 chopper, MO4 jacket and MO5 pants as per Ext.P2 seizure mahazar. PW16 is an attestor to Ext.P3 seizure mahazar. PW17 is the Village Assistant, Kasaba Village. Ext.P14 is the site plan prepared by him. PW18 Dr.Thomas Mathew was the Professor and Police Surgeon of Medical College Hospital, Thrissur. He conducted the autopsy of the victim. Ext.P15 is the post-mortem certificate. PW19 was working as a supplier at G.K. Snacks at Mavoor Road, Kozhikode. He is declared hostile. PW20
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is the then S.I. of Police, Nadakkavu Police Station who recorded Ext.P1 statement of PW2 Molly. Ext.P17 is the FIR. PW21 is the then Judicial First Class Magistrate – I, Kozhikode who conducted the TIP and issued Ext.P18 report for the same. PW22 K.K. Biju was the Principal Sub Inspector, Kasaba Police Station who deposed that he had complied the formalities to transfer records of the case to Magistrate Court having local jurisdiction on the case. PW24 is the C.I. of Police, Nadakkavu who conducted the major part of the investigation. He prepared Ext.P2 inquest report and Ext.P3 scene mahazar. He seized MO2 dubba with blood and MO3 series chappals. Ext.P25 is the arrest memo and Ext.P26 is the inspection memo prepared by him at the time of arresting the appellant. Ext.P27 is the report incorporating the name and address of the accused. Ext.P28 is the report to call for records in Crime No.274 of 2005 of Kasaba Police Station from JFCM-III, Kozhikode to JFCM-IV, Kozhikode. He seized blood and hair collected at the time of post-mortem of the victim as per Ext.P13 mahazar. Ext.P29 is the mahazar prepared at the time of seizing computer print out. PW23 is the then C.I. of Police, Chevayur who completed the investigation and filed the charge-sheet.
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2. Incised wound 13x1x3cm on back of neck on left 'V' shaped one limb 7 cm and other 6 cm with its apex directed downwards and 3 cm above root of neck and terminated by cutting the muscles of back of neck.
3. Superficial incised wound 10x0.8cm oblique on back of left shoulder lower inner end 6 cm outer to midline and abrasion 7 cm towards top of left shoulder.
4. Incised wound 16x5x4 cm on back of left shoulder blade and upper arm, slightly curved with convexity outwards the upper end 8cm below top of shoulder and 18 cm outer to midline inner border showed a side cut 2x1cm.
5. Incised wound 16x5x3cm oblique on top of inner upper end 12 cm outer to midline of neck muscles were cut exposing the head of humerous.
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6. Incised wound 9x2x2cm vertical on front of left upper arm end 1cm below top of shoulder and lower end 4 cm below axilla.
7. Incised wound 2x1cm on top of left thumb cutting off its tip at inner aspect.
8. Incised wound 0.8cm x 0.6 cm cutting off tip of left index finger.
9. Multiple contused abrasion over an area 21x12 cm over back of left elbow and forearm.
10. Superficial incised wound 3x0.2cm front of left elbow at inner aspect.
11. Incised wound, superficial 1.2x0.5cm back of right forearm 7 cm below elbow.
12. Incised wound superficial 2.8x1cm outer border of right forearm 14 cm below elbow.
13. Curved incised wound superficial 6x1cm on back of wrist (right).
14. Incised wound 2x0.1cm superficial back of right forearm inner aspect, upper end at wrist.
15. Incised wound 2.5x0.2 cm transverse inner aspect of left hand at back 2cm below wrist.
16. Incised wound 4x0.5cm front of right hand ulnar aspect transverse, 5cm below wrist cutting partially hypothorax muscles.
17. Incised wound 8x2cm muscle deep on outer and front of right leg 21 cm below knee.
18. Incised wound 4x0.5cm on right side of face transverse 2cm below outer angle of eye.
19. Incised wound 5x0.6 cm x2cm on right side of face and alae of nose, transverse cutting nasal bones and maxilla.”
According to him, the death of Sabu was caused out of injury to
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the skull and brain. From medical evidence and other evidence, it is rather clear that death of Sabu was a homicide.
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where Prakash and Chandramathi were working. Shyji was working at diesel pump. She reached for duty at 08.00 a.m. and at that time Sabu and PW2 were there on duty at the pump. Her time duration of work was from morning 08.00 to evening 05.00. If any telephone call is received, she was in the habit of attending them. On the date of incident, at about 09.30 a.m., a phone call was received by her in office. The demand of the person who contacted was that he had to get Sabu over phone. The voice was that of a male. She called Sabu and Sabu came and attended the call and had conversation with each other. She did not hear what they were talking. After making the call, Sabu resumed his work. After sometime, she heard loud cry of PW2. She suddenly looked to the spot and saw someone chopping Sabuchettan. It was about 10.15 a.m. It is her version that she had seen Sabuchettan falling down at the western side of the pump on receiving injuries. The weapon used to inflict injuries, according to her, was weapon similar to koduval (chopper). The victim was being inflicted injuries indiscriminately. At the time of chopping, PW2, Chandramathi and Shyji came to the office crying. Saji and Valsan went near to Sabu. She did not go near, out of fear. It is her
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version that the person who inflicted injuries on Sabu was wearing a black coat and pant. He got into an autorickshaw and went away. Sabu was taken to the hospital by local people. She later came to know that the person who chopped Sabu had surrendered to Kasaba Police. During cross examination, she deposed that Sabu was seen disturbed after receiving the telephone call. At the time of incident, there was not many number of vehicles in the pump to fill petrol. She corrected her earlier version by stating that the pump was not inside the compound but by the side of the road. She heard the cry of PW2 half an hour after Sabu attended the phone. At the time when she heard the cry, she was sitting in her seat. She had seen the incident by standing up from the seat. She categorically deposed that she had seen the person chopping Sabuchettan at the place where Sabu was standing which was at the east pump. Thereafter, she had seen the aggressor cutting Sabu many times at the place where Sabu was lying which was at the west of pump. She admitted that she had no case before police that she had seen the person who chopped Sabuchettan getting into an autorickshaw and going away. She further stated that there was
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an attendance register in the office and it is possible to know who all attended duty on each day. She denied the suggestion that she was lying before Court. She stated that she knew the wife of the victim. During re-examination, she deposed that the office was at a higher elevation than the ground level.
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there. She heard him calling 'Sabu'. The person cut at the neck of Sabu. She saw the weapon used to inflict the injury. Sabu fell down. She stated that she had seen two to three chopping. She cried aloud and ran to the office. Sabu was taken to Medical College Hospital, Kozhikode by people who gathered there. She had seen the person who cut Sabu going towards the road. She identified the appellant as the person who inflicted the injuries on Sabu. She stated that she could not identify the weapon used by the appellant for committing the offence. Ext.P1 is the statement given by her to the Nadakkavu Police. During cross-examination, she stated that there was an attendance register kept in the pump for workers. The pump was not crowded as it was the previous day of Thiruvonam (A special day of Onam festival in Kerala). Sabu was trying to fill petrol in a motorbike 10 to 15 minutes after attending the phone call at the office. She denied the suggestion that she had seen the deceased catching hold of the person who came to attack him. She added that the person who came was chopping Sabuchettan. At the time of attack by the appellant, Sabu was not filling petrol. The incident happened 10 minutes after the motorcycle left the pump. Sabu was taking
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tea by standing there. Tea boy came and gave tea but he left the place and he was not there at the time of incident. Hearing her cry, many people gathered there. At the time of cutting Sabu, she did not see the face of the assailant. She denied the suggestion that she is deposing falsehood before Court. In re-examination, she stated that the pipe of the filler has a length of 4 metres. She was recalled by the prosecution and she deposed that she had identified the appellant during TIP before Magistrate. In crossexamination, she stated that she could identify the appellant at TIP because she was shown the appellant at the police station.
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Kasaba Police Station. As PW5 was not taking the auto forward, he told a second time with loud voice, to take the vehicle to Kasaba Police Station. PW5 obeyed and took the vehicle to Kasaba Police Station. PW5 asked the person whether he would stop the auto outside the police station. The person asked him to take the auto into the police station compound. Accordingly, PW5 had driven the auto to the police station compound. He gave PW5 `20/- as fare. He alighted from the autorickshaw and went inside the police station. To know what the incident was, PW5 also went to the police station. At that time, he heard the said person stating to police “I chopped Sabu who killed my father”. PW5 also heard the police asking the name of the person and for which he told his name as Manikandan. According to PW5, the person entered into the police station with the koduval (chopper) which he was carrying with him while he was in PW5's autorickshaw. PW5 is an attestor to Ext.P2 seizure mahazar of the said chopper and dress of the said person. He deposed that he could not identify the chopper he had seen at that time. He was declared hostile to the prosecution. He agreed with the prosecutor that he had given a statement to police that he is able
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to identify the person again. He admitted that he had given 164 statement to learned Magistrate. He admitted that he identified the appellant in TIP conducted in 2005 and at that time he was having memory to identify him. At the time of trial, he is not able to identify because of lapse of so many years. In crossexamination, he admitted that he had no case before Magistrate that the appellant had given his name to police as Manikandan. He also admitted that he was shown the photograph of the appellant in police station before test identification parade. He stated that he noted the petrol pump over there and he had seen two people engaging in fight, but he could not understand who they were. He deposed that he has no acquaintance with the deceased.
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the hands of the person, his jacket and pant were seized as per Ext.P2 seizure mahazar for which PW14 is an attestor. He identified MO1 chopper, MO4 jacket and MO5 black pant. He also identified the appellant as the person who came there with chopper. Nothing material is brought out in his cross-examination to contradict his version or to cast doubt on his deposition.
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surrendered to the police station and the appellant told the name as Manikandan. In cross-examination, he stated that he had not checked the T-shirt which the appellant was wearing. He denied the suggestion that he did not notice the wounds on the appellant. He admitted that he had no case earlier to police that he had come out hearing commotion. He denied the suggestion that he is testifying falsely against the appellant.
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weapon from the hands of the appellant, is not put to the appellant properly and hence he did not get an opportunity to explain the circumstance appearing against him. It caused prejudice to the appellant.
seen the accused and she had identified him. Of course, we have already held that the conduct of TIP cannot be taken as a corroborative piece of evidence as the witnesses have stated that they were shown the photographs by the police before conduct of TIP. But, in this case, the conduct of the accused immediately after the incident are relevant facts in terms of S.8 of the Evidence Act. PW5 deposed that while he was returning after a
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trip to KSRTC stand, when he reached near Deluxe pump at Mavoor Road, a person got into his autorickshaw. When he looked back, he saw that the person in the auto was carrying a chopper. He stopped his auto and the passenger asked him to take him to Kasaba Police Station. When PW5 did not take the auto forward, he asked him to take the auto in a loud voice. PW5 took the vehicle to the Kasaba Police Station and inside the compound of the Police Station as per the request of the passenger. The passenger entered into the police station with the chopper. PW14 was on guard duty at the Kasaba Police Station. He deposed that one person came to the police station in an auto with a blood stained chopper and he was saying “I had cut the person who killed my father”. PW14 immediately took him to PW15, who was in GD entry. Immediately Ext.P2 seizure mahazar was prepared in which PW14 is an attestor. PW14 identified the appellant, who came with the chopper. PW15, the GD in charge of Kasaba Police Station, has taken the accused into custody and he was arrested. He also identified the accused whom he had arrested on the said day. Therefore, it could be seen from the narration of events by the witnesses, and the conduct of the
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accused, that the accused was the person who had inflicted injuries on the deceased at the petrol pump. After committing the crime, he entered into the auto of PW5 and straightaway proceeded to the police station and PW14 and PW15 are the witnesses for the same. He had surrendered the blood-stained chopper to the police and PW14 and PW15 had identified him as well. PW14 was on guard duty on the said day. The accused approached him with a bloodstained chopper and stated “എനന അച്ഛനനെ നകകൊന്നവനനെ ഞകൊൻ നവടട്ടി എന്നു പറഞഞ്ഞ് നകകൊണഞ്ഞ് അയകൊൾ എനന അടുതത്തേക്കു വന്നു”. In Aghnoo Nagesia v. State of Bihar (AIR 1966 SC 119), the Apex Court held that a confession or an admission is evidence against the maker of it, if its admissibility is not excluded by some provision of law. Under Section 25 of the Evidence Act, no confession made to a police officer shall be proved as against a person accused of an offence. Therefore, the statement to PW14 apparently amounts to a confession to a police officer and cannot be taken as proof.
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it was found to be belonging to group 'O'. The chemical examiner also collected hairs from the blade in item No.1 which is the chopper. When it was analysed with the sample of hairs of deceased and forwarded to the Biology division, it was found that the hair collected from the chopper and the sample hair matches.
the Apex Court in Harijan Megha Jesha v. State of Gujarat (AIR 1979 SC 1566), wherein it is held as under:-
“143 . To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1566 where the following observations were made :
"In the first place, he stated that on the personal search of the appellant, a chadi was found which was bloodstained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the
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prosecution cannot be permitted to rely on this statement in order to convict the appellant."
That the accused had come to the police station at 9.15 a.m on the said day in an autorickshaw with a bloodstained chopper as spoken to by PW14 has been denied by the accused during 313. PW14 is the witness to the seizure mahazar and a bloodstained chopper was recovered from him as per the seizure mahazar Ext.P2 has also been put to the witness during 313. The evidence given by PW15 regarding the chopper has also been questioned, which the accused denied. In fact, in Harijan Megha Jesha (supra), the Apex Court was considering an appeal in which the accused was acquitted by the trial Court and the appellate Court had reversed the said finding and had convicted the accused and one of the circumstances indicated by the prosecution to corroborate the oral testimony of PW1 was that a chadi was found which was bloodstained and according to the report of Serologist, it contained human blood. It is in the said circumstances that the Apex Court observed that the said circumstance was not put to the accused in his statement u/s 342 of the Code of Criminal Procedure, 1898 Act. In fact, there has been certain legislative changes with reference to the 1898 Act when 1973 Act came into
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force, which was based on Law Commission's 41st Report. Earlier under Section 510 of the 1898 Act, the report of the Chemical Examiner or Assistant Chemical Examiner, Chief Inspector of Explosives, the Director of the Finger Print Bureau and an officer of Mint was considered as evidence in a case. While enacting S.293, the Director, Deputy Director or Assistant Director of a Central Forensic Science Lab or a State Forensic Science Lab and the Serologist to the Government have also been included as experts whose reports may be used as evidence.
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whether the contents of the document should be put to the accused while questioning him u/s 313. In the 313 questioning of the accused, the evidence of the investigating officer placing reliance on Exts.P20 and 21 have been specifically put to him. In the above circumstances, there is no necessity to question the accused regarding the contents of Exts.P20 and P21, in the 313 examination.
Crl.Appeal is therefore dismissed.
Sd/-
Rp //True Copy// PS to Judge
A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR JUDGE
3 issues framed by the court
Could the murder conviction stand despite the test identification parade lacking corroborative value?
Was the accused's confession to the police officer admissible?
Was separate questioning on the forensic reports' contents necessary when the investigating officer's reliance on those reports had been put to the accused?
Colour shows how this judgement treated each authority
Aghnoo Nagesia v. State of BiharApplied¶112
Aghnoo Nagesia v. State of Bihar (AIR 1966 SC 119) · Who else cites this
Sharad Birdhichand Sarda v. State of MaharashtraReferred¶117
Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) · Who else cites this
Harijan Megha Jesha v. State of GujaratDistinguished¶128
Harijan Megha Jesha v. State of Gujarat (AIR 1979 SC 1566) · Who else cites this
5 provisions across 3 enactments
MANIKANDAN
STATE OF KERALA
A.M.SHAFFIQUE
N.ANIL KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
