Raveendran and anr. Vs. State of Kerala - Court Judgment

P.A. Mohammed, J.

1. These appeals arise from the judgment of the Sessions Court, Tellicherry in Sessions Case No. 27 of 1989. Criminal Appeal No. 87 of 1990 is filed by accused 1 and 2. The first accused is convicted for offences under Sections 302 and 201, I.P.C. and second accused under Section 201, I.P.C. Criminal Appeal No. 316 of 1990 is filed by the State against the acquittal of second accused of offences under Sections 302 and 201, I.P.C. and the acquittal of third accused of all offences invoking provision under Section 378 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

2. The case of the prosecution can be summarised briefly thus: Deceased Yeshoda had developed intimacy with one Gopolan who promised to marry her. She became pregnant as a result of sexual relationship with him before the marriage between them could take place. While so, Gopalan died suddently. Yeshoda gave birth to a son called Vijesh. Thereafter Yeshoda and Ravindran (first accused) came close to each other and love developed between them. The parents of Ravindran did not approve this relationship. But the marriage between them did take place and a registered deed was executed on 19-8-1986. Yeshoda purchased five cents of land out of her own funds at a place called 'Kappad' and constructed a small house. They lived there cordially for some timebut later their marital life ran into rough weather. Ravindran decided dissolution of his marriage with Yeshoda. He took Yeshoda to her house at the time of Assembly Election in the year 1987. Thereafter Ravindran did not visit the house of Yeshoda. However, Yeshoda used to visit the house of Ravindran at Thillenkeri. On 1-3-1988 Yeshoda went to Thillenkeri as demanded by Ravindran. Ravindran made a promise to her that he would purchase a house for her at Badagara where she could live with one of her brothers. On 3-3-1988 Yeshoda at about 8 a.m. went to Kakkengad to meet her husband who had informed her that he would come with jeep to fetch her. Next day Devasia (P.W. 8) informed her brother (P.W. 6) that he had seen Yeshoda with Ravindran in a jeep at Payam Mukku. That did not cause any suspicion since Yeshoda used to go with Ravindran and reside together as they liked. Some time later Muraleedharan (P.W. 23) younger brother of Yeshoda went to Iritty for marketing and he happened to meet Ravindran there. Ravindran asked him whether Yeshoda was there in the house. When he replied that Yeshoda was not there Ravindran told him that he should inform his sister that he had contracted second marriage. P.W. 23 conveyed this information to his brother P.W. 6 and mother (P.W. 16). Thereupon P.W.16 and P.W. 23 went to Thillenkeri and made enquiries about Yeshoda. To their surprise Ravindran said that he did not kaow anything about Yeshoda. They went to Kappad and Badagar and made enquiries as to the whereabouts of Yeshoda. The efforts made by them to find out Yeshoda did not succeed. Under that situation P.W. 6 and P.W. 16 went to Peravoor police station and told about missing of Yeshoda. Thereupon C I. of Police took P.W. 6 and P.W. 16 to the office of the Revenue Divisional Officer at Tellicherry. Certain articles recovered from the deadbody of a lady were lying there in that office. Those articles were shown to P.Ws. 6 and 16 and after seeing those articles, they were convinced that those articles belong to Yeshoda. On 30-3-1988 P.W. 1 and one Bhaskaran saw' a deadbody of a woman in a ravine. They happened to see the deadbody when they experienced a foul smell at the place of 36th K.M. stone on Tellicherry-Manantavady road. P.W. 1 immediately went to Kelakam police station and gave a statement tp the police. P.W. 33 Head Constable recorded the statment and registered a crime describing 'unnatural death'. P.W. 35 Circle Inspector took up the investigation of the case on 31-3-1988. He went to the scene where deadbody was lying and held inquest, and prepared a report (Ext. P-8). M.Os. 1 to 7 were recovered from the deadbody. The deadbody was thereafter sent for post-mortem examination and Doctor issued Ext. P-10 certificate. After getting the report of the Chemical Analyst the doctor confirmed that the death was a clear case of homicide. M.O. 13 is the skull of the deceased Yeshoda. Skull-photograph of the deceased (Ext. P-28) and a saree of the deceased (M.O. 14) were sent to Forensic Science Laboratory at Trivandrum for super imposition. On 7-7-1988, P.W. 35 sent a report to the Court for altering the charge. Subsequently the first accused was arrested on 1,1-7-1988. M.O. 10 wrist watch belonging to Yeshoda was recovered pursuant to statement of first accused (Ext. P-30). The second accused was arrested at 9.30 a.m. on 11-7-1988. M.O. 9 padasaram and M.O. 8 thali were recovered pursuant to the statement given by the second accused. Third accused Was also arrested on the same day and his jeep K.L.A. 1170 was also seized, two stones (M.Os. 11 and 12) were recovered by P.W. 35 pursuant to Ext. P-26 and Ext. P-27 statements given by accused 1 and 2 respectively. The investigation was later taken over by P.W. 34. After completing the investigation charge was laid by P. W. 34.

3. The learned Sessions Judge framed charges against all the three accused under Sections 302 and 201 read with Section 34, I.P.C. The accused persons pleaded not guilty to the charges. They were later questioned under Section 313 of the Code, after the completion of prosecution evidence. All the incriminating circumstances revealed from the evidence were put to the accused. Accused 1 and 2 urged that they were falsely implicated in the case at the instance of P.W. 6. Third accused pleaded that he is innocent of all charges levelled against him,

4. At the outset, it is necessary to observe that the entire case of prosecution is rested on inferential evidence which is otherwise called 'circumstantial evidence. The matrix of the case is that the first accused murdered his wife Yeshoda and the deadbody was recovered from ravine after a period of about one month. It Was in a decomposed state when it was recovered and hence the identification of the deadbody was not immediately possible. Therefore, what is required primarily in the instant case is to find out the proof regarding 'corpus delicti' literally means the 'body of the offence', that is to say, the facts which constitute it. Until the proof regarding 'corpus delicti' is established, the question as to the identity of the culprit may not arise. Legally 'corpus delicti' means the crime apart from the criminal - the deed apart from the doer. In order to establish 'corpus delicti' the Court is bound to examine whether the dead body discovered in this case was that of Yeshoda. It was P.W. 1 who had happened to see the dead body first in the ravine near a place called Nedumpoyil. His evidence has higher degree of probative, value when compared to the evidence of other witnesses inasmuch as he is the first person who saw the dead body. His testimony bestows some what vivid picture of the dead body and the materials found on it. He said, it was a deadbody of a woman having long hair. He had seen blouse (M.O. 2), skirt (M.O. 1), padasaram on the light leg (M.O. 4) and bangle on the right hand (M.O. 5). P.W. 35 Investigating Officer had of course recovered in addition to the above articles, M.O. 3 (brassiers), M.O. 6 (plastic cord) and M.O. 7 (match box). P.W. 1 being a stranger will not normally go very near the dead body and take note of all the articles found on it. However, at present we are concerned with the articles noticed by P.W. 1 on the dead body namely,! M.O. 1, M.O. 2, M.O. 4 and M.O. 5. The probative value of rest of the articles recovered by P.W. 35 will be dealt with later, as we are not immediately concerned with those articles. P.W. 6 Sivaraman is the direct brother of the deceased and P.W. 16 is the mother. Both were brought by P.W. 35 to the office of the Revenue Divisional Officer, Tellicherry where the aforesaid articles, were kept. They easily identified the aforesaid articles noticed by P.W. 1 on the dead body as that of the deceased. They have also tendered evidence in the trial Court in this regard while they were examined. The inference that could be drawn from the oral evidence of P. Ws. 1,6 and 16 coupled with the recovery of M.Os. 1,2,4 and 5 is that the dead body recovered from ravine was that of deceased Yeshoda. Of course, this is only an inferential evidence and not direct evidence. It is apposite to say here that the old rule enunciated by Sir Mathew Hale and Lord Coke js, to the effect that nothing short of direct evidence is sufficient to establish 'corpus delicti'. Sir Mathew Hale held the view 'I will never convict any person of murder or manslaughter unless the facts were proved to be done or at least the body found.' Lord Coke warns the danger of proceeding on 'bare presumptions'. As against this rule of strictness, Sir John Stephen said: 'If the circumstances are such as to make it morally certain that a crime has been committed, the inference that it was so committed is as safe as any other inference.' Straight, J. in Empress of India v. Bhagirath, (1881) 1 LR 3 All 383 departed from the rule of strictness and observed that such a rule once admitted would in some instances render the administration of justice impossible. Therefore the Court said .it is not imperatively essential, in order to justify a conviction for murder, that the 'corpus delicti' should be forthcoming.

The law as to the proof of 'corpus delicti'has been laid down by the Supreme Court in Sevaka Perumal v. Stateof Tamil Nadu, : 1991CriLJ1845 thus:

In a trial for murder it is not absolute necessity or an essential ingredient to establish corpus' delicti. The fact of death of the deceased must be established like any other fact,. Corpus delicti in some eases may not be possible to be traced or recovered.

The apex Court further said that there should be reliable and acceptable evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence although the dead body may not be traced.

5. Another item of material relied on by prosecution in order to establish 'corpus delicti' is Ext. P-29 superimposition report issued by the Assistant Director (Biology) Forensic Science Laboratory. The skull of the deceased (M.O. 13) along with a photograph (Ext. P-28) and a saree (M.O. 14) belonging to the deceased were forwarded to the laboratory for the purpose of superimposition. Ext. P-29 report is issued under Section 293 of the 'Code' and therefore it is a piece of evidence which does not require any formal proof. The superimposition report as such is admissible in evidence. The evidentiary value of report cannot be minimised by reason of the non-examination of the scientific expert who issued the certificate. It is needless to point out, the accused persons have the right to ask for an opportunity to cross-examine the expert in case they did not agree with the conclusions arrived at in such report or the procedure adopted for superimposition. In the present case Ext. P-29 report which is an incriminating piece of evidence was put to the accused during the examination under Section 313. Non-furnishing of details contained in the report to the accused is therefore not fatal to the prosecution case. When the report of the expert is produced and marked as an exhibit the accused cannot argue that he did not get an opportunity to know the contents of the report at any time. In the present case the accused even after the examination under Section 313, did not ask for an opportunity to cross-examine the expert. That being the position, the criticism advanced on this account cannot be countenanced by this Court. We are of the view that no prejudice at all is caused to the accused on this score.

6. Certain collateral attacks are made against the photographic superimposition particularly in relation to the procedure adopted in conducting the said test. In the first place it was contended that M.O. 14 saree and photograph of the deceased (Ext. P-28) were not properly identified before it Was used for superimposition. P.W. 35 Investigating Officer has deposed that M.O. 14 was handed over to him by P.W. 6 the brother of the deceased. P.W. 6 in his evidence stated that the deceased did not take all her belongings while she was going out and this would indicate, some of them have been left behind. It is therefore difficult to assume that M.O. 14 saree produced by her brother (P.W. 6) before P.W. 35 did not belong to her. Ext. P-28 photo in all respects is identical to Ext. P-15. Ext. P-15 photo was identified by P.W. 22 Valsala alias Subaida who was a close friend of Yeshoda. The admission of these photographs in evidence was not objected to by the accused. However, it was argued that the photographs should not be admitted in evidence without examining the person who took the photographs and without producing {he negatives thereof. Reliance was placed on the decision in State of Gujarat v. Bharat alias Bhupendra, 1991 Cri LJ 978. This decision will not however affect the evidentiary value of Ext. P-29 report filed under Section 293 of the Code, in the background of no objection being raised at the time of the admission of the photographs in evidence. Secondly it was contended that M.O. 14 was forwarded to the laboratory by P.W. 35 Investigating Officer and not by the Court. We could not see any substance in this argument inasmuch as M. O. 14 was an item which requires to be preserved with sufficient care for which purpose alone it was directed to be retained with P.W. 35. Thirdly, it was argued that the superimposition was conducted not on the basis of proper observations to be followed in that behalf. This cannot be said so because while conducting the test every scientific aid's described in the text book 'Practical Forensic Medicine' (By Dr. B. Umadethan, M. D.) were scrupulously followed in this case. We have perused Ext. P-29 and noticed the observations made by the Director of Forensic Science Laboratory. After narrating the observations, the Director said in Ext. P-29 thus:

The authometric land marks on the faceand skull were marked and accurately measured and the ratios were calculated using the method of Dr. Chandrasekharan (1971) and compared. The ratios were identical.

The result of the examination is stated in Ext. P-29 thus:

The skull and mandible in turn-l could have belonged to the female whose photograph is given in turn-2.

We have no hesitation, therefore, to reject all the collateral attacks projected against Ext. P-29. In that background, we are of the firm view that 'corpus delicti has been sufficiently proved in this case.

7. The next question that necessarily comes up for consideration is, who is responsible for the death of Yeshoda, either accused 1 to 3 jointly or individually or somebody else. The conclusion that we are to form in this regard solely rests on the circumstantial evidence available in this case inasmuch as there is total dearth of direct evidence. The substance of circumstantial evidence is described by Chief Baron Pullock as this:

Circumstantial evidence means this - when the facts do not directly prove the actual crime but lead to the conclusion that the prisoner committed it.

It is a fundamental rule that in cases dependent on circumstantial evidence, in order to justify an inference of guilt, the incriminating circumstance! must be incompatible with the innocence of the accused and must be incapable oft explanation upon any other reasonable hypothesis than that of guilt and the circumstantial evidence must be of such a character that it should establish the guilt of the accused beyond any reasonable doubt and all possibilities of the innocence of the accused should be excluded. The law on this question is well settled by plethora of decisions of the Supreme Court and various High Courts. However- while appreciating the circumstantial evidence, it is necessary to bear in mind certain distinguished features, subtle distinctions etc. of its nature while applying the same in the facts of a particular case. It is re-iterated by the Supreme Court that in a case of circumstantial evidence all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. However, the question whether all the circumstances pointed out by the prosecutionshould form part of the complete chain leaving no link to miss in order to bring home the guilt of the accused needs consideration in the context of the present case. It cannot be said, the prosecution has established all the circumstances alleged by it against the accused persons in this case. The prosecution in their anxiety to unfold a hidden crime might have brought various circumstances however insignificant they may be, before the notice of the Courtto ascertain its value in assessing whether such circumstances have any direct bearing on the crime to be established. That does not mean the prosecution must at all times establish or prove all such circumstances placed before the Court in order to say, the chain is complete. What is relevant in such situation is,to ascertain what are the proved circumstances and to find out whether such 'proved circumstances' will be sufficient to complete all the links in the chain so as to pinpoint the guilt of the accused. Of course, such 'proved circumstances' must be incriminatory in character. The Supreme Court in Pohalya Motya Valvi v. State of Maharashtra, : 1979CriLJ1310 observed :

'All the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence.

(Italics supplied)

In Kishore Chand v. State of Himachal Pradesh, : 1990CriLJ2289 the Supreme Court observed at page 2293; of Cri LJ:

'The proved circumstances should he of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused.1 They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt.

(Italics supplied)

What we could gather from the above decision is, even in the case of proved circumstances it is not necessary that each circumstance by itself be conclusive. The cumulative effect of 'proved circumstances' is the criterion and such circumstances must form complete chain of events leading to the guilt of the accused. In a decision rendered recently in Prabhudayal v. State of Maharashtra, : 1993CriLJ2239 the Supreme Court has re-iterated four essential ingredients to prove guilt of an accused person by circumstantial evidence which are lucidly laid down in State of U. P. v. Dr. Ravindra Prakash Mittal, : 1992CriLJ3693 . Those essential ingredients are:

(i) That the circumstances from which the conclusion is drawn should be fully proved;

(ii) That the circumstances should be conclusive in nature;

(iii) That all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence;

(iv) That the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.

In the above decision also notable emphasis is made on 'proved circumstances'. The first ingredient dictated above would indicate that the conclusion in a given case shall be drawn from the circumstances 'fully proved'.

8. What are the incriminating circumstances proved against the first accused in the present case so as to bring home the guilt? The circumstances proved against the other accused persons will be discussed separately. The circumstances available as against the first accused can conveniently be grouped as coming in different topics us under:

1. 'Corpus delicti'

2. Motive

3. 'Last found together' theory.

4. Medical evidence.

5. Recovery of material objects.

6. Extra judicial confession.

Of the above, the first topic relating to 'corpus delicti' has been discussed herein before. The rest of topics are dealt with separately hereunder.

9. Motive: (1) Looked at from psychological stand point motive is the particular stimulus that arouses a striving towards some definite end. Motive pervades in all human actions and behaviour but difficult 'to determine its true character. The inferences are invariably drawn applying the legal tests but they need not be accurate in all given situations. The Supreme Court in Krishna Pillai Sreekumar v. State of Kerala, : AIR1981SC1237 remarked that the variations in human nature are being so vast murders are actuated by much lesser motives. The absence of motive is of no consequences when cogent and reliable evidence as to the guilt of the accused is available. However, under Section 8 of the Evidence Act any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Therefore the evidence of motive is always relevant and admissible, although it is not necessary for the prosecution to offer evidence of motive, inasmuch as the motive does not form part of essential ingredients of the offence of murder. On the question of motive, Wharton says:

An enquiry in this regard is often of great importance, particularly in cases of circumstantial evidence. It assists in fixing the crime upon the proper person and, in some cases is strongly instrumental in determining the degree of the offence.

The Supreme Court ardently projects the impressive role of motive in evaluating the circumstantial evidence to prove the offence of murder in Mulakh Raj v. Satishkumar, : 1992CriLJ1529 as this at page 1536; of Cri LJ :

Undoubtedly in cases of circumstantial evidence motive bears important significance, Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence.

Therefore it cannot be said that the motive, is not a link in the chain of circumstances pointing to the guilt of the accused when it is clearly and cogently established. But the Supreme Court in Mulakh Raj's case supra has also laid down 'the absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against prosecution case.' The reason is that the motive is not an essential ingredient of an offence and 'proof of motive is never an indispensable for conviction.

(2) The live living of Ravindran and Yeshoda twitched with a love affair culminated in a registered marriage in August, 1986. Neither the parents of Ravindran nor of Yeshoda adored this marriage relationship. There were wrangles on either side and also as between. The matter did not end there. An alluring offer came from the mother to her son Ravindran with a strong string attached, namely, she will purchase a van for him provided he agrees to divorce Yeshoda to which he did not readily yield. This offer according to the prosecution was the driving stimulus for Ravindran to extirpate the life of Yeshoda. This signifies the motive which locked up in the mind of Ravindran. According to us, the prosecution had brought out overwhelming circumstances to prove motive as a connecting link in the chain of events, leading to the guilt of the culprit.

(3) Ravindran and Yeshoda were living as husband and wife ever since August, 1986. The marriage between them was not a customary marriage according to religious rites. It was marriage supported by document. Ext.-13 was the registered marriage deed which was proved by P.W. 20, the Sub-Registrar at Uliyil. He has deposed that the above document was presented before him by both Yeshoda and Ravindran together. P.W. 22 Valsala alias Subaisa who had undergone training in tailoring under Yeshoda stated before Court that after the marriage Yeshoda and Ravindran went to her house at Madappally, near Badagara and stayed with her for two days. The circumstances relating to the marriage between Yeshoda and Ravindran and the way of their life thereafter as husband and wife are firmly established by Ext. P-13 document and the oral evidence of-P.Ws. 20 and 22. The evidence of P.W. 6, P.W. 16, P.W. 23 etc. convincingly supports the above conclusion.

(4) The circumstances leading to motive part of the offence as reflected subsequent to the marriage between Ravindran and Yeshoda can be outlined thus: After the marriage Yeshoda purchased five cents of land at a place called 'Kappad' and constructed a small house out of her funds. Prior to the marriage Yeshoda was residing with her brother and mother at a place called 'Payam Mukku' and Ravindran at a place called 'Thillenkeri'. Yeshoda ekes out her living by tailoringwork and Ravindran, by jeep driving. Yeshoda and Ravindran were staying together in the newly constructed house at Kappad for a period of about one year. They were living as husband and wife all along. Their life at Kappad though cordial from the beginning, later ended in squabbles. At the time of Assembly election in the year 1987 Ravindran took Yeshoda to her house at Payam Mukku and he did not thereafter visit her house. One day Ravindran told her brother Sivaraman that he would be divorcing Yeshoda. Situation thus became unpleasant. Sivaraman replied aptly. Some time later Yeshoda went to the house of Ravindran at Thillenkeri to meet Ravindran, but she was not allowed to enter the house by inmates there. The mother of Ravindran rebuked her profusely. Yeshoda returned home with mental agony. Ravindran wished to divorce Yeshoda and also thought of second marriage. Yeshoda resisted these attempts. Finally Ravindran agreed to purchase a small plot at Badagara and construct a house for Yeshoda for her separate residence with one of her brothers. But she persisted for continued marital relationship. One day Yeshoda received a letter from Ravindran asking her to meet him at Thillenkeri. Readily she went and that was on 1-3-1988. She came back to her house, saying that Ravindran agreed to visit her once in a week at the house to be constructed at Badagara and provide maintenance. Ravindran informed her to wait at Kakkangad on 3-3-1988 to proceed to Badagara for the proposed purchase of land. He also informed her that he would be bringing a jeep to pick up her at Kakkangad. Believing all these Yeshoda left the house at about 8 a.m. on 3-3-1988 and went to Kakkangad. Jeep K.L.A. 1170 came at the appointed time and Ravindran in the company of other accused persons took Yeshoda inside the jeep at Kakkangad and started their journey which finally ended in the murder of Yeshoda by Ravindran. These circumstances effectively and cogently proved by the oral evidence of P. Ws. 6 and 16. P. W. 23 Lakshman is a person living in an adjacent house of Yeshoda at Kappad. He speaks of the nature of relationship between Yeshoda and Ravindran, during their stay at Kappad. This witness also gives testimony as to the alluring offer made by the mother of Ravindran that she will purchase a van for Ravindran provided he agrees to divorce Yeshoda. The circumstances relating to the attempt of Ravindran to kill Yeshoda on an earlier occasion were stated by P.W. 15 as thus: The incident was in January, 1988 and on that particular day the witness (PW 15) was travelling with Ravindran in a jeep. Ravindran was driving the vehicle. On seeing Yeshoda coming on the side of the road Ravindran made an attempt to kill her by hitting her with the jeep. Due to the timely intervention of the witness his attempt was spoiled and Yeshoda escaped. The contention is that P.W. 15 was a witness whose extra judicial confession was disbelieved by the Sessions Court and that therefore his evidence could not be accepted as reliable. What is seen to have been rejected by the Court below is only his evidence relating to the statement of extra judicial confession made before the Magistrate under Section 164. The statements relied on here are not part of the statements involved in the extra judicial confession, witness was narrating an incident which took place in his presence. No reason has been pointed out to disbelieve his evidence except to the extent relating to the extra judicial confession. The non-objeotionable part of the evidence of P.W. 15 corroborates the circumstances relating to motive as brought out from the evidence of P. Ws. 6, 16, 23 etc.

10. 'Last found together' theory.

(1) What is meant by this theory? It is only this: In whose company the victim was found together last. It may be a company of one or more persons. The person or persons in whose company the Victim was found together last may be innocent and no involvement in the crime can be attributed to him or them. The presence of 'a victim in the company of another, may be accidental. In the ordinary course of social life the persons may be some times faced with strange situations and miraculous coincidences which are difficult to explain. Therefore the 'last found' together' theory is not an absolute rule or inflexible formula but it is totally dependent on the facts of each case. When the motive of a person or persons to commit an offence is sufficiently established this rule assumes much importance. An view of the principles laid down by the Supreme Court in Gambhir v. State of Maharashtra, : 1982CriLJ1243 , a Division Bench of this Court observed that all misconceptions as to 'last found together theory' in murder cases resting on circumstantial evidence have been removed. See Gabriel v. State of Kerala, 1982 Ker LT 772 : (1983 Cri LJ 94). The Supreme Court said in the decision supra: 'The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

(2) The witnesses who speak for the position that Yeshoda was found last in the company of Ravindran and others are P.Ws. 7 and 8. These two witnesses were the persons in the locality and Yeshoda and Ravindran were known to them. P.W. 7 resides near Payancherry Reading Room. In so far as 'last found together' aspect the evidence of P.W.7 is to this effect: On 3-3-1988 at about 9.30 a.m. while he was waiting for a bus at Payam Mukku, jeep KLA 1170 came from Peravoor side Devasia (P.W. 8) who was also waiting for the bus along with him stopped the jeep by hand signal and asked which direction the jeep was proceeding. While the jeep was stopped there he went near the jeep and at that time he (P.W.7) saw all the accused persons and Yeshoda sitting in the jeep. Third accused who was driving the vehicle replied, they were going to Badagara. He did not see Yeshoda thereafter. This evidence of P.W. 7 appears to be a true picture of what he saw. The evidence of P.W. 8 almost falls in line with that of P.W. 7. Though they have been cross-examined nothing effective has been brought out to disbelieve their evidence. On the other hand in reply to questions put in cross-examination P.W. 7 has specifically said that Yeshoda and Ravindran|W,ere sitting in rear pf the jeep. It was further ,said that Yeshoda occupied the right seat and Ravindran, the left seat. P.W. 8 said in chief examination that Gopalan, (second accused) was sitting on the front seat and third acpused was driving the vehicle. The picture of the (scene is distinctly clear. Thus it is well established that Yeshoda was in the company of the three accused persons in a running vehicle. Where did they go and what did they do with Yeshoda? These are the poignant questions in consonance with the innocence of the accused to be answered. The accused persons are duty bound to explain what happened to Yeshoda after she was in their company, and such a duty is, so high in the case of the first accused who is none other than her husband. A Division Bench of this Court in Manjeri Rajan v. State, 1986 Ker LT SN 53 held:

It is proved beyond doubt that the deceased was last seen alive in the company of the accused who had the motive to do away with her because of her insistence that he should marry her. He had the duty to explain what happened to the deceased after she was in his company.; When the evidence was put to him he only made a flat denial which means that he was not in a position to give any explanation at all. This is evidently an incriminating circumstance which leads only to the inference that he is the person guilty of murder.The evidence in so far as the above aspect of the matter was put to the accused during the examination under Section 313. But no explanation was forthcoming from the accused persons. The defence has no case not even a suggestion that the accused persons allowed her to get down from the vehicle or they dropped her somewhere. These are the reasonable doubts normally arising in the mind of a prudent man when prosecution reveals that Yeshoda was murdered on the night of that day itself. Such reasonably doubts are always expressed consistent with the innocence of the accused. The responsibility of first accused is so onerous as he alone wanted her to wait at Kakkangad on that morning at about 8 a.m. to go together with him to Badagara in the jeep he would be bringing. If the said responsibility has been discharged it would have been possible for this Court to examine any hypothesis pointing to the innocence of the accused persons. Thus the probability of any other person coming in their company or Yeshoda going into the company of others must be ruled out.

(3) The vehicle KLA 1170 is a taxi jeep and that is what evidence reveals. P.W. 4 is the salesman of a petrol pump in Iritty and P.W. 5 is its manager. Their evidence reveals that twenty litres of diesel was sold by them to fill in jeep KLA 1170 and that was evident from the bill book. Ext. P-4 is the bill book which was recovered under Ext. P-3 mahazar and sale bill number is 10090 which is seen to have been issued on 3-3-1988. The sale bill does not indicate the time at which the diesel was purchased; but P.W. 4 says it may be round about between 10.45 and 11 a.m. on the basis of certain other bills issued on that day. Witness has no definite idea as to the time. The vehicle K.L.A. 1170 was next seen at a petrol pump at Tellicherry by name 'Gemini Service' station, and from there ten litres of diesel was purchased. P.W. 9 is the Clerk of the service station. The witness stated diesel was purchased during the day time, may be at about 9 or 9.15 a.m. as per bill No. 93752 (Ext. P-5(a).)

(4) On behalf of the accused, it was argued by the learned counsel inasmuch as there is apparent contradictions in their statements as regards the time at which the diesel was filled in the jeep from their respective petrol pumps. The counsel argues, the vehicle K.L.A. 1170 had a ubiquitous posture which cannot be believed. In other words the point developed' is that jeep KLA 1170 was seen at 'Payam Mukku' between 9.00 and 9.30 a.m. as per the evidence of P.Ws. 7 and 8, at Tellicherry between 9.00 and 9.15 a.m. as per the evidence of P.W.9 and at Iritty between 10.45 and 11 a.m. as per the evidence of P.W. 4. This is an impossibility, counsel contends, in the normal course of events. The distance between Payam Mukku and Tellicherry is about 45 kilometres. The relevant circumstance revealed from the evidence of these witnesses is that jeep K.L.A. 1170 was seen by different persons during the day time on the day of occurrence at 'Payam Mukku', 'Iritty' and 'Tellicherry'. It is true that the evidence of these witnesses will not agree with each other as far as the time at which the vehiele was found at different places. The evidence reveals that the time mentioned by the witnesses is approximate. The witnesses are giving the time from their memory. They were examined in Court after about seven months of the date of occurrence. The short of memory is a human fraility. The memory involves the power of retention of facts in human mind and its reproduction when occasion demands. But such power varies from; individual to individual. Mathematical precision or exactness cannot therefore be expected at all times while reproducing the facts from memory. As far as this case is concerned, the time factor is not of much relevance. One thing is certain that the jeep K.L.A. 1170 was found during the forenoon of 3-3-1988 at Payam Mukku, Iritty and Tellicherry. This is an incriminating circumstance against the culprits which is sufficiently proved by the evidence of P.Ws. 7, 8, 9 and 4.

(5) Now we have before us two other witnesses examined by the prosecution to prove certain attendant circumstances relating to the movement of jeep K.L.A. 1170. They are P.Ws. 10 and 11. P.W. 10 is running a hotel at Talappuzha by name 'Grant Hotel'. He was examined to prove that the accused persons who came in a jeep had taken tea from his hotel while returning from Manantoddy, at about 5 p.m. P.W. 11 is an employee of a hotel at Kannavam called 'Asoka Hotel'. He was examined for' eliciting that the accused persons had purchased food packets from the hotel at about 2 p.m. The learned Sessions Judge did not place reliance on these witnesses. It was specifically pointed out by the trial Court that no circumstance had been brought in to disbelieve the evidence of these witnesses. However it is an admitted case that there was no prior test identification parade before identifying the accused persons by witnesses in Court.

(6) A Division Bench of this Court in Chandran v. State of Kerala, 1987(1) ker LT 391 : (1986 Cri LJ 1865) after an elaborate consideration of the entire question held that substantive evidence of identification of an accused is the evidence given and. identification made by a witness in Court. In that connection, the Court further held thus:

Successful identification parade renders it safe for the Court to act upon the identification made in Court. However it cannot be said that the absence of test identification parade is fatal in all cases. Assurance could be available from other sources and circumstances.However the Supreme Court in the decision in Mohanlal Gangaram Gehani v. State of Maharashtra, : [1982]3SCR277 observed that in the absence of prior test identification parade the evidence of the witnesses would become valueless. This observation is made in the following factual situation.

Thus, as Shetty did not know the appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in Court.It cannot be said that the entire evidence of the witness in the absence of test identification parade is unreliable and cannot be accepted. It largely depends on the circumstances 'lending assurance to the conscience of the Court' in a given situation. The Court can evaluate the entire evidence of such witnesses in all respects bearing in mind the principles aforestated. There is nothing wrong in relying on the evidence of the witness to the extent indicated above if the Court is satisfied that such reliance can be had depending on the credibility of the witness and conscience of the Court.

(7) 'Kannavam' locates on the route Tellicherry-Manantavady and 'Ashoka Hotel' where P.W. 11 is woking as hotel boy is at Kannavam. His evidence reveals this: There were in all four persons in the jeep which was stopped near the hotel at about 2 p.m. One person from'the jeep came out and purchased four packets of food. It was the witness who prepared four packets of food. Out of four packets, two 'were taken by the person who came to the hotel and the remaining two were taken by the witness to the jeep stationed nearby. He saw two persons sitting on the rear of the jeep, one male and other female. He handed over the two packets to first accused. Third accused was sitting in the driver's seat and second accused is the person who came to the hotel and took two packets, thus ends his evidence. This identification of the accused persons by the witness cannot be accepted, in the absence of identification parade - so urges the counsel for defence. Assuming it to be so, that part of the evidence relating to identification of the accused persons can alone be affected. The test of his evidence stands in tact. It has to be pointed out that the evidence of P.W. 11 materially supports the picture as to how the four persons were sitting in the jeep while they started from, Payam Mukku. P.W. 11 finally said in chief examination that after obtaining the four food packets, the jeep proceeded to the direction towards Manandavady.

(8) The place called 'Talappuzha' is on the route Tellicherry-Manantavady and is in between Nedumpoyil and Manantavady. The 'Grant Hotel' run by P.W. 10 is at Talappuzha. The summary of the evidence of P.W. 10 is this: The jeep was stopped near the hotel round about 5 p.m. and it was corning from Manantavady. Two or three persons who came in the jeep took the tea from the hotel. One woman was sitting in the jeep almost tired arid exhausted. It was third accused who drove the vehicle. This evidence of P.W. 10 can be also accepted except to the extent of identification of the accused persons for the same reason as in the case of P.W. 11. Here the question may be asked as to what would be the evidentiary value of the testimony of P.Ws. 10 and 11 without having the identification of the accused persons. The incriminating circumstances available from the evidence of P.Ws. 10 and 11 were put to the first accused in the examination under Section 313. However no explanation was forthcoming except the total denial. That P.Ws. 10 and 11 saw one lady and three others in the jeep in the present context is a relevant factor to be taken into consideration particularly when the evidence of these witnesses is capable of leading to an inference*that the accused persons with Yeshoda were seen in various places on the date of occurrence till sun set.

(9) From the above discussion it can be seen that the jeep in question driven by third accused carrying Ravindran and Yeshoda and also second accused reached Kannavam at about 2 p.m. and it proceeded to Manantavady. It appears that the original idea of going to Badagara was since dropped. There is no evidence in this case that they went to Badagara. That would reveal that it was only an artifice to get Yeshoda in the company of Ravindran giving her false hope. From the evidence it has also come out that they went to Manantavady to see certain places. May be Ravindran selecting a proper and convenient place to execute his evil design kept in obliqueness. It appears, Ravindran had given fresh assurance to Yeshoda that he would purchase land at Manantavady instead of Badagara. What could be inferred from the evidence is that after visiting Manantavady the jeep returned and reached Talappuzha at about 5 p.m. The scene of occurrence is situated near the 36th K. M. stone near Nedumpoyil. What is seen here is adjusting time so as to reach a convenient place after sun set. The place of occurrence is a forest area where gorges are found here and there. P.W. { who first went to the scene deposed that the dead body was found in a ravine on the left side of the road and there were no houses nearby. The first nearest house to the place of occurrence is the one where P.W. 3 resides. According to P.W. 3 the distance between his house, and the place where the dead body was found is 2 kilometres. The actual scene of occurrence is an uninhabited area. That was found to be a very convenient place to cause the murder of Yeshoda during the night time. That was the finale of a wellarranged plan master-worked by Ravindran. That deceased was last found together in the company of the accused persons was sufficiently proved. Her presence in the company was neither accidental nor coincidental. It was the result of the execution of a strong motivation cultivated in the mind of Ravindran. The only conclusion that we can have from the multi-faceted circumstances available in this case is that Yeshoda was murdered during that night by Ravindran and dead body was thrown into ravine and it was then removed to near the stream.

(10) Subsequent conduct of Ravindran is also a relevant factor to be examined. Some of the witnesses said, Yeshoda was never found after she had left in the jeep along with Ravindran and others. Ravindran had not made any enquiry about Yeshoda after 3-3-1988. That is a very strange conduct which is not expected of him as husband in the normal course. Even after P.W. 23 told Ravindran that Yeshoda was not there in the house, he did not further make any enquiry about her. The reason is quite obvious; he alone can see the futility of such attempts.

11. Medical evidence

(1) The post-mortem examination of the body was conducted by Dr. N. G. Ravi, Asst. Professor and Deputy Police Surgeon attached to the Department of Forensic Medicine, Medical College, Calicut. He has been examined in this case as P.W. 19 and the postmortem certificate issued by him is marked as Ext. P-10. While issuing Ext. P-10, P.W. 19 could not give the exact cause of death and therefore he reserved the opinion pending the result of chemical analysis. Ext. P-11 is the report issued by the Asst. ChemicalExaminer to Government under Sectin 293 of the 'Code'. Ext. P-11 reveals that no poison was detected in the blackdried mass of tissues collected from the region of chest cavity. Ext. P-l2 is the final report issued by P.W. 19. P.W. 19 said that it was a body of a female aged about 30 years, 152 cms. tall markedly decomposed and partly skelitonised. He says 'Rigor mortis passed off from the entire body. Postmortem staining could not be made out.'The impressions of the doctor are extracted below:

(1) The deceased has sustained head injury which if ante-mortem could result in death.

(2) There is a possibility of blood being disappearing due to post-mortem interval and because of eating and licking by wild animals.

(3) Post-mortem interval will be more than fifteen days and less than three months.

(4) The injuries if ante-mortem could be caused by hitting with a stone like M.Os. 11 and 12.

(5) Nobody can say whether there was violence on the neck or not.

(2) It is necessary to point out here that the Doctor has not given a definite opinion as to whether the! injuries found on the dead body are ante-mortem or post-mortem. But he said that the head injury sustained by the deceased could result in death. However there are circumstances in this case to pin-point that the injuries were ante-mortem, M.Os. 11 and 12 are two stones, one big and the other small, recovered from the scene. It is difficult to believe that after the death, the stones were used for hitting the body. The doctor says that injuries could be caused by hitting with stones like M.Os. 11 and 12. In these circumstances it would be clear that first accused had used some hard material for hitting the head in the process of killing Yeshoda. That means, the injuries can only be ante-mortem. Doctor's evidence reveals that there were skull injuries. That being so the death of Yeshoda can only be homicide. The doctor has opined that he could not say that there was violence on the neck of the deceased. This may be so because it is impossible to ascertain the symptoms of violence in view of the decomposed nature of the body. However, for that reason murdering of Yeshoda by strangulation cannot be ruled out.

(3) On the basis of the opinion of the doctor, the learned counsel advanced an argument that the death could have taken place between 3-3-1988 and 15-3-1988. According to the prosecution the death of Yeshoda could have taken place on 3-3-1988. However the dead body was found only on 30-3-1988. The post-mortem in this case was conducted on 1-4-1988. The doctor said, the post-mortem interval will be more than fifteen days and less than three months. So the argument is that it is difficult to connect the accused persons with the crime as there is a gap of at least twelve days. The learned counsel for the accused relies on the decision of the Supreme Court in Gambhir v. State of Maharashtra, : 1982CriLJ1243 where it is observed thus:

Accepting that the accused was seen in the evening of 26th Feb. in the company of Laxmi, in the absence of any positive evidence about the probabale time of death, it is difficult to connect the accused with the crime as there might be a long gap between the accused being seen in Laxmi's company and the time of the death of the three deceased. Many more persons might have come in between.It was a case Where it was sufficiently proved that besides Gambhir (accused) other persons also used to come to the house of Laxmi (deceased) in the absence of her husband. Kesavan Govinda Rao in whose service Namdeo (husband of the deceased) previously was, also used to go to the house of Laxmi to enquire about her children. The position in the present case is totally different. Here the deceased Yeshoda was in the company of three persons in a running jeep. Thereafter her whereabouts were not known. There is nothing in evidence in this case that deceased Yeshoda left the company of the accused persons at any time during their journey. If she was free after the journey on 3-3-1988 it would be possible to say 'many more persons might have come in between'. There is absolutely no evidence much less a suggestion that the deceased was a free agent at any time after she had been kept in the company Of the accused persons on 3-3-1988 Before she was murdered during the same night. That being so, the probability that persons other than the accused should have caused the murder of Yeshoda which of course is consistent with the innocence of the accused shall be totally out of place.

(4) Counsel then relies on a Division Bench decision of this Court in Cheerakuzhiyil Abdul Kareem v. State of Kerala (Cri. Appeal No. 161/88). That was a case where the doctor who conducted autopsy on 17-7-1987 at 3 p.m. said that death would have happened more than two days prior to the autopsy. In other words death could have happened either on the forenoon of 15th or on the 14th also. According to the prosecution, the appellant therein the husband of the deceased who was living like a whose murdered her on 13-7-1987. The Division Bench said that there was no evidence to show that the death of the deceased took place on 13-71987. Decomposed dead body of the deceased was found in a well at Trikalangad on 17-7-1987. There was evidence that deceased and the appellant travelled together on 13-7-1987 up to Karakkad and the appellant alone had travelled back to Manjeri. Thus the deceased was not in the company of the appellant after 13-7-1987. In other words 'many more persons might have come in between' as observed by the Supreme Court in Gambhir's case, : 1982CriLJ1243 supra.

12. Recovery of material objects.

(1) Under this head there are two sets of recoveries, first relating to the articles recovered from the dead body of the deceased and second relating to articles recovered under Section 27 of the Evidence Act. We have already found that M.O. 1 (skirt), M.O. 2 (blouse), M.O. 4 (padasaram on the right leg) ana M.O. 5 (bangle on the right hand) recovered by P.W. 35 from the dead body were identified by P.Ws. 6 and 16. They also identified M.O. 3 (brassiere) and M.O. 5 (rolledgold bangle). M.Os. 1 to 7 were recovered as per Ext. P-8 inquest report. M.O. 8 golden tali, M.O. 9 padasaram, M.O. 10 ladies wrist watch, M.O. 11 granite stone and M.O. 12 granite stone are the recoveries made under Section 27. P.W. 6 is the direct brother who resides with Yeshoda in their residence at Payam Mukku along with their parents. He deposed that Yeshoda left their house at 8 a.m. on the fateful day to go to Badagara as directed by Ravindran. He could very well identify M.O. 1 skirt, M.O. 2 blouse, M.O. 4 padasaram, M.O. 5 bangle and M.O.S. tali. He also gives distinct specification of certain articles. P.W. 16 mother of Yeshoda during the examination in Court easily identified M.O. 1 to M.O. 3 dresses, M.Os. 4 and 9 padasaram, M.O. 5 bangle, M.O. 8 tali and M.O. 10 watch, which were worn by the deceased while leaving the house on 3-3-1988. We do not see any reason to say that the abovesaid articles identified by P.Ws. 6 and 16 do not belong to the deceased. Their evidence is also supported by the testimony of P.W. 23. Therefore the recovery of abovesaid articles is an incriminating circumstances/ against the first accused.

(2) There are two confession statements by the first accused, Exts. P-30 and P-31. Ext. P-30 relates to the recovery of M.O. 10 wrist watch and Ext. P-31 relates to the recovery of M.O. 12 granite stone, from the area where the dead body was found. The other recoveries under Section 27, namely, M.O. 8 golden tali and M.O. 9 padasaram and M.O. 11 stone are related to second accused and the eviderv tiary value in respect of those articles will be discussed separately while examining the liability of second accused. M.O. 10 wrist watch was recovered as per Ext. P-20 rnahazar prepared by P.W. 35. M.O. 10 watch was identified by P.W. 16 who deposed that it belongs to his deceased daughter Yeshoda. This was also identified by P.W. 6. This is a strong incriminating circumstance pointing to the guilt of the first accused.

(3) M.O. 12 stone was . recovered by P.W. 35 as per Ext. P-26 mahazar. Recovery of M.O. 10 wrist watch and M.O. 12 stone on the basis of the confession statement of the first accused was seriously challenged by the learned counsel. The argument is that these two recoveries cannot be treated to be incriminating circumstances against the first accused inasmuch as the essential requirements under Section 27 of the Evidence Act have not been satisfied. 'The essential ingredient of Section 27 is that the information given by the accused must lead to the discovery of the fact which is a direct outcome of such information. Secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused. Thirdly the discovery of the fact must relate to the commission of some offence.' See Jaffer Hussain v. State of Maharashtra, : 1970CriLJ1659 . The decision of the Supreme Court in Pohalya Motya Valvi v. State of Maharashtra, : 1979CriLJ1310 is to the effect that the recovery of a weapon used in a murder becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the accused who gives the information leading to its recovery was the person who concealed it. A Division Bench of this Court in Mohanan Kani v. State of Kerala, 1992 (2) Ker LT 839 observed thus:

Recovery of incriminating articles pursuant to the information given by the accused is an important piece of evidence against him. The nature of the recovered articles, the manner of their acquisition by the accused, on the basis of whose information they were recovered, the place of their concealment, length of the intervening period from the disappearance of the article from the owner and its recovery are some of the crucial aspects to be adverted to by the Court.

Whether the circumstances that are available as a result of the recovery of M.O. 10 wrist watch and M.O. 12 stone will amount to incriminating circumstances against the first accused will have to be tested in the backdrop of the principles laid down by the decisions referred to above. Ext. P 20 is the scene mahazar evidencing the recovery of M.O. 10 wrist watch and PW 25 is the mahazar witness. While questioning, the first accused admitted that the watch was kept on the top of a pillar in a cattle shed situated north east of his house and he would show it if he was taken there. Pursuant to the aforesaid statement first accused was taken to his house and he had shown the place where the watch was concealed and on the basis of that watch was recovered. This recovery is incriminating because the element of criminality lies in the authorship of the concealment. A fact has been discovered that the watch was concealed on the top of the pillar of the cattle shed to his knowledge. This incriminating circumstance is an important piece of evidence against the first accused. The watch recovered was identified by PW 16 and it was cogently established that it belongs to deceased Yeshoda. The recovery of watch was witnessed by PW 20. Therefore we have absolutely no doubt in accepting the recovery of M.O. 10 wrist watch as an incriminating circumstance pointing unerringly to the guilt of the accused.

(4) The recovery of M.O. 12 granite stone stands on a different footing. That was also recovered pursuant to Ext. P 31 confession statement of the first accused. Ext. P 26 is the scene mahazar. Ext. P 31 is to the effect that the stone and the place to which it was thrown will be shown if the accused was taken there. The stone was thrown into an open place. It was not concealed anywhere. Therefore it is difficult to say that the ingredients of Section 27 have been complied with in this case. Of course the granite stone was recovered by PW 35. In fact stone was lying at a place where the deadbody was found. If there was any such granite stone it would have been recovered by PW 35 at the time of inquest along with other articles. Therefore it cannot be said that the recovery of M.O. 12 stone is valid. We cannot therefore hold that the recovery of M.O. 12 stone is an incriminating circumstance against the first accused. This will remain as a circumstance which the prosecution cannot prove; but that by itself will not dislodge the chain of proved circumstances pointing to the guilt of the accused. The learned Sessions Judge placed no reliance on M.O. 12 granite stone, it may be men- tioned here.

13. Extra-judicial confession.- (l) One of the note-worthy pieces of evidence in this case is the extra-judicial confession made by one C.V. Kunhiraman under Section 164 of the Code and his testimony before the court as PW 15. Learned Director General of Prose- cution, Mr. Ratna Singh very candidly argued that the entire prosecution story gets a valuable corroboration from the testimony of PW 15 and that the rejection of his evidence by the learned Sessions Judge cannot be justified. The Supreme Court in Rahim Beg v. State of U.P., : 1972CriLJ1260 observed:

'The evidence of extra-judicial confession is a weak piece of evidence.

Of course, this observation was made by the Supreme Court in the following factual situation (at page 1264 of Cri LJ):

Mohammed Nasim Khan (prosecution witness No. 4) belongs to another village. There was no history of previous association between the witness and two accused as may justify the inference that accused could repose 'confidence in him. In the circumstances it seems highly improbable that the two accused would go to Muhammed Nasim Khan and , blurt out a confession. It is also not clear as to why the two accused should try to run away on seeing the police party coming with Muhammed Nasim Khan if Mohammed Nasim Khan had gone to the police at the request of the accused.

The facts of the above case are very clinching and it can only be said in the said circumstances that the evidence adduced by the prosecution on the basis of extra-judicial confession is only of 'frail nature' and does not have the capacity to inspire confidence. This would indicate that the circumstances of each case may require careful evaluation. The 'weak piece of evidence' does not mean, the evidence as such is inadmissible nor wholly unreliable. The evidence of extra-judicial confession may be 'weak' but if it corroborates the prosecution case which can otherwise be established, probative value to such an extent be given to it, provided the circumstance of the case so warrants.

(2) Ext. P 9 is the confession statement given by PW 15 before the learned Magistrate. The substance of the statement is broadly to this effect: Deponent (PW 15) knows Ravindran (first accused) who resides at Thillenkeri and his wife Yeshoda. Deponent had worked as driver in jeep KLC 8285 which belongs to Ravindran till the end of March 1988. Ravindran told him that he took Yeshoda to Wynad in taxi jeep KLA 1170 on 3rd March, 1988, saying that he would purchase lands on her behalf. Yeshoda was strangulated and killed at precipice and deadbody was thrown into ravine. This was done because Yeshoda did not agree to dissolve the marriage. This disclosure statement was amply testified by PW 15 in his evidence. PW 15 further stated that he met Ravindran in June 1988 and he (Ravindran) took him to an arrack shop. They consumed liquor together. While both of them were proceeding to the house Ravindran disclosed to PW 15 the entire incident leading to the murder of Yeshoda. Ravindran and PW 15 were friends and what is seen here is that the guilty mind of Ravindran blurted out, may be under the influence of alcohol. The incriminating circumstances available in consequence of extra-judicial confession made by PW 15 were put to the accused in examination under Section 313. However no explanation was forthcoming from the accused except the formal denial. The evidence of PW 15 is more or less similar to the prosecution story; however its evidentiary value is limited. We are not persuaded to hold that the evidence of PW 15 in so far as it relates to extra-judicial confession by itself is an incriminating circumstance against the accused. It may be a situation in favour of the prosecution if the guilt is otherwise established by proved circumstances. However, it cannot ordinarily be used for corroboration unless it passes the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed as observed by the Supreme Court in Heramba Brahma v. State of Assam, : 1983CriLJ149 . But in a later decision the apex court in Baldev Raj v. State of Haryana,(1991) 1 SCC (Crl) 659: (1990 Cri LJ 2643) held:

It is true that the court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the court should not accept the evidence, if not the actual words but the substance were given.'

The extra-judicial confession as such is not reproduced in exact words or in words as nearly as possible in this case. So also the motive for the confession is not established. However, the evidence of PW 15 stands except to the extent it relates to the extrajudicial confession.

14. The circumstances unerringly pointing towards the guilt of the first accused as revealed from the topic wise discussion we had herein before in respect of the essential requirements in a case based on circumstantial evidence, are congently and unmistakably established. These are the circumstances which must bring home the guilt of the first accused. These circumstances which are sufficiently proved also provide a complete chain, no link of which is missing in any manner. However, learned counsel Sri Vijayabhanu on behalf of the accused argued that the link is broken in as much as there is material contradiction between the statements made by PW 6 and PW 16. According to him, the contradiction goes to the very root of the prosecution case. PW 16 deposed in chief examination that Yeshoda was taken to her house by Ravindran at the time of Assembly election in the year 1987 (March 1987) and thereafter he did not visit her. During the cross-examination PW 16 said that Yeshoda did not go any where else even for a single night. The learned counsel submits, Yeshoda was not in her house during the relevant period so that PW 6 and PW 16 could see her leave or could Yeshoda tell PW 6 what first accused told her. PW 6, also deposed that at the time of his marriage on 20-6-1987 Yeshoda was staying at Kappad and she did not come to his marriage. PW 16 also speaks that she was not invited to the marriage. This will not lead to a conclusion that during the relevant period Yeshoda was not staying with her parents at Payam Mukku. In cross-examination PW 16 stated that at the time of marriage, Yeshoda was staying at Kappad along with his son Babu. The witness did not say that even after the marriage Yeshoda did not come to her house or continued to stay at Kappad. If there is any such statement by PW 16 this court could have assumed that at the relevant time Yeshoda was staying at Kappad. There is nothing to suggest that after the marriage of her brother PW 6, Yeshoda did not return to her house and stay there. The statement of a witness in court has to be read and understood as a whole. One sentence picked up from deposition in court cannot be read in isolation. It should be read along with other statements obtained during the examination. That being so, we cannot see any error much less fundamental which is capable enough to break the chain of circumstances. Further, this question hasi no direct bearing on the chain of circumstances. It is undoubtedly a distant and remote circumstance. In order to say that certain circumstances are also links in the chain of events it should be direct and proximate. The most important link in the chain of circumstances is that Yeshoda left her house at 8 a.m. on 3-3-1988 to Kakkangad and joined the company of Ravindran and others in the jeep KLA 1710. This circumstance as pointed out above has been sufficiently proved. Therefore we are not prepared to agree that the chain of circumstances has been broken as contended by the counsel.

15. From the medical evidence along with other attendant circumstances discussed herein before we have no hesitation in holding that the death of Yeshoda is a homicide amounting to murder. It cannot under any circumstances be assumed to be a natural death. Such an hypothesis should be ruled out in view of the circumstances dealt with under the medical evidence. In view of the circumstances proved in this case we are convinced that first accused shall be held liable for the murder of his wife Yeshoda. Therefore the conviction of the first accused under Section 302, I.P.C. and the sentence thereon by the learned Sessions Judge are confirmed.

16. The learned Sessions Judge also convicted the first accused under Section 201, I.P.C. The ingredients of this section are sufficiently satisfied in this case. It is proved that after having committed the murder the deadbody was thrown into the ravine with an intention to efface the evidence. Normally it is difficult for any person to trace out the place where the deadbody was thrown. In this case dead body happened to be traced out only because foul smell from decomposed deadbody, spread out in the area. Thus it is sufficiently established that the first accused caused the evidence regarding the commission of murder to disappear with an intention to escape from the clutches of legal punishment. Therefore the conviction and sentence under Section 201, I.P.C. ordered by the trial court against the first accused are only to be confirmed. We do so.

17. The question now remains to be considered pertains to the conviction and sentence ordered against accused 2 and 3. The charges against these accused are under Sections 302 and 201, I.P.C. read with Section 34. Learned Sessions Judge after trial found that accused 2 and 3 were not liable to be convicted under Section 302. However, the second accused was convicted under Section 201 and third accused was acquitted of all charges levelled against him. The State Appeal, Crl. A. No. 316/90 under Section 378 of the Code is against the order of acquittal passed by the learned Sessions Judge against accused 2 and 3 under Sections 302 and 201 read with Section 34, I.P.C. The Supreme Court in G.B. Patel v. State of Maharashtra, : 1979CriLJ51 while dealing with powers of the High Court under Section 378 of the Code of Criminal Procedure, followed with approval the dictum laid down by the Privy Council in Sheo Swarup v. Emperor, AIR 1934 PC 227 (2). The dictum propounded by Lord Russel of Killowen is this:.always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

The Supreme Court further observed that where two reasonable conclusions can be drawn on the evidence on record, the High Court as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the court below. The apex court in Awadhesh v. State of M.P., : 1988CriLJ1154 further explained the position as below (at page 1156 of Cri LJ):

If on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible, one as held by the trial court for acquitting the accused, and the other for convicting the accused in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court. Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable, the High Court should not interfere with the order of acquittal.

(Italics supplied)

18. Now it is necessary to examine whether this court can interfere in the, order of acquittal passed by the learned Sessions Judge in the case of accused 2 and 3, applying the aforesaid principles laid down by the Supreme Court. What is required to be examined is whether the order of acquittal passed by the court below is unreasonable or perverse. Mr. Ratna Singh, learned Director General of Prosecution submits that second accused is a henchman of first accused and that therefore second accused shall also be made liable for the murder of Yeshoda. On the other hand the learned counsel for the accused submits that the order of acquittal passed by the court below in the case of accused 2 and 3 is neither perverse nor unreasonable and that at any rate, the order of acquittal shall not be reversed in exercise of powers of this court under Section 378 of the Code. The further argument is that the prosecution has failed to prove that accused 2 and 3 had any participation in the commission of the offence by the first accused, as a result of which the provisions of Section 34 cannot be invoked.

19. As far as second accused is concerned, the prosecution has sought to prove the charge under Section 302 on the basis of recovery of M.O. 8 (golden tali), M.O.9 (padasaram) and M.O. 11 (granite stone) under Section 27 of the Evidence Act. Exts. P 22, P 21 and P 27 are the mahazars respectively for the recovery of aforesaid articles. PWs 27 and 28 are the two witnesses examined to prove the recovery of M.O.8 thali. M.O.8 was recovered from PW 28 who is a goldsmith at Thillankeri. PW 28 deposed that it was PW 27 who sold M.O. 8 to him. PW 27 is a friend of PW 28. PW 27 deposed that it was second accused who had given M.O. 8 for sale. PW 26 is a witness to Ext. P 21 mahazar as per which M.O. 9 padasaram was recovered. The ingredients of Section 27 are not satisfied in the case of recovery of M.O. 11 granite stone. It was not concealed anywhere. No reliance can be placed on the recovery of M.O. 11 which is similar to the recovery of M.O. 12 stone which is found to be not legal hereinbefore. The reasons stated there will equally apply in the case of M.O. 11 also. That would mean, that the second accused had not used the stone to injure the deceased in any manner. Therefore it is not an incriminating circumstance against the second accused.

20. M.O. 8 and M.O. 9 were identified by PWs 6 and 16 as that of deceased Yeshoda. The question is whether recovery of these articles would amount to an incriminating circumstance as against the second accused. After analysing the evidence tendered by PWs 27 and 28, the learned Sessions Judge found that recovery of M.O. 8 is at least admissible under Section 8 of the Evidence Act. Learned Judge also believed the evidence of PW 26 who had tendered evidence with regard to the recovery of M.O, 9 By reason of the recovery of M.O. 8 and M.O. 9 it cannot be said that the second accused has had any direct involvement in causing the murder. Of course it is true that the second accused was there along with the first accused in the jeep KLA 1170 in the company of Yeshoda. There is no evidence to show that the second accused has caused any physical injury to Yeshoda during their journey in the taxi jeep or extended assistance to first accused in the commission of offence. The prosecution case is that accused purchased plastic cord from PW 12 who is a shop keeper in Tellicherry and that plastic cord was used by first accused to tie the neck of Yeshoda with the assistance of second accused. The evidence of PW 12 has been disbelieved by the lower court and we do not see any reason to take a different view on this aspect. No other instance of actual participation of second accused is specifically alleged by the prosecution. That being so the alleged participation of the second accused in causing the murder of Yeshoda cannot be said to be proved or established. Likewise no participation of third accused is involved in perpetrating the murder of Yeshoda by the first accused. Of course, the third accused is the driver of the jeep in which Yeshoda was carried along with accused 1 and 2. That does not mean, he has shared the intention of first accused to cause the death of Yeshoda. There is absolutely no evidence in the case to prove the complicity of third accused in the crime.

21. In Bhaba Nanda Sarma v. State of Assam, : 1977CriLJ1930 the Supreme Court held that in order to attract the application of Section 34, I.P.C. it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all. 'In other words, the prosecution must prove facts to justify an inference that all the participants of the act had shared a common intention to commit the criminal act which was finally committed by one or more of the participants.' It is emphatically proved that the first accused had a strong motive to kill Yeshoda since she has opposed dissolution of marriage between them. It is because of this mental stimulus the first accused managed to get Yeshoda in the company of accused persons by giving an offer to her that he would purchase lands on her behalf for construction of a house. After getting Yeshoda in his company, the strongbuilt idea was to kill her at a convenient time and place. There is absolutely no evidence to pin-point that such an intention has been shared by other accused persons. All the three accused persons were with Yeshoda together in the jeep; but that does not mean all of them had a common intention to kill Yeshoda. The intention was only in the mind of the first accused. There is no evidence to show that the first accused had revealed his intention to other accused persons at any time before the actual commission of offence. It appears that first accused had given the impression to other accused that he was going to purchase land for Yeshoda either at Badagara or at Wynad; there was no reason for accused 2 and 3 to think otherwise. When that offer was first made to Yeshoda by the first accused, the second accused was also present. It appears therefore the second accused had honestly believed that their journey on 3-3-1988 with Yeshoda was for the purpose of achieving the offer made by the first accused to his wife Yeshoda. It is impossible for the second accused or the third accused to read the mind of the first accused where a strong intention to cause the murder of Yeshoda was concealed from all others. It is absolutely certain that there was no 'prior concert' or 'meeting of minds' of accused 2 and 3 'in sharing the intention' of first accused as contemplated in Ram Lal Singh v. State of Haryana, : 1992CriLJ1 . It is also obvious that no motive is alleged by the prosecution against accused 2 and 3 in perpetrating the offence.

22. As noticed earlier two valuable articles recovered pursuant to the confession of second accused are M.O. 8 golden thali and M.O. 9 padasaram. The prosecution case is that these articles were removed from the deadbody after causing the murder of Yeshoda. Therefore it cannot be said that the removal of these valuable items from the deadbody is not an integral part of murder. Ornaments or things of the deceased are found in the possession of a person soon after the murder, there will be a presumption that possessor is responsible for death of the deceased in a case of murder for gain, or when robbery or dacoity was an integral part of the murder. A Division Bench of this court in Chandra Babu v. State of Kerala, 1992 (2) Ker LT 129, held:

When prosecution has no case that robbery or dacoity was committed by the accused, the mere fact that accused was found to be in possession of the articles of the deceased need not raise a presumption that he is one of the murderers.

It is an admitted case that there is no charge against the accused 2 and 3 for robbery or dacoity. It is therefore difficult for this court to say, the circumstances available in this case as against the accused 2 and 3 would bring home the offence charged against them under Section 302 read with Section 34, I.P.C. When the situation available in this case is so crystalised as above the next question that arises for decision is whether the order of acquittal passed by the learned Sessions Judge can be interfered with by this court. From the circumstances available in the case it is difficult to say the finding of the learned Sessions Judge acquitting accused 2 and 3 is perverse or unreasonable. Therefore the rule of prudence demands that the order of acquittal made by the trial court shall not be disturbed. On an anxious consideration of all the circumstances available in this case we are of the firm view that the order of acquittal of accused 2 and 3 of the offence under Section 302 read with Section 34, I.P.C. passed by the court below is liable to be confirmed. We do so.

23. The only question that now survives for consideration relates to the conviction of second accused under Section 201, I.P.C. Learned Sessions Judge found that he is guilty under the above section, notwithstanding the fact that he is acquitted of charges under Section 302. In order to attract the provision of Section 201 it must be established that the accused caused the disappearance of evidence with the intention of screening the offender from legal punishment. In this case the offence under Section 302 has been proved against the first accused and he has also been convicted under Section 201, I.P.C. Merely because the second accused has been acquitted of charge under Section 302 it cannot be said that charge under Section 201 against him automatically disappeared. It is obviously so because the charge under Section 201 is an independent and distinct charge. We have already found that the first accused alone is responsible for the murder of his wife Yeshoda and therefore the question is whether the second accused has in any way caused the disappearance of evidence with the intention of shielding the first accused from the clutches of penal consequences. It cannot be disputed that the second accused was there all along in the jeep in which the accused persons travelled with Yeshoda to the place where she was actually murdered. The role of bestowing assistance by the second accused i comes up for the first time when his friend, the first accused was found in quandaries with a lifeless body with him. It is aptly evident that the first accused who had strong motivation of uxoricide did not cause to share a moment for prior concert or deliberation with the other accused persons who were with him in the jeep considerably for a long span of hours. Suddenly therefore arises an unpremeditated conundrum, what to do with the deadbody? Anguish appears in the minds of all apart from igniting penal indictment. Without the assistance of another person the first accused could not handle the dead body by himself. The third accused has no role in the entire transaction, it is so found herein before. The natural inference is, the second accused offered helping-hand to first accused to dispose of the deadbody. The circumstances reyeal that the deadbody was found near the stream in the ravine. It is a well-built idea that the deadbody shall escape the attention of ' other persons. The intention appears to be crystal clear in the above process of action that the evidence regarding the perpetration of offence be obliterated so as to screen the first accused from penal punishment. Thus the ingredients of the offence under Section 201, IPC are totally satisfied. That being so, we are not persuaded to interfere in the finding of the learned Sessions Judge that the second accused is liable for conviction under the aforesaid section.

In the result, the judgment of the court below is confirmed and both the appeals are dismissed.