STATE OF KERALA v. MATHA ALIAS MATHACHAN — 1969 DIGILAW 142 (KER)

Judgment :- 1. This is an appeal by the State against the acquittal of the respondents-accused 1 and 2 of offences under S.302 IPC. read with S.114 IPC. and S.201 IPC. read with S.34 IPC for causing the death of 2nd accused's husband 35 year old Ulahannan alias Pappu Kunju of Keerampara village and for causing disappearance of the evidence of the offence. 2. On 7 4 67 at about 10.30 A. M. pw.1 Poulose, elder brother of Pappu Kunju, lodged a "missing information" report before pw. 36 Sub Inspector, Kothamangalam Police Station alleging that his brother Pappu Kunju was found missing since the morning of 19 3 67. pw. 36 registered a crime on that basis as Crime No. 25 of 1967 at his Police Station. 3. On the same day pw. 17 Vice-President of Keerampara Panchayat informed pw. 36 that there was a rumour in the locality that a gunny bag bundle was found afloat in the Periyar river suspecting to contain the dead body of Pappu Kunju. pw. 36 caused the gunny bag bundle to be taken out of the river with the assistance of pw. 27 Varghese and pw. 28 Thomas on the morning of 8 4 67. In order to extricate the bundle pw. 28 had to cut a coir rope with which the bundle was found to have been tied to a large size granite stone, M. 0.5, stuck to the muddy depth of the river. M. 0.7 is the gunny bag which was found tied with M. 0.4 piece of coir rope. M. 0.3 towel was found round the neck region while M. 0.1 kyli mundu was found in the region of the skull. But, when the bundle was taken out, there was only skull and skeleton to be seen in the gunny bag. M. 0.5 stone could be removed only on 2-5-67 along with M. 0.5 (a) and M. 0.9 pieces of coir rope. On removal of the remnants of the dead body, an inquest was held over it and thereafter pw. 24 Asst. Surgeon conducted post-mortem at the spot. Ext. P7 is the post-mortem certificate. He found that the fleshy part of the body was completely decomposed with the exception of some traces of flesh attached to the skeleton here and there. The skeleton was fully exposed with rope tied round the neck portion. 24 Asst. Surgeon conducted post-mortem at the spot. Ext. P7 is the post-mortem certificate. He found that the fleshy part of the body was completely decomposed with the exception of some traces of flesh attached to the skeleton here and there. The skeleton was fully exposed with rope tied round the neck portion. The entire vertebral column was intact except the fibula of the left leg. The small bones of the hand and foot were scattered on the ground. There was no viscera for any internal examination. Therefore, no opinion could be given by him as to the cause of death. However, he assumed that it was the skeleton of a male subject to confirmation by an Orthopedic Surgeon. In his opinion the person concerned would be between 17 and 25 years of age. 4. The bones were examined by pw. 34 Bone Specialist attached to the Department of Forensic Medicine, Medical College, Trivandrum who issued Ext. P13 certificate on 214 67. The conclusion of pw. 34 was that the bones must have all belonged to one and the same person and were of a male of 30 to 40 years of age with a height of 5.3" and the death might have occurred 1 to ll/2 months prior to 214 67. pw. 35, the Dental Expert attached to the same college, examined the teeth of the dead person concerned in the case and issued Ext. P14 certificate. His conclusion was that the teeth and bones which he examined must have belonged to the same body. He had, however, found that the deceased had chewing habit and had either an extra tooth or a small cystic swelling behind and between the upper central incisors. According to him, the age group of the person would be 35 to 40 years. 5. He had, however, found that the deceased had chewing habit and had either an extra tooth or a small cystic swelling behind and between the upper central incisors. According to him, the age group of the person would be 35 to 40 years. 5. The prosecution case is that the Ist accused throttled Pappu Kunju to death on the mid-night of 18 3 67 in the court-yard of his house, bundled the dead body in M. 0.7 gunny bag tying with M.O.4 coir rope, M. 0.3 towel belonging to the Ist accused tied round the neck and M.O.1 kyli belonging to the 2nd accused thrown round the head of the dead body, carried it himself from the courtyard of the house to the Periyar river and thereafter immersed the dead body into the river by tying it to M 0.5 a large size granite stone by means of M. 0.5 (a) and M. 0.9 rope pieces. The Ist accused aged 26, a bachelor-Ex-Military man, was in illicit intimacy with the 2nd accused, 30 year old wife of Pappu Kunju. The husband and wife lived in Chennakodu house with their 5 children, pw. 13 daughter aged 13, Moly aged 11 and the rest aged 6,3 and 1 respectively. Pappu Kunju was a rubber tapper and taking advantage of his absence at his house the Ist accused was in the habit of visiting the 2nd accused now and then. pw. 3 and the neighbours knew about the illegal intimacy between the accused 1 and 2. Even Pappu Kunju knew about it. There was occasion when Pappu Kunju used to find fault with the 2nd accused of her bad conduct. But, when the affairs came to a high pitch of controversy, the accused decided to do away with Pappu Kunju, and the Ist accused, with the assistance of the 2nd accused, did the job. The alleged murder was not witnessed by anyone. However, pws.1, 2, 3, 4, 5,ll,12 and 14 did not meet Pappu Kunju since the morning of 19 3 67. The 2nd accused told her neighbours that Pappu Kunju had been to Ernakulam in search of some job and that he did not return. On the date of the incident, pw. 3 and Moly had been sent away by the 2nd accused to the house of pw.1 and on 14 67 the 2nd accused caused pw. The 2nd accused told her neighbours that Pappu Kunju had been to Ernakulam in search of some job and that he did not return. On the date of the incident, pw. 3 and Moly had been sent away by the 2nd accused to the house of pw.1 and on 14 67 the 2nd accused caused pw. 3 to write a letter to pw. 2, the father of the deceased, alleging that the whereabouts of Pappu Kunju were not known. On the night in question, Pv. 12 George saw the Ist accused going with a gunny bag and a rope towards the house of Pappu Kunju while later is the same night pw. 14 Ulahannan saw the Ist accused going with a headload towards north. The 2nd accused is alleged to have made a confession to pw. 15 Paul and pw. 16 John one week after the recovery of the gunny bag bundle from the river that the Ist accused caused the death of her husband Pappu Kunju in the manner alleged by the prosecution. During the investigation, a pillow cover M. 0.8 was seized from the residence of the 2nd accused under Ext. P5 mahazar and another gunny bag M. 0.6 was seized from the residence of pw. 13 who is the father of the Ist accused. The Ist accused was arrested on 10 4 67 and the 2nd accused on 18 5 67. On completion of the investigation, pw. 37 Circle Inspector laid the charge against the accused on 12-6-67. 6. That there had been illicit intimacy between accused 1 and 2 admits of no doubt. PWs.1, 3 and 4 give evidence in support of that. PW. 3 is the daughter and PW. 4 is a close neighbour of deceased Pappu Kunju. Though the accused 1 and 2 denied their relationship, there is no ground to discard the evidence of PWs.1, 3 and 4. The accused however, have denied the entire incident which led to the death of Pappu Kunju as well as the disposal of the dead body. Under these circumstances, it is for the prosecution to prove the case beyond reasonable doubt against the accused. The first point that requires to be considered is whether Pappu Kunju died and, if so, whether his dead body had been identified. It is clearly brought out that since 19 31967 Pappu Kunju had disappeared from his residence. Under these circumstances, it is for the prosecution to prove the case beyond reasonable doubt against the accused. The first point that requires to be considered is whether Pappu Kunju died and, if so, whether his dead body had been identified. It is clearly brought out that since 19 31967 Pappu Kunju had disappeared from his residence. PWs.1 to 5,ll,12 and 14 are persons who are likely to have met him if he was alive. The existence of the dead body is no doubt, a proof positive of the death But, its absence is not fatal to the trial of the accused for murder. "We should, however, require the strongest possible evidence as to the fact of murder if the dead body is not forthcoming. 7. It is pointed out in Ram Chandra and another v. Uttar Pradesh (AIR. 1957 Supreme Court 381) that the conviction of an accused need not necessarily depend upon the corpus delicti being found; but at the same time, the prosecution can prove its case by other reliable evidence as regards the commission of the murder. In this regard see the observation in the above decision. "It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, director circumstantial, of the commission of the murder though the corpus d.delicti are not traceable." It is true that on 8 41967 the bones, skeleton, teeth etc. of a dead male person had been recovered out of a gunny bag bundle which was found floating in the river. But, there is no conclusive evidence that they were those of the deceased Pappu Kunju. PWs. 24, 34 and 35 are the expert witnesses examined in the case. They had occasion to examine the bones, teeth and other parts of the remnants of the body. Even with regard to the age, their opinion is not uniform. PW.1 estimated the age of the deceased as between 17 and 25 while PWs. 34 and 35 estimated it as between 30 and 40 and 35 and 45 respectively. His admitted age was 35 at the time of his death. These expert witnesses, however, are uniform in their view that the skeleton and the bones are that of a male person. Apart from that circumstance, there is no conclusive opinion as to the identity of the deceased person. His admitted age was 35 at the time of his death. These expert witnesses, however, are uniform in their view that the skeleton and the bones are that of a male person. Apart from that circumstance, there is no conclusive opinion as to the identity of the deceased person. But, PWs.1 and 2 by looking at M. 0.2 hair and the form of the bones assumed that they belonged to the body of deceased Pappu Kunju. It is difficult to accept their evidence in the light of these circumstances to establish that the bones, skull, teeth etc. are the remnants of the dead body of Pappu Kunju. We have, therefore, to hold that the prosecution is not able to establish either the identity of Pappu Kunju or the cause of his death. 8. We shall consider next the evidence In the case to establish whether there are sufficient materials before us to hold the accused liable for an offence of murder of Pappu Kunju. There is no eye witness to prove the prosecution case. Assuming that the dead body would have been thrown in the river and that the remnants of it had been recovered, still the onus is with the prosecution to establish that the accused are associated with the murder and that they disposed of the dead body in the manner alleged by the prosecution. The prosecution is able to establish only certain circumstances which were brought to light after the recovery of the gunny bag bundle from the Periyar river on 8 41967. The foremost circumstance is the extra judicial confession alleged to have been made by the 2nd accused on 16 41967 to PWs. 15 and 16. Without even going into the truth of the confession, we might say that it is not admissible in evidence under S.30 of the Evidence Act. S.30 reads as follows: "When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting him self and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation: "Offence", as used in this Section, includes the abetment of, or attempt to commit, the offence." 9. Explanation: "Offence", as used in this Section, includes the abetment of, or attempt to commit, the offence." 9. The confessional statement of one of the several accused persons can be taken into consideration against the other accused if it fulfils all the conditions laid down in S.30, one of the conditions being that the confession must implicate the maker substantially to the same extent as the other accused persons against whom it is sought to be taken into consideration. Where, on a plain reading of the confession as a whole, it appears that the maker was trying to throw the blame on the other accused, the confession is not one admissible under S.30. It is not then a substantial piece of evidence in the real sense. 10. In this case, the 2nd accused in making the confession exculpates herself from the blame and throws the blame on the 1st accused. It is true that she was tried jointly for the same offence falling within the same definition arising out of the same transaction. That satisfies only one of the conditions of S.30. In this regard, reference may be made to a decision reported in Balbir Singh v. State of Punjab (AIR. 1957 SC. 216). The value attached to a self-exculpatory statement of a co-accused is dealt with as follows in the above decision: "So far as the confessional statement of one accused is concerned, it may be taken into consideration against the other accused if it fulfils the conditions laid down in S.30 of the Evidence Act. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration. Where on reading the confession as a whole it appears that he was really trying to throw the main blame on the other accused and mike out that be was an unwilling spectator of the crime committed by the other accused the utmost that can be stated is that the confession cannot be used at all against the other accused." 11. The question how far the confession of a co-accused, could be treated as evidence against an accused was considered elaborately in Kashmira Singh v. State of Madhya Pradesh (AIR. 1952 SC. The question how far the confession of a co-accused, could be treated as evidence against an accused was considered elaborately in Kashmira Singh v. State of Madhya Pradesh (AIR. 1952 SC. 159) and it was held therein that such statements were not evidence as defined in S.3 of the Evidence Act, that no conviction could be founded thereon, but if there was other evidence on which a conviction could be based, they could be referred to as lending assurance to that conclusion and for fortifying it. 12. The above view is the same as the one considered in a decision reported in Gopinathan and another v. The State of Kerala (1963) Crl. Q. 92). The following is the observation in that decision: "The confession under S.30 cannot take the place of evidence against the co-accused or supplement evidence otherwise insufficient. The section only means where there is evidence against the co-accused sufficient, if believed, to support his conviction then the kind of confession described in S.30 may be thrown into the scale as an additional reason for believing that evidence. It is only if there is substantive evidence against the accused and there is some lingering doubt that the confession of a co-accused may be taken into account to set the doubt at rest". It is, therefore, clear that the extra judicial confession of the 2nd accused has no value in establishing the guilt of the 1st accused unless there is other substantial evidence or strong circumstances, to prove the guilt. We are also not impressed with the evidence of pws.15 and 16 who proved the confession. pw. 16 turned hostile to the prosecution at the trial and his evidence has been discarded by the lower court. pw. 15 was questioned on 16 4 67 by the Police. It was as such a belated story which in the circumstance of the case appears to be improbable. On these grounds we do not rely on the confession of the 2nd accused to bring home the guilt of the 1st accused. 13. In the light of the above conclusion, it is necessary for us to consider the other evidence in the case with which the prosecution seeks to connect the accused to the offence. It may be stated that neither to the commission of the murder nor to the disposal of the dead body there is any eye witness. 13. In the light of the above conclusion, it is necessary for us to consider the other evidence in the case with which the prosecution seeks to connect the accused to the offence. It may be stated that neither to the commission of the murder nor to the disposal of the dead body there is any eye witness. During the recovery of M. 0.7 gunny bag bundle some other articles were recovered. They are M. 0.1 kyli mundu, M. 0.3 towel, MOs. 4, 5 (a) and 9 pieces of coir rope and M. 0.5 granite stone. The rope and M. 0.3 towel were alleged to have been seen with the 1st accused while M. 0.1 kyli mundu was seen with the 2nd accused. With regard to M. 0.1, the evidence is not conclusive. It is true that M. 0.1 was seen with the 2nd accused by pws.1,3 and others. But, there is the evidence of pw 10 who stated that a kyli mundu like M 0.1 was worn both by males and females among the labour class. It is significant to note that no other kyli mundu was seized out of the gunny bag. There is no case for the prosecution that Pappu Kunju did not wear any cloth on the night of the incident. They have also not explained as to what happened to the cloth worn by the deceased. It is natural to infer from the circumstances of the case that M. 0.1 would be the kyli mundu which was worn by Pappu Kunju himself. The. evidence that the stitching on M. 0.1 is similar to the stitching on M. 0.8 pillow case which was seized from the residence of the 2nd accused later does not establish that M. 0.1 was the kyli mundu which belonged exclusively to the 2nd accused. pw. 3, the daughter of the 2nd accused, has given evidence that her mother has another kyli rnundu of her own. In these circumstances, it cannot be said that M.O1 kyli mundu would have been handed over by the 2nd accused to the 1st accused for covering the head of the deceased before the dead body was taken by him. 14. With regard to M. 0.3 also, the evidence is not impressive. It is true that pw. 7 has given evidence that he saw M. 0.3 worn by the 1st accused. 14. With regard to M. 0.3 also, the evidence is not impressive. It is true that pw. 7 has given evidence that he saw M. 0.3 worn by the 1st accused. But, he saw it only twice when he went with him to forest to collect fire-wood. On these two occasions, Pw.l saw M. 0.3 with the 1st accused. But, he admits in cross-examination that he saw M. 0.3 worn by the 2nd accused even after the incident. That evidence of Pwl shatters the prosecution case that M. 0.3 was seized out of the gunny bag bundle on 8 4 67. It is quite probable that M. 0.3 would have been later brought in as a piece of evidence to implicate the Ist accused to the offence. 15. The rest of the items are M. Os. 4, 5 (a) and 9. They are 3 pieces of coir rope. M. 0.4 was found tied round M. 0.7 gunny bag containing the skeleton, teeth etc. pw. 6 claims ownership of M. 0.4. M. 0.4 was alleged to have been missing from his residence since the morning of 19 3 67. No one has come forward claiming ownership over M. Os. 5 (a) and 9. M. Os. 5 (a) and 9 were recovered along with M. 0.5 stone on 2 5 67 out of the river. The delay in the removal of M. 0.5 is stated to be that it was stuck to the muddy ground and that it required some efforts later to remove it by pw. 28. However, there is no other evidence in the case to connect M. 0.5 (a) and M. 0.9 with the Ist accused as regards his possession of the same. pw. 6 would have it that the 1st accused was in possession of a new rope. But, no one has identified that rope. In the absence of any evidence, we have to presume that M. 0.5 (a) and M 0.9 would have been used to tie the bundle with M.O.5 stone for immersing into the river. On an examination of the ropes themselves, it is not clear that M. 0.5 (a) is part of M. 0.4 and M. 0.9 the remaining part. M. Os. 3 and 5 (a) are entwined with 4 coir threads while M. 0.9 is entwined with 5 coir threads. On an examination of the ropes themselves, it is not clear that M. 0.5 (a) is part of M. 0.4 and M. 0.9 the remaining part. M. Os. 3 and 5 (a) are entwined with 4 coir threads while M. 0.9 is entwined with 5 coir threads. So, it cannot be said that M. 0.9 is part of M. 0.5 (a). The prosecution case is that only one rope was used for tying the stone and another rope for tying the dead body. pw. 6, who is the owner of M. 0.4, does not say that M. Os. 5 (a) and 9 are parts of M. 0.4. Therefore, there is absolutely no evidence that M. Os. 5 (a) and 9 are parts of the same rope and that the 1st accused made use of that rope. There is great difficulty in identifying these pieces of rope, which are alleged to have been used by the 1st accused to tie the stone. We have to hold, therefore, that the evidence is not sufficient to connect the accused to M. Os. 4,5 (a) and 9. 16. PWs. 9 & 10 used to take bath at Asari Kadavu which is some distance south of the place at which the gunny bag bundle was recovered. M.O.5 was found missing at Asari Kidavu since the date of the incident. A furlong north of Asari Kadavu there was a bamboo made ferry boat stationed in front of the house of PW. 29. He used to keep that ferry boat under lock and key. But, on the night of the incident, it was tied to a rope. Though there is no evidence, the prosecution wants to set up a probable case that the 1st accused would have removed M.O.5 stone out of Asari Kadavu carrying it on the bamboo ferry boat on the night for tying it with the gunny bag bundle for immersing into the river. There is only a supposition with regard to that aspect of the case. If the ferry boat was not pressed into service, it is clear that the 1st accused would not have been in a position to remove the big stone M. 0.5. First of all, there is no reason for PW. 29 to have kept the ferry boat tied with a rope on that particular night though usually he used to keep it under lock and key. First of all, there is no reason for PW. 29 to have kept the ferry boat tied with a rope on that particular night though usually he used to keep it under lock and key. No one saw the 1st accused removing the stone. It may be true that M. 0.5 stone was used at Asari Kadavu for the purpose of washing clothes and it may also be true that it would have been removed to the spot in question. But, there is no circumstance to suggest that the 1st accused would have removed the stone. So, the evidence as regards the articles recovered suggesting that they could be traced to the accused does not establish the prosecution story to implicate the accused to any offence. 17. There remains only the evidence of PWs. 12 and 14. The evidence of PW. 12 is that he saw at about 9.30-PM. the 1st accused going towards the house of the deceased with a gunny bag and a rope. But, his evidence is not conclusive with regard to the identity of either the rope or the bag. It is difficult to rely upon his testimony to show that he saw the 1st accused in possession of M. 0.7 or the rope. The evidence of PW. 14 that he saw the 1st accused going towards north with a headload during the midnight of 18 3 1967 cannot also be accepted. The plan Ext. P 11 prepared in the case goes to show that PW. 14 lives about 189 ft. away from the courtyard of the house of the deceased. The 1st accused was alleged to have taken the dead body and was alleged to have gone in the north-west direction. It is difficult from the circumstances of the case to hold that PW. 14 would have been in a position to see the 1st accused going in that direction. PW. 14 would have it that he flashed his torch-light from his residence towards the 1st accused and saw him. We are not able to accept his version, in the circumstances of the case, in view of the long distance at which he was standing then. It is not possible to say that he would have identified the 1st accused. Under these circumstances, it is difficult to rely upon his testimony. We discard his evidence as unnatural and unbelievable. We are not able to accept his version, in the circumstances of the case, in view of the long distance at which he was standing then. It is not possible to say that he would have identified the 1st accused. Under these circumstances, it is difficult to rely upon his testimony. We discard his evidence as unnatural and unbelievable. Apart from these circumstances, the prosecution has alleged that the 2nd accused had sent away PW. 3 and Moly to the residence of PW. 10.118 31967 and that the 2nd accused had given an impression to PWs.1 and 2 and others that Pappu Kunju had gone to Ernakulam in search of a job and that he would not return. We do not think that these are sufficient circumstances to implicate the 2nd accused to the commission of the offence. First of all, there is evidence to show that PW. 3 and Moly would have gone to the residence of PW.1 as there was no arrangement at the residence of the 2nd accused on that day for a celebration which has usually to be held on that Saturday (13 31967). So, PW. 3 and Moly would have gone to the house of PW.1 to attend the ceremony there. The 2nd accused has got her own explanation to give why they went to PW.1 on that day. If the 2nd accused is innocent, her conduct after the death of Pappu Kunju is consistent with it. We find no circumstances to hold that either the 1st accused or the 2nd accused is guilty of any offence as the prosecution has not established their guilt. 18. On a consideration of the entire evidence, we are not satisfied that the prosecution has proved its case beyond reasonable doubt and, therefore, the accused are entitled to the benefit of doubt. The court below is correct in holding the accused not guilty and acquitting them of the offences with which they are charged. 19. In the result, the appeal fails and the same is dismissed. Dismissed.