Sreenivasan v. State — 1970 DIGILAW 76 (KER)

JUDGMENT T.C. Raghavan, J. 1. The appeal has been referred to a Division Bench by Narayana Pillai , J. with the observation that "if the prosecution evidence is accepted, the conviction, it appears, should have been for murder". The appellant was charged under sections 302 and 201 of the Penal Code; and the Sessions. Judge convicted him under sections 304, Part II and section 201 and sentenced him to rigorous imprisonment for six years on the first count and for one year on the second count, the sentences to run concurrently. The State has not filed any appeal against the acquittal of the appellant under section 302 of the Penal Code; and the appellant alone has appealed against his convictions and sentences. In such a case, this Court cannot convict and sentence the appellant under section 302 in the appeal filed by him in the absence of an appeal by the State against acquittal. In other words, this Court cannot convert an order of acquittal into one of conviction without an appeal against the acquittal by the State even in the exercise of its revisional powers under section 439 of the Code of Criminal Procedure. This has been made clear in several decisions including Supreme Court decisions [vide Gopalan v. State of Kerala 1961 K.L.T. 1088, State of Andhra Pradesh v. Thadi Narayana A.I.R. 1962 S.C. 240, State of Kerala v. Venkita Rao: Calendar Revision No. 15 of 1969; and Chellappan v. State: Criminal Appeal No. 289 of 1969 and Calendar Revision No. 28 of 1969]. In this connection, it may also be useful to see the powers of a Single Judge and a Division Bench in such cases. Section 3 (13) (a) of the Kerala High Court Act provides that an appeal from a judgment or order of a criminal court, except in cases in which the appellant or a person tried with him has been sentenced to death or imprisonment for life, may be heard by a Single Judge, provided that in the exercise of such power the Single Judge does not impose a sentence of death or imprisonment for life. Section 4 (2) (b) of the same Act provides that an appeal from the judgment of a criminal court, in which a sentence of death or imprisonment for life has been passed on the appellant or on a person tried with him, shall be heard by a bench of two Judges. Thus, this case, where the Sessions Judge has convicted the appellant under section 304, Part II and imposed a sentence of rigorous imprisonment for six years, has to be heard by a Single Judge, unless the sentence can be enhanced to imprisonment for life, in which case alone the appeal has to be placed before a Division Bench. The maximum punishment provided under section 304, Part II being only rigorous imprisonment for ten years, there is no possibility of enhancing the punishment even under section 439 of the Code of Criminal Procedure, whether by a Single Judge or by a Division Bench, beyond that limit. Even if we come to the conclusion that the offence committed by the appellant is murder, still, we cannot convict and sentence him under section 302 of the Penal Code in the absence of an appeal against acquittal by the State, nor can we enhance the punishment beyond rigorous imprisonment for ten years. Therefore, the appeal need not have been placed before a Division Bench. After the case came before us, we felt that, probably, we might have to enhance the punishment under section 304, Part II; and we issued notice suo motu under section 439 of the Code of Criminal Procedure calling upon the appellant to show cause why his sentence should not be enhanced. That is the criminal revision case. The charge against the appellant was that he caused the death of a young woman by name Ammini , who was a maid servant in the house of P.W. 6, the General Manager of Toshiba Anand Lamps Ltd., Ernakulam, on 2nd February 1969 and also caused disappearance of the evidence of the offence. The appellant himself was another domestic servant in the house of P.W. 6. The prosecution case is that the appellant wanted to marry Ammini, but she rejected the proposal, which created unpleasantness between them. On the evening of 2nd February 1969 the entire family of P.W. 6 went out to Malabar Hotel on Willingdon Island leaving Ammini and the appellant in the house of P.W.6 at Thevara. The prosecution case is that the appellant wanted to marry Ammini, but she rejected the proposal, which created unpleasantness between them. On the evening of 2nd February 1969 the entire family of P.W. 6 went out to Malabar Hotel on Willingdon Island leaving Ammini and the appellant in the house of P.W.6 at Thevara. Ammini was upstairs near the radio, when the appellant went upstairs to take some butter from the refrigerator kept there. The appellant asked Ammini why she was giving false reports about him to the wife of P.W. 6, P.W. 4, when Ammini retorted that she would continue to do so. She also stated that, even if the father of the appellant intervened, she would not stop doing so. The appellant got furious and caught hold of Ammini, when both of them fell on the ground. Ammini scratched on the fore-arms of the appellant, when the appellant, pressed Ammini's neck for a few minutes with the result that Ammini groaned and died. When the appellant realised that Ammini was dead, he brought a gunny bag from the servant's quarters on the ground floor and pushed the dead body into it and slowly rolled the bag down the staircase and kept it in the bath room of the servants' quarters. At about 8.30 P.W. 6, P.W. 4 and the others returned from Willingdon Island and made enquiries of the appellant as to where Ammini was. The appellant answered that a well-dressed young man claiming to have come from Bangalore took her out. P.W. 6, P. W. 4 and the others had their food and they went to bed. At about 11 in the night, the appellant took the gunny bag containing the dead body in the car of P.W. 6 and drove the car to Nettoor Ferry. He found that there were people in the vicinity and so he reversed the car and went to another place near the backwaters. And he placed the bag containing the dead body near the edge of the backwaters and came back. The next evening at about 3 P.W.21 happened to see the gunny bag, and suspecting that it contained a dead body, informed the police. The police reached the scene and took custody of the dead body and sent it for post-mortem examination and other formalities. They also published photographs of the dead body in the local newspapers. The next evening at about 3 P.W.21 happened to see the gunny bag, and suspecting that it contained a dead body, informed the police. The police reached the scene and took custody of the dead body and sent it for post-mortem examination and other formalities. They also published photographs of the dead body in the local newspapers. On the evening of 5th February, the police came to the house of P.W. 6 during his absence, questioned P.W. 4 and the appellant. While the police were still in the house, the appellant went upstairs, where P.W. 4 was trying to contact her husband, P.W. 6, on the telephone, and told her that he was going to the market to purchase articles for the party for dinner which was arranged for the next day. P.W. 4 gave him hundred rupees and also gave him a list of articles to be purchased. The appellant came down and entered one of the cars of P.W. 6 driven by P.W. 7 and proceeded to the market. On the way the appellant started weeping and requested P.W. 7 to take the car to the office of Toshiba Anand Lamps. P.W. 7 then asked the appellant why he was weeping, when the appellant is said to have confessed to P.W. 7 that he caused the death of Ammini and also placed the dead body bundled in a gunny bag near the backwaters. P.W. 7 drove the car to the office, where the appellant, getting out of the car, prostrated before P.W. 6 and confessed of the offence. He also requested P.W. 6 to save him. P.Ws. 9 and 10, two officers in Toshiba Anand Lamps, were present; and before them also he made the confession. P.W. 8, Mr. Anand, was then informed; and he came down from his office upstairs. The appellant confessed before him too, when P.W. 8 directed P.Ws. 9 and 10 to send the appellant to the police station in his car. Accordingly, he was taken to the police station on the evening of 5th February; and the next morning he was arrested by the police. Ultimately, the appellant made a confession under section 164 of the Code of Criminal Procedure before P.W. 19, the Sub-Magistrate. The investigation was completed and the charge-sheet was filed under sections 302 and 201 of the Penal Code as already indicated. Ultimately, the appellant made a confession under section 164 of the Code of Criminal Procedure before P.W. 19, the Sub-Magistrate. The investigation was completed and the charge-sheet was filed under sections 302 and 201 of the Penal Code as already indicated. The statements of the appellant both before the committal court and before the Sessions Court may now be noted. The appellant stated that he did not commit the murder; and that he confessed before the Sub-Magistrate at the instance of P.W. 6, his master. He stated that on 2nd February only the wife and children of P.W. 6 went to Malabar Hotel and P.W. 6 remained at home. P.W. 4 and the children returned in the evening, had their food and they all went to feed as usual. At about 11 in the night, P.W. 6 woke up the appellant and asked him to drive the car, P.W. 6 himself sitting in the front seat by the side of the appellant. The appellant drove the car to Nettoor Ferry; but since people were still about, the car was taken back. P.W. 6 directed the appellant to reverse the car, but since the road was narrow, P.W. 6 himself reversed the car and then asked the appellant to drive the car to a place near the backwaters. There P.W. 6 opened the boot of the car, removed the gunny bag and placed it near the edge of the backwaters. P.W. 6 then directed the appellant to drive back home; and after reaching home, P.W. 6 told the appellant that it was he who murdered Ammini and that the appellant should not divulge the fact to anybody on pain of death. The further version of the appellant was that P.W. 6 promised to pay him Rs. 25,000 after the appellant was released on bail and that the witness would also meet the expenses for defending the case. The fact that Ammini died an unnatural death and that the dead body found in the bag was that of Ammini is not seriously disputed. 25,000 after the appellant was released on bail and that the witness would also meet the expenses for defending the case. The fact that Ammini died an unnatural death and that the dead body found in the bag was that of Ammini is not seriously disputed. Though the lower part of the nose and the upper lip were found cut and removed from the corpse and for that reason it was not easy to recognise whether the dead body was that of Ammini, with the help of the special design of the embroidery on the sleeves of the blouse found on the dead body the dead body was recognised as that of Ammini by her sister P.W. 2, Ammini's friend P.W. 1, and others. Moreover, photographs of Ammini taken while she was alive are also available wearing this particular blouse; and therefore there is no doubt that the dead body found inside the gunny bag was that of Ammini. There is no eye-witness to the occurrence and the entire case depends on circumstantial evidence and the confessions made by the appellant both to the magistrate and to P.Ws. 6 to 9. The main attack of Mr. T. V. Prabha- karan, the counsel of the appellant, is directed against the confessions. The counsel has argued that the judicial confession (Ext. P-14) is bad, because the procedure laid down for recording confessions was not followed by the magistrate. The counsel draws our attention to Chapter VII of the Travancore-Cochin Criminal Rules of Practice and more particularly to Rule 51 therein. In Ext. P-14 the appellant tells the magistrate that he has come before the magistrate for making a submission (MALAYALAM), The magistrate then asks what the submission is; and the answer is that the appellant committed the murder of Ammini. This the appellant says in the midst of sobs. The magistrate then gives the appellant time for 24 hours and sends him to judicial custody. The next day he is produced again before the magistrate, when the magistrate warns him that he is not bound to make any confession and that if he makes a confession it will be used against him in his trial. Thereafter, the appellant comes out with his statement. Towards the end of the statement the magistrate however asks one question whether the appellant loved Ammini. The appellant denies this and concludes the confession. Thereafter, the appellant comes out with his statement. Towards the end of the statement the magistrate however asks one question whether the appellant loved Ammini. The appellant denies this and concludes the confession. The attack of the counsel of the appellant is that the confession was made even before the magistrate warned the appellant: in other words, the appellant stated that he committed the murder of Ammini when the magistrate asked him on the first day what the submission the appellant wanted to make was. We do not think that this objection has any force, because the appellant wanted to make a submission and the magistrate said that he could do so. It was then that the appellant said that he committed the murder of Ammini. Though the magistrate took down this, he gave the appellant time for 24 hours and sent the appellant to judicial custody: and when he was brought the next day, the magistrate duly warned him and it was after all that that the magistrate recorded the confession. In fact, the confession was what the appellant told the magistrate on the second day. The other attack made by the counsel relates to the question put by the magistrate whether the appellant loved Ammini. As rightly pointed out by the Sessions Judge, this question, even if it was not relevant and should not have been asked, appears at the very end of the confession and this had nothing to do with the validity or otherwise of the confession which preceded. Thus, the attack against Ext. P-14 does not have any force whatsoever. The next attack of the counsel is directed against the extra-judicial confessions the appellant made to P.Ws. 6 to 9. The evidence of these witnesses relating to the confessions has been read out to us. Even if some position of authority can be attributed to P.Ws. 6, 8 and 9, we are not able to find any possible taint in the confession spoken to by P.W. 7. The appellant confessed first to P.W. 7, when he and P.W. 7 were in the car. P.W. 7 says that the appellant started weeping and then in the midst of sobs he came out with the confession. His evidence appears to be quite natural; and we are not able to find any defect in the said evidence. Then comes the evidence of P.Ws. 6, 8 and 9. P.W. 7 says that the appellant started weeping and then in the midst of sobs he came out with the confession. His evidence appears to be quite natural; and we are not able to find any defect in the said evidence. Then comes the evidence of P.Ws. 6, 8 and 9. P.W. 9 was then working in Toshiba Anand Lamps; and at the time he was giving evidence, he was not in the company. He, as rightly pointed out by the Sessions Judge, could not have had any ill-will against the appellant or any special friendship towards P.Ws. 6 and 8. Therefore, his evidence also appears to be quite natural and believable. The attack against P.W. 6 is that P.W. 4, the wife of P.W. 6, had some illegitimate connection with P.W. 8, which Ammini knew, and to silence her P.W. 6 caused her death. On the footing of this suggestion in the cross-examination of P.W. 6, P.W. 4 and P.W. 8, we are requested not believe the evidence regarding the confessions to P.Ws. 6 and 8. It has come out that P.W. 8 and P.W. 4 are cousins. It is also impossible to believe that P.W. 8 had any connection with P.W. 4 as suggested. The appellant has said in his statement under section 342 of the Code of Criminal Procedure that he was coming downstairs taking money from P.W. 4 to go to the market when he met P.W. 6 going upstairs. The appellant has stated further that P.W. 6 then told him that he should go to the office and should also make the confession. According the appellant, he came down straight, entered the car and went to the office. If this is true, it is not possible, as pointed out by the Sessions Judge, that P.W. 6 could have been present at the office when the appellant went there. Even according to the appellant, P.W. 6 was present when he and P.W. 7 went to the office. A similar attack is made on P.W. 8 as well, suggesting that he is telling a lie when he says that the appellant confessed. All this is of no avail; and even the confessions before P.W. 6 and P.W. 8 must have been true. Thus, the extra-judicial confessions are also good. Now, a few words about the statements of the appellant under section 342 of the Code. All this is of no avail; and even the confessions before P.W. 6 and P.W. 8 must have been true. Thus, the extra-judicial confessions are also good. Now, a few words about the statements of the appellant under section 342 of the Code. To put it mildly, we feel that the suggestion that it was P.W. 6 who committed the murder of Ammini is fantastic. For the reason suggested by the appellant P.W. 6 would not have committed the murder of Ammini. The suggestion, as already stated, is that P.W. 8 had some connection with P.W. 4 which Ammini knew. If so, the person who was interested in silencing Ammini was not P.W. 6, but it should have been P.W. 8 or even P.W. 4. Again, if it was P.W. 6 who committed the murder, we do not think that he would have adopted this mode of killing Ammini. Even in the statement of the appellant appears that P.W. 6 had a gun; and if he wanted to kill Ammini, he would not have resorted to strangling. Still further, if P.W. 6 committed, the murder of Ammini, he would have desired to keep it a closed secret; and he would not have asked the appellant to drive the car. It is not as if P.W. 6 required the help of the appellant to remove the gunny bag either into the car or out of it. According to the appellant, it was P.W. 6 who put the gunny bag into the car and it was P.W. 6 alone who removed it out of the car and placed it near the backwaters. And the statement becomes more fantastic when it says that at Nettoor Ferry, where the road was narrow, it was P.W. 6 who reversed the car. If P.W. 6 could do all this and drive the car better than the appellant, why should he seek the help of the appellant to drive the car to go to the backwaters to dispose of the dead body? Only to let out the secret ?. And to add to the falsity and the brazen daringness of the version, P.W. 6 is said to have told the appellant that it was he who committed the murder, that the appellant must confess of the offence, that P.W. 6 would pay the appellant Rs. Only to let out the secret ?. And to add to the falsity and the brazen daringness of the version, P.W. 6 is said to have told the appellant that it was he who committed the murder, that the appellant must confess of the offence, that P.W. 6 would pay the appellant Rs. 25,000 and that if P.W. 6 disclosed the secret, he would be killed! The confession before the magistrate came after the appellant was put beyond the reach of P.W. 6 and he would not have, for the reasons mentioned by him, shouldered the responsibility for such a grave offence which would even have ended in capital punishment. It is impossible to attach any weight to this daring and devilish suggestion in the statements. It may also be interesting to note in this connection the explanation given by the appellant in his statements for the injuries he had on his fore-arms. In the confession before the magistrate he stated that Ammini scratched him when he caught hold of her neck; but in the statement he said that the dog of P.W. 6 scratched him! This speaks for itself. The counsel of the appellant has urged that the appellant would not have got the switch key of the car. P.W. 6 has stated in court that he used to keep the key on a twisted wire: but he appears to have stated to the Investigating Officer that the key was hung on a key board. P.W. 30, the Deputy Superintendent of Police, has stated that the place where the key used to be kept was shown to the Investigating Officer, but it was omitted to be noted. Therefore, this circumstance cannot help the appellant. Another circumstance the counsel has stressed is the presence of a bathing towel and a shirt belonging to the brother of P.W. 6 in the gunny bag along with the dead body of Ammini. The suggestion is that these articles would have been inside the bag only if the murder was committed by P.W. 6. We are not able to appreciate this, because, if the prosecution case is believed, the appellant and Ammini were the only persons in the house at the time of the murder and after the murder the appellant could have taken the shirt and the towel as packing material. They were just soils awaiting wash. We are not able to appreciate this, because, if the prosecution case is believed, the appellant and Ammini were the only persons in the house at the time of the murder and after the murder the appellant could have taken the shirt and the towel as packing material. They were just soils awaiting wash. Yet another feeble suggestion made by the counsel of the appellant is that none from Malabar Hotel was examined to prove that P.W. 6 also went there. We point out that, in addition to the evidence of P.W. 4 and P.W. 6, there is the evidence of P.W. 11 too on this question. P.W. 11 was the driver who drove one of the cars to Malabar Hotel. And P.W. 4 and P.W. 5, the servant in a neighbouring house, have spoken to the cause for the enmity between Ammini and the appellant the appellant's desire to marry Ammini and Ammini's, refusal to agree. Thus, none of these point raised by Mr. Prabhakaran has any substance whatever. Considerable stress is laid by the counsel of the appellant on the evidence of P.W. 10, who is said to have seen the car at Nettoor Ferry during the night of 2nd February, the fateful night. P.W. 10 was the ferry boy; and he has stated that he saw the car in which there were two people, one wearing a white uniform (meaning thereby the appellant) and another giving directions to the former to reverse the car (meaning, thereby P.W. 6). This witness was treated as hostile and cross-examined by the prosecution. His statement to the police did not mention about the second person; and this was pointed out to him in his cross-examination by the prosecution. He had studied up to 10th Standard; and he has stated that he realised the implication and the importance of the presence of two people in the car even when the police left after questioning him. Still, he did not inform the police about it, nor did he disclose this to anybody else. He has disclosed this fact for the first time when he gave evidence in court! We have carefully gone through the evidence of this witness; and we unhesitatingly endorse the view of the Sessions Judge that no reliance can be placed on his evidence. He has disclosed this fact for the first time when he gave evidence in court! We have carefully gone through the evidence of this witness; and we unhesitatingly endorse the view of the Sessions Judge that no reliance can be placed on his evidence. On the side of the defence D.W. 1 was examined and a copy of a Malayalam magazine (Yatra) was also produced. The magazine contains some photographs and some comments about the murder; and the evidence of D.W. 1 suggests that he was present when the police came to the house of P.W. 6. The witness says that there was some blood mark on the car porch and he pointed it out to the police officer. This witness appears to be a busybody trying to tamper with and hamper the proper investigation of the case; and even the counsel of the appellant did not set much store by his evidence. We therefore reject this evidence as it deserves only to be rejected. There is however one circumstance which is not explained by the prosecution by any evidence. Ammini had an injury which cut off the lower part of her nose and the upper lip. The suggestion given by the prosecution is that the appellant might have cut off the nose and the upper lip to disfigure the dead body so as to make identification difficult. The doctor who conducted the autopsy (P.W. 17) has deposed that the injury would have been caused after Ammini died, because there were no blood clots on the injury. Of course, in none of the confessions is there any reference to this injury. Nevertheless, the suggestion of the prosecution mentioned above appears to be quite probable and acceptable; and we accept the same. Now we come to the question as to what is the offence committed. The Sessions Judge has stated that the offence is culpable homicide not amounting to murder falling under Exception I to section 300 of the Penal Code, that is, causing death by a person when he is deprived of his power of self-control by grave and sudden provocation. The provocation was that Ammini said that even the appellant's father could not have stopped her from reporting to P.W. 4 about the appellant. The question is whether this was sufficient to cause grave and sudden provocation coming within Exception I to section 300. The provocation was that Ammini said that even the appellant's father could not have stopped her from reporting to P.W. 4 about the appellant. The question is whether this was sufficient to cause grave and sudden provocation coming within Exception I to section 300. We are prepared to agree with the Sessions Judge that this might have caused provocation: We are also prepared to agree with her that the provocation was sudden, because the quarrel started suddenly. But, we are not able to agree with the Sessions Judge that the provocation was so grave as to deprive the appellant of his power of self-control. No reasonable person in the position of the appellant would or should have been provoked so gravely as to lose his self-control at this incident. Therefore, the offence cannot come under Exception I to section 300. We may also point out that the front and both sides of the neck and the lower part of the face of the dead body were markedly swollen with blue discolouration of the skin over the area. There were four nail marks too over the lower part of the left side of the neck; and the subcutaneous tissue was echymosed. The left eye ball was protruding out from the socket; and the tongue was also protruding. All these appear in the post-mortem certificate Ext. P-12; and it is evident from these that considerable force must have been applied when Ammini was strangled. There must then have been the intention to kill, or, the appellant must have at least "known that his act was so imminently dangerous that it must, in all probability, cause death. The offence must therefore have been murder. The further question is whether, even if the offence fell under section 304, it would have come under part II of the section. The Sessions Judge has not given any reason as to how the offence would come under part II. She has to be told that the crucial point to be decided in a case like this is the mens rea requisite for the offence. The Sessions Judge has not given any reason as to how the offence would come under part II. She has to be told that the crucial point to be decided in a case like this is the mens rea requisite for the offence. If the act was done with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death, the offence would come under part I. On the other hand, if the mental element was not intention' but only 'knowledge' the knowledge that the act was likely to cause death or to cause such bodily injury as was likely to cause death, then the offence would fall under part II. The Sessions Judge has not indicated how the offence came under part II: she has not even discussed the question. The Public Prosecutor has stated that the offence was culpable homicide not amounting to murder and that it would also fall under part II of section 304! we are surprised; and we find it difficult to agree with this. And we observe that the Public Prosecutor is also in error when he says this. Now that there is no appeal by the State against acquittal, there is no question of convicting the appellant either under section 302 or under section 304 part I. The only question we need consider is whether we should enhance the punishment under section 304 part II in the exercise of our suo motu revisional powers. The normal rule is that the sentence is in the discretion of the judge who tries the case. Unless the appellate court feels that the punishment is so strikingly inadequate that no normal judicial mind would have imposed such an inadequate punishment, the appellate court will not enhance the punishment: that the appellate court, left to itself, would have imposed a more severe punishment should not be the ground for enhancing the punishment [vide Dalip Singh v. State of Punjab, A.I.R. 1953 S.C. 364]. If the conviction under section 304 part II stands, can it be said that in this case the sentence of rigorous imprisonment for six years is inadequate? Considering the maximum sentence provided for the offence, we do not think that the sentence is so strikingly inadequate as to make us feel that no normal judicial mind would have imposed such an inadequate punishment. Considering the maximum sentence provided for the offence, we do not think that the sentence is so strikingly inadequate as to make us feel that no normal judicial mind would have imposed such an inadequate punishment. Therefore, we do not propose to enhance the sentence either. There is not much dispute regarding the offence under section 201 of the Penal Code if the prosecution case is believed; and the conviction and sentence under this count have also to be confirmed. The convictions and sentences are confirmed and the appeal is dismissed. The revision case is also dismissed.