Judgment :- Thomas, J. When a panchayat member saw the dead body of a woman floating in the river beneath Pulikcczhu bridge, he promptly reported the matter to the local police. The dead body was later identified as that of one Pathumma Beevi, who was mother of six children and grandmother of two children. After investigation, police alleged that Pathumma beevi was murdered by the appellant who is a relative of her husband. Sessions Judge convicted him of Ss.302 and 392 of the Indian Penal Code and sentenced him to imprisonment for life and rigorous imprisonment for 7 years, respectively. He has lilcd this appeal. 2. Prosecution case is that when appellant met Pathumma beevi on 25-10-1988 at the house of her husband's nephew (one Alikulty, who had come on leave from a Gulf country) appellant decoyed her to the place where she died by pretending that he would get cloth pieces from his friend's house. The further case is that when they reached near the place, appellant pushed her into the river and kept her immersed in water forcibly until she died and then removed her gold ornaments worth Rs.4,300/-. 3. The dead body was first spotted on the morning of 26-10-1988 by a girl whose residence was in the vicinity of Pulikeezhu bridge. She informed the local panchayat member (PW.1) about it. The clothes worn on the dead body indicated that she was a Muslim woman, and hence the body was buried in the burial ground attached to a mosque after holding the inquest and conducting the autopsy. 4. When Pathumma beevi did not return from Alikutty's house on the same night her husband assumed that she would have stayed there over night. But he became 'anxious when he knew later that she had left his nephew's house on the same night in the company of the appellant and so he made enquiries at other places. On 27-10-1988 morning he came to know that the dead body of a woman was recovered from Pulikeezhu river and then he went to the police station and realised from the photos of the dead body that it was the dead body of his wife.) 5. On 27-10-1988 morning he came to know that the dead body of a woman was recovered from Pulikeezhu river and then he went to the police station and realised from the photos of the dead body that it was the dead body of his wife.) 5. As all the ornaments worn by Pathumma Beevi were not seen on the dead body (except a waist chain and one ear stud) police suspected that the death could have been a case of homicide for gain. On 29-10-1988 appellant was arrested and on the basis of his information, a gold chain was recovered from one Baladevan (PW.6) and the other items were recovered from the drawer of a table in the house of Alikutty. 6. There is no dispute now that the dead body described in Ext.P2 inquest report was that of Pathumma beevi. Hence we need not labour on the question of identity of corpus delicti in this case. The main contention raised by the learned counsel for the appellant is that prosecution has failed to prove that the appellant had taken the gold ornaments of Pathumma Beevi. He contended, alternatively, that at the worst appellant can be convicted only of the offence under S.404 of the Indian Penal Code. 7. The circumstances pitted against the accused are the following: (1) Dead body of the deceased was found floating in the river beneath Pulikeezhu bridge on the morning of 26-10-1988 and it was a case of drowning (2) Appellant and deceased were found together on the night of occurrence within close proximity to Pulikeezhu bridge (3) Deceased was wearing gold ornaments including M.Os. 6 to 9, but those ornaments were missing on the dead body when it was found floating in the river. (4) Pinna of the ear showed a tear indicating that atleast one ear ornament was forcibly plucked off (5) Appellant was in possession of M.0.6 gold ornament on 26-10-1988 and he was later found to be in possession of M.Os. 7 to 9 gold ornaments also. 8. First circumstance referred to above was spoken to by P.W.I, the Panchayat member. Ext.P2 inquest report also lends credence to it. Dr.Sreekumran Nair (PW.22) who conducted the autopsy has expressed his undoubted opinion that death was due to drowning. All the data provided in Ext.P5 post mortem certificate are consistent with the said conclusion. In fact this point is not in dispute. Ext.P2 inquest report also lends credence to it. Dr.Sreekumran Nair (PW.22) who conducted the autopsy has expressed his undoubted opinion that death was due to drowning. All the data provided in Ext.P5 post mortem certificate are consistent with the said conclusion. In fact this point is not in dispute. 9. PW.4 (who was an altinderina tutorial college) said that he saw appellant and deceased together at about 8.30 p.m. on the date of occurrence near his house. The place where the witness met them was only two turns away from Pulikeezhu bridge. The witness and the appellant when met together exchanged formal courtesy words to each other. PW.4 disclosed to the son of the deceased (PW.3) two days later that lie saw the appellant and deceased together at the said place. PW.10 is another witness who saw them together at about 9.30 p. m. on the side road very near to the bridge. PW.10 deposed that he had to reverse his car for negotiating a road curve due to narrowness of the road, and then he could clearly identify both. In cross-examination he denied having stated to the police that he noticed the ornaments of the deceased and the clress of the appellant. But the case dairy notes relating to the witness contain statements to that effect. It is contended that on account of the said discrepancy with the case diary note the witness stands discredited. But, we are not inclined to sidestep his testimony merely because he denied having staled so to the police. Having considered their evidence, we too feel, as the learned Sessions Judge felt, that reliance can be placed on their evidence. 10. There is overwhelming evidence in this case to prove that M.Os. 6 to 9 gold ornaments belonged to the deceased and that she was wearing them on 25-10-1988. Defence could not make even a dent on that part of the prosecution evidence. Those ornaments were missing from the dead body, when it was recovered from the river. 11. One of the sturdy circumstances has been spoken to by the investigating officer. He deposed to the information elicited from the appellant during interrogation that the gold chain was pledged with PW.6 and the other gold ornaments were kept in a locked up drawer at Alikutty's house. 11. One of the sturdy circumstances has been spoken to by the investigating officer. He deposed to the information elicited from the appellant during interrogation that the gold chain was pledged with PW.6 and the other gold ornaments were kept in a locked up drawer at Alikutty's house. PW.6 gave evidence that appellant met him with M.O.6 (gold chain) on 26-10-1988 and requested him to advance a sum of Rs. 1,000/- on the security of the gold chain and that P. W.6 raised the amount from PW.5 by pledging the ornament with him. PW.6 took back the ornament from PW.5 when police questioned him. We have absolutely no reason to doubt the truth of what PWs. 5 and 6 said in court, particularly when the gold chain was produced by PW.5. It has come out from the evidence of PWs.7, 8,15 and 16 that the appellant was spending money lavishly on the next day of occurrence. Pursuant to the information about the other gold ornaments investigating officer took the appellant to Alikutty's house and he disinterred a key from a buried place and opened a locked up drawer from where M.Os.7 to 9 gold ornaments were recovered. Thus the information supplied by the appellant and deposed to by the investigating officer became admissible in evidence under S.27 of the Evidence Act. We have no reason to doubt the truth of the aforesaid items of evidence. 12. Thus, there is unimpeachable evidence to establish that appellant removed gold ornaments from the deceased either before or after her death. We have now to consider the more important argument of the learned counsel that the evidence would, at the most, show that the appellant had removed the gold ornaments from the dead body since there is no positive medical evidence that deceased was murdered. 13. In all or most cases of homicide by drowning the culprits have the initial advantage that the doctor who conducted autopsy could only say that death was due to drowning, A Division Bench of this courUias held in State of Kerala v. Mani (1991 (2) KLT 208) that court can conclude regarding cause of death in spite of absence of positive medical evidence. In this case the only question, regarding the cause of death, is whether a. Pathumma beevi was murdered or her death by drowning was merely accidental. In this case the only question, regarding the cause of death, is whether a. Pathumma beevi was murdered or her death by drowning was merely accidental. We need not bother ourselves with the possibility of her committing suicide since -mmhcjL, side has even a remote suggestion like that. 14. On the broad probabilities in this case, it is preposterous to think that Pathumma beevi would have drowned without appellant seeing it. If she had accidentally fallen into the river the appellant would have certainly raised a hue and cry, If not he himself made all efforts to rescue her. What is clearly proved is that he had removed the gold ornaments from her and left the scene when the body remained in the river. In this context it is important to note one of the features on the dead body that the car ornament (either single or plural) would have been plucked off either before or immediately after death of the deceased. We shall deal with that aspect in detail since it also involves a legal question. 15. Ext.P2 inquest report contains a recital to the effect that the right car of the dead body was bruised showing the indications that the ornament therefrom was plucked off' and that blood was oosing from that ear. Learned counsel contended that the said recital in the inquest report cannot be treated as evidence in this case since the Sub Inspector who held the inquest has not given oral evidence (when examined as P W.23) that he saw the aforesaid feature on the ear. According to learned counsel, substantive evidence is only what the witness speaks as having seen by him and the entry made in the inquest report can at best be used to refresh his memory. 16. Inquest report was prepared as per Section 174 of the Code of Criminal Procedure (for short 'the Code'). The section requires the police officer concerned to proceed to the place where the dead body is found, on getting information that a person has died cither by committing suicide or in an accident or under circumstances raising reasonable suspicion that he has been murdered, and to make investigation. The section requires the police officer concerned to proceed to the place where the dead body is found, on getting information that a person has died cither by committing suicide or in an accident or under circumstances raising reasonable suspicion that he has been murdered, and to make investigation. He shall then draw a report of the apparent cause of death describing such wounds, fractures, and other marks of injury (as may be found on the body) and State in what manner or by what weapon or instrument, (if any) such marks appear to have inflicted. Thus the inquest report is a record which a police officer has to draw up as enjoined by law. It is an official document prepared by virtue of a statutory duty. 17. Reference has to be made S.35 of the Evidence Act. It makes relevant an entry in any official record containing a fact in issue or relevant fact entered by a'public servant in the discharge of his official duties. Supreme Court has held that the entries in the general diary of the police would fall within the ambit of S.35. (State of U.P. v. Raju AIR 1971SC 708). We shall now see how far recitals made in the inquest report are relevant and hence admissible in evidence. 18. Inquest report would, in the ordinary course consist of three types of recitals. First category consists of the statements made by persons interrogated by the. investigating officer during inquest. Second category consists of the opinions of the persons in whose presence the inquest was held. Third is the record of what the investigating officer had seen with his own eyes. The first category has no evidentiary value. Second category cannot be used as evidence on account of more than one inhibition, main among them is the bar contained in S.162 of the Code. But the third category is not subject to any such legal disability. We have not come across any legal hurdle against accepting them as admissible evidence. If the inquest report is proved under law, the recitals falling under the third 'category mentioned above are relevant under S.35 of the Evidence Act and are admissible in evidence even if the officer fails to repeat them in his oral evidence. 19. We have not come across any legal hurdle against accepting them as admissible evidence. If the inquest report is proved under law, the recitals falling under the third 'category mentioned above are relevant under S.35 of the Evidence Act and are admissible in evidence even if the officer fails to repeat them in his oral evidence. 19. Learned counsel referred us to the decisions reported in Pandurang v. State of Hyderabad (AIR 1955 SC 216) and Surjan v. State of Rajasthan (AIR 1956 SC 425). In Panduranga's case Vivian Bose, J. has observed that "it is questionable how far an inquest report is admissible except under S.145 of the Evidence Act, but we do not regard it as of value so far as the appellants are concerned". In the inquest report involved in that case notices was made about 8 injuries (four incised injuries and 4 black and blue masks whereas the post mortem certificate mentioned only four incised injuries). Explanation given by the doctor was not acceptable to the Supreme Court. It was in the above context that the Supreme Court made the said observation. In Surjan 's case (cited supra) Supreme Court was considering the description contained in the inquest report regarding the injury found on the dead body as "an injury inflicted with a lathi near the top of the head". The description obviously incorporates more than what the police officer saw with his own eyes on the dead body. That is why the Supreme Court said that the statement in the inquest report is not evidence by itself and it certainly cannot be pitted against the evidence of the medical witness. 20. In RameshwarDayal v. State of U.P. (AIR 1978 SC 1558) Supreme Court found that when the statement made in the inquest report relates to what the officer saw by himself such statement is admissible in evidence notwithstanding absence of oral evidence regarding the case. In that case one investigating officer had deposed in evidence that he saw 4 "empty" cartridges at the spot of occurrcnce. It was argued before the Supreme Court that as a matter of fact there were four "live" catridges at the spot and no empty catridge was found. In that case one investigating officer had deposed in evidence that he saw 4 "empty" cartridges at the spot of occurrcnce. It was argued before the Supreme Court that as a matter of fact there were four "live" catridges at the spot and no empty catridge was found. To bolster up the said point reliance was placed on the entry made by the police officer in the inquest report to the effect that four live catridges were lying at the spot. It was contended that the said statement in the inquest report cannot be used as evidence since its maker did not say so in court. In support of the said contention a few decisions were cited before the Supreme Court. One of the decisions cited was Surjan's case. Their Lordships distinguished all the decisions on facts and held thus: "Statement made by the investigating Officer in the inquest report is not a statement made by any witness before the police during investigation, but it is a record of what the investigating officer himself observed and found and such evidence is the direct or primary evidence in the case and is, in the eye of law, the best evidence. Unless the record is proved to be suspect or unreliable perfunctory or dishonest, there is no reason to disbelieve such a statement in the inquest report." 21. The above discusson we hold that the particular recital in Ext.P2 inquest report is admissible in evidence. Now the question is whether the said recital ca n be relied on as true. Learned counsel contended that since the doctor did not notice any injury on the dead body, the aforesaid statement in the inquest report looses its probative value. It is possible that the doctor would have missed noticing that minor injury on the pinna of the ear. We say this because the doctor admitted that he did not verify how many holes were on the pinna of the ear eventhough he said that the pinna contained holes. We feel that the doctor would not have clearly examined the pinna of the ear. When there is positive evidence regarding the existence of a fact it deserves consideration. That fact cannot be sidelined merely because another person has omitted to notice it. We feel that the doctor would not have clearly examined the pinna of the ear. When there is positive evidence regarding the existence of a fact it deserves consideration. That fact cannot be sidelined merely because another person has omitted to notice it. Hence we take the view that the ear ornament was plucked off by the assailant soon before or soon after the death of the deceased. 22. From the above circumstances, we reach the irresistible conclusion that deceased was murdered by the appellant for robbing her ornaments. We, therefore, confirm the conviction and sentence and dismiss the appeal.