1997 Supreme(SC) 1478

1997(9) Supreme 394
SUPREME COURT OF INDIA
(From Kerala High Court)
G.T. Nanavati & M. Jagannadha Rao, JJ.
Ammini & Ors. -Appellants
versus
State of Kerala -Respondent
Criminal Appeal No. 521 of 1987
Decided on 18-11-1997
Counsel for the Parties :
For the Appellants : Romy Chacko and N. Sudhakaran, Advocates.
For the Respondent : A.S. Nambiar, Sr. Advocate and G. Prakash, Advocate.

Headnote:(i) Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970-Section 2(a)-Appeal- Indian Penal Code, 1860-Sections 120-B(1) and 302/34-Four appellants were prosecuted for committing murders of deceased and her two little children-Sessions Court acquitted them-On appeal, High Court convicted them under Section 120-B(1) and Section 302/34 IPC-Appeal against-Death by poisoning-No eye witness-Only circumstantial evidence-Motive-Evidence regarding movements of A1, A3 and A4 between 6 and 7.00 p.m. near house of deceased-Find of finger prints of A3 on one of the glasses seized from house of deceased-Confession of A4-Discovery by A4 of a bottle containing cyanide-Discovery by A2 of a gold chain belonging to deceased-Medical evidence-Circumstances establish guilt of appellants beyond reasonable doubt-Conviction recorded are legally sustainable.

       Held : On re-appreciation of the evidence the High Court held that most of the circumstances relied upon by the prosecution were proved beyond reasonable doubt, that they formed a complete chain and that in absence of any valid explanation by the accused they were sufficient to lead to a conclusion that all the four accused had entered into a criminal conspiracy to murder Merli and her children and did murder them between 7.00 p.m. and 7.45 p.m. on 23.6.1980. It, therefore, allowed the appeal, set aside the acquittal of the accused and sentenced them to suffer imprisonment for life. Same contentions which were urged on behalf of accused before the High Court were urged before us. We agree with the reasons given by the High Court for rejecting them. Other reasons have been stated by us earlier while pointing out how the view taken by the trial Court regarding each circumstance was not proper. The evidence regarding the movements of A1, A3 and A4 between 6 and 7.00 p.m. near Tomy s house, the find of finger prints of A3 on one of the glasses seized from the house of Tomy and the confession of A4 together with other circumstances stated above establish the guilt of the accused beyond reasonable doubt. (Paras 23, 24)

       (ii) CRIMINAL TRIAL-Evidence -Murder by poisoning-Evidence of PWs 15 and 16 from whose shops accused purchased insecticide-No bill not issued as PW15 was acquainted with A3-Trial Court not justified in discarding his evidence merely because name of A3 not mentioned in bill-No requirement of mentioning name of purchaser of insecticide in the bill. (Para 8)

       (iii) CRIMINAL TRIAL-Murder case-No eye witness-PW38, an employee in shop of husband of deceased saw A1 and A3 sitting in house of deceased-Trial Court not justified in disbelieving him merely because he did not identify A3 in Court-High Court rightly accepted evidence of PW38 as there was nothing to create doubt regarding truthfulness of his version. (Para 8)

       (iv) CRIMINAL TRIAL-Killing by poisoning-Purchasing of parataph and eccalex by A3 from PW20-Recovery of empty bottles from courtyard of house of A1 at instance of A4-Recovery of MO44 containing mixture of parataph and eccalex at the instance of A2-Circumstances indicate joint attempt by four accused.

       Held that MOs 31 and 32 did not have any label on them but PW20 was able to identify them by their caps being familiar with them. The High Court was, therefore, right in holding that the prosecution was able to establish that the bottles which were discovered by A3 from the court-yard of the house of A1 were the bottles of parataph and eccalex. A3 s knowledge about the concealment of those bottles was no innocent. When facts, which have a bearing on the guilt of the accused, are established, yet denied by the accused they assume importance. This aspect was totally missed by the trial Court. Similarly, MO 44, though recovered from a place accessible to all, was found from under the water and was thus not visible to all. It was A2, who had taken it out of water. Moreover the contents of the bottle turned out to be the mixture of parataph and eccalex as stated by A2. The statement made by A2 before recovering the bottle thus stood corroborated. (Para 11)

       (v) CRIMINAL TRIAL-Killing by poisoning-To prove that A4 had procured potassium cyanide, prosecution examined PW23 & PW27-PW27 was working in a jewellery shop-Shop owner had licence to possess potassium cyanide-Trial Court not justified in disbelieving PW27 on ground that he did not have a licence to possess cyanide-High Court was right in admitting it. (Para 12)

       (vi) CRIMINAL TRIAL-Killing by poisoning-No eye witness-PW8, an officer in Life Insurance Corporation, saw one woman A1 coming out of house of deceased at 7.30 p.m.-He saw the same woman A1 in house of deceased on day of funeral-Admissibility of evidence of PW8. (Para 15)

       (vii) CRIMINAL TRIAL-Killing by poisoning-No eye witness-At 7.30 p.m. PW13 while passing by house of deceased heard a cry of a child coming from that house-It was drizzling-As no further cry heard, she proceeded further-Relevant circumstance to prove that at about 7.30 p.m. something had happened in house of deceased. (Para 16)

       (viii) CRIMINAL TRIAL-Killing by administering cyanide-No eye witness-While administering poison, A3 and A4 had received injuries-What A3 and A4 told doctors amounted to an admission-They were admissible in evidence. (Para 17)

       (ix) CRIMINAL TRIAL-Murder case-Find of finger prints of A3 on one of the two glasses seized from house of deceased-Earlier photographs of those impressions were not clear-Subsequent photographs were better-Admissibility of evidence. (Para 18)

       (x) CRIMINAL TRIAL-Evidence -Confession-While remanding A4 to judicial custody, Judicial Magistrate directed to keep A4 away from police and co-accused-Such a direction cannot be regarded as a circumstance indicating that confession was not voluntary-Circumstance that Judicial Magistrate started recording confession within a short time after A4 was produced before him-No inference could be drawn that he was not making confession voluntarily-Confession retracted four days after accused released on bail-During his examination under Section 313 Cr.P.C. he alleged that he made confession under pressure-Trial Court was not justified in holding that confession was not voluntarily made.

       Held : The trial Court ought to have appreciated that the confession was retracted four days after the accused was released on bail. No such complaint was made by him while he was in judicial custody from 7th till he was released on bail after about a fortnight. Except the bare allegation there was no material on record to indicate that police had pressurised A4 or had forced him to make the confession. The trial Court was not justified in considering the length of the confession as a suspicious circumstance. The confession was a complete record of the steps taken by the Magistrate, the questions put to the accused and the answers given by him. The High Court has also pointed out how other reasons given by the trial Court are also improper. While agreeing with the trial Court that the Judicial Magistrate had failed to inquire from A4 as to whether he was promised that he would be made an approver if he made the confession, the High Court held that this omission was of no significance as A4 was clearly warned that if he made a confession it was likely to be used against him. The High Court was also right in holding that the trial Court in relying extensively on the case diary had committed an illegality. The omission found by the trial Court as a result of that illegal effort were minor and did not justify the conclusion that the confession was not voluntarily made. In the absence of any requirement that separate reasons were required to be recorded for believing that the confession was made voluntarily it was not proper for the trial Court to doubt its genuineness on the ground that the reasons were not recorded separately though the satisfaction was recorded in the memorandum. The High Court was therefore right in placing reliance upon the confession made by A4. (Para 21)

       (xi) Evidence Act, 1872-Section 10-Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence-Anything said, done or written by any of such persons in reference to their common intention-Relevant fact as against each of the persons believed to be so conspiring. (Para 22)

       (xii) CRIMINAL TRIAL-Evidence -When facts, which have a bearing on guilt of accused, are established, yet denied by accused-They assume importance. (Para 11)

       (xiii) Criminal Procedure Code, 1973-Section 293(4) - Expression Director -Joint Director is comprehended by the expression-Report signed by Joint Director-Admissible in evidence. (Para 11)