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KERALA HIGH COURT
K. Vinod ChandraN, Ziyad Rahman A.A., JJ.
Balu S/o. Manikyan – Appellant
Versus
State of Kerala – Respondent
Crl. A. No. 418 of 2021
Decided on 26-08-2021
Counsel for the Parties:
For the Appellant : Sri. V. John Sebastian Ralph, Sri. B. Deepak, Sri. Vishnu Chandran, Sri. Ralph Reti John, Sri. Appu Babu, Smt. Shifna Muhammed Shukkur
For the Respondent:Smt. S. Ambika Devi, Advocate.
IMPORTANT POINTS
(1) Diatom test cannot differentiate between an accidental drowning and a forceful one.
(2) Privilege under Article 20 (3) of Constitution, do not in any manner, affects principle under Sec.103 and Sec.132 of Evidence Act.
(3) Even if intention of accused was limited to infliction of a bodily injury sufficient to cause death in ordinary course of nature, and did not extend to intention of causing death, offence would be “murder’’.
Headnote:
(A) Indian Penal Code, 1860 – Sections 299, 300 and 304 – Murder – Culpable homicide not amounting to murder – Even if intention of accused was limited to infliction of a bodily injury sufficient to cause death in ordinary course of nature, and did not extend to intention of causing death, offence would be “murder’’ – Whenever a court is confronted with question whether offence is “murder” or “culpable homicide not amounting to murder”, on facts of a case, it will be convenient for it to approach problem in three stages – Question to be considered at first stage would be, whether accused has done an act by doing which he has caused death of another – Proof of such causal connection between act of accused and death, leads to second stage for considering whether that act of accused amounts to “culpable homicide” as defined in Section 299 – If answer to this question is prima facie found in affirmative, stage for considering operation of Section 300 of Penal Code, is reached – This is the stage at which court should determine whether facts proved by prosecution bring the case within ambit of any of four clauses of definition of “murder” contained in Section 300 – If answer to this question is in negative offence would be “culpable homicide not amounting to murder”, punishable under first or second part of Section 304, depending, respectively, on whether second or third clause of Section 299 is applicable – If this question is found in positive, but case comes within any of exceptions enumerated in Section 300, offence would still be “culpable homicide not amounting to murder”, punishable under first part of Section 304 of Penal Code. (Paras 19 and 21)
(B) Constitution of India – Article 20(3) – Indian Evidence Act, 1872 – Sections 103 and 132 – Right against self-incrimination – Privilege under Article 20 (3), do not in any manner, affects principle under Sec.103 and Sec.132 of Evidence Act – Proviso to Section 132 incorporates privilege under Article 20(3) and no such answer which directly or indirectly tends to criminate witness would subject him/her to any arrest or prosecution or be proved against him/her in any criminal proceeding; if there is a compulsion in answering question – Prohibition or protection does not apply when there is a voluntary deposition made as in case of an accused offering himself to be examined as a witness; when he would also have to subject himself to cross-examination. (Paras 12 and 14)
(C) Indian Penal Code, 1860 – Section 302 – Indian Evidence Act, 1872 – Section 27 – Murder – Snatching of gold chain – Conviction and sentence – Circumstances established by prosecution form an unbroken chain establishing presence of A1 at scene of occurrence, his flight over canal bund, that too in drenched clothes, availing assistance of a local (A2) to pledge stolen ornament and having purchased two rings and two watches, one each of which was seized from person of A1 and A2, on apprehension by Police – Diatom test cannot differentiate between an accidental drowning and a forceful one – Suggestion in cross-examination that injuries could have been caused by floating body coming into contact with hard objects was negatived by doctor since injuries noted were all ante-mortem and not post-mortem injuries – Injuries are not that could be caused by a mere fall as opined by Doctor – A1 found in possession of chain worn by deceased had a motive – Being closely acquainted with accused it is possible of a sure identification, in event of victim of chain-snatching being left to live – No reason to interfere with impugned judgment. (Paras 30, 32 and 34)
Result: Appeal rejected.
JUDGMENT
Vinod Chandran, J.—The lure of gold has begotten more crimes than any reasonable man would think; often snuffing out innocent lives. ‘Crime doesn’t pay’ is an adage which the deviants, the desperate and some desperadoes pay little heed to. Here we have a migrant labourer, eking out his living from odd jobs, snatching a valuable gold chain from the body of a housewife and drowning her; presumably in a bid to avoid identification.
2. The appeal is of the year 2021 and we took it out of turn since we take up matters giving priority to those convicted and imprisoned earliest. The appeal itself was filed with a delay of 6300 days and the appellant has been languishing in jail from 2001 onwards. The case set up by the prosecution rests entirely on the circumstances attempted to be proved through seventeen witnesses, twenty documents and twelve material objects. The defence is total denial and the learned Counsel for the accused asserts his right to silence and picks holes in the evidence led by the prosecution.
3. Sri. John S. Ralph, learned Counsel appearing for the appellant, submits that though the cause of death is undoubtedly drowning, whether it is accidental or forceful, has to be proved by the prosecution and the evidence led falls short of absolute proof of the victim having been forcefully drowned. Even if the chain snatching is found to be established, there is absolutely nothing to find an intention to kill or even a knowledge that the act of chain snatching would lead to the death of the victim. The dead-body did not show signs of any struggle which would have been evident from the presence of algae and water plants on the body of the victim; which were totally absent. The prosecution also failed to carry out a diatom test. The injuries found on the body of the victim indicates an accidental drowning. The recovery is not one under Section 27 of the Evidence Act, since the facts allegedly disclosed, was already known to the police. The police knew about the sale of the chain which led to the arrest of the accused. Only that knowledge could have led to A2 and through him A1, who is the appellant before this Court. The learned Counsel relies on Sukhbinder Singh v. State of Punjab (1994) 5 SCC 152 to urge that Section 27 cannot be used to rediscover an already discovered fact. The confession is a joint one and the Investigating Officer I.O does not speak about the exact words used by the confessor. Mohd. Abdul Hafeez v. State of A.P. AIR 1983 SC 367 and Thampi Sebastian v. State of Kerala 1988 (1) KLT 247 are relied on to further buttress the above contention. The pledging of gold ornaments even if proved, was by A2 and not A1. On the authorship of the confession, reliance is placed on Ramachandran v. State of Kerala 2009 Cri.LJ 168 . There is no proper identification as held mandatory in Vayalalil Girishan v. State of Kerala 2016 Crl .LJ 1724. There was no Test Identification Parade TIP , which is fatal since many of the witnesses have no prior association with A1. The identification of the ornaments carried out first in Court is a weak piece of evidence as held in Pannayar v. State of Tamil Nadu AIR 2010 SC 85 . The over anxiety of the prosecution to nail the accused is evident from the identification of MO2 gold ring by PW2 which was purchased by the accused to which PW2 is not privy.
4. The learned Counsel would in conclusion refer to Sections 299, 300, 302 and 304 IPC to contend that if at all the snatching of a chain is proved as against A1, there can only be a pure and simple ‘culpable homicide’ alleged against him as defined under Sec.299 and not murder under Sec.300. The learned Counsel argues that Sec.299 is distinct and different from murder as defined under Sec.300 and is akin to manslaughter, which falls short of murder as understood in the United States of America. The appellant’s ref
