Headnote:
Criminal Procedure Code, 1973 - Sections 164, 278 - Statement of witness - use of statements - Statutory duty - Findings of - Held, Word "statement" is used in S.164 of the Crl.P.C. in a wider sense - Statement made under S.164 Crl.P.C. is not inadmissible in evidence - It can be used either to corroborate or contradict the statements made in the court by a person who gave statement before the Magistrate in the manner provided in Sections 145 and 157 of the Evidence Act - Admission of such statements in evidence are governed and controlled by the provisions of Indian Evidence Act - Statutory requirement is to be strictly complied with by the Judges and Magistrates - If the Judge/Magistrate fails to discharge the statutory duty of reading over the deposition to the witnesses in the open court as enjoined by S.278 of the Code of Criminal Procedure, the accused or his Advocate should insist that the deposition shall be read over to the witness in the open court - S.162 Cr.P.C. imposes an absolute bar to the use of the statements - Intention behind S.162 Cr.P.C. is to protect the accused from being prejudicially affected by any dishonest or questionable methods adopted by an overzealous police officer. A combined reading of Ss.161 and 162 Cr.P.C. shows that the attention of the witness is to be called to the previous statement before the same can be proved - Murder is also gruesome like any other murder - It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders - Court is of the considered opinion that this is not a fit case in which death sentence can be awarded - Court decline to confirm the capital sentence imposed in this case.

Judgement Key Points

Key Points: - The court discusses whether death sentence can be awarded and ultimately declines to confirm capital sentence, modifying to life imprisonment (!) [15000032580084][15000032580086][15000032580087]. - It examines the use and scope of statements recorded under Section 164 Cr.P.C. and the bar on using 162 Cr.P.C. statements as substantive evidence, emphasizing corroboration/contradiction rather than primary evidence [15000032580052][15000032580053][15000032580054][15000032580075]. - It analyzes identification of accused and the reliability of Test Identification Parade, and the sufficiency of circumstantial evidence linking abduction, murder, and robbery to the accused [15000032580063][15000032580068][15000032580069][15000032580083]. - It addresses the chain of circumstances proving guilt beyond reasonable doubt and the role of recovery of M.O.3 watch and other material objects in establishing guilt [15000032580080][15000032580081][15000032580082]. - It discusses violations of procedural requirements (reading deposition in open court, Section 278 Cr.P.C.) and their impact on trial, labeling some irregularities curable [15000032580072] (!) (!) . - It concludes on the proper disposal of property and how to handle absconding accused regarding final orders [15000032580088].

What is the legality and propriety of imposing the death penalty in this case?

What is the admissibility and use of 164 Cr.P.C. statements and 162 Cr.P.C. statements in the evidence?

What is the proper evaluation of circumstantial evidence to sustain a conviction for abduction, murder, and robbery?

Judgment :-

Padmanabhan Nair, J.

The Death Sentence Reference is made by the Additional District & Sessions Judge (Adhoc) Fast Track, Kalpetta under Section 366(1) of the Code of Criminal Procedure for confirmation of the capital sentence imposed on the second and fourth accused in Sessions Case No.317 of 1999 on the file of that Court. They were found guilty of the offences punishable under Sections 364, 302 and 392 read with Section 34 of Indian Penal Code, convicted and sentenced to death for the offence under Section 302 read with Section 34 I.P.C. For the offences punishable under Sections 364 and 392 I.P.C. they were sentenced to undergo rigorous imprisonment for 10 years each. It was further ordered that if the fine is realized, an amount of Rs.1,00,000/= should be paid to the legal representatives of the deceased as compensation under Section 357(3) of the Code of Criminal Procedure. Set off was also allowed.

2. Crl.Appeal No.37 of 2005 is filed by the above said accused challenging the conviction and sentence imposed on them.

PROSECUTION VERSION

3. Deceased Kuttan @ Manojkumar, a taxi driver by profession, was the brother-in-law of P.W.3 (Vijayakumar). P.W.3 purchased a new jeep on 28-9-1995 from P.W.39 Baby under Ext.P4 agreement. P.W.39 Baby under Ext.P4 agreement. P.W.39 had purchased the jeep from P.W.38, Paran, the Original owner under Ext.P24 agreement dated 17-9-1995. On 12-10-1995 deceased Manojkumar went to the house of P.W.3 and requested him to give the jeep for three days promising to return the jeep on the evening of 15-10-1995 after his trip to Mahe for attending the annual festival of Mahe Church which was going on at that time. P.W.3 permitted Manojkumar to take the jeep and accordingly he took the jeep. Manojkumar owned two other jeeps.e used to park his vehicles at the Taxi stand at Ambalavayal. On 15.10.1995 also he reached the stand with the jeep belonging to P.W.3 and parked the same there. At about 4.30 P.M. on that day, the jeep was hired by accused 2 to 4 for going to Thamarassery. Manojkumar went to Thamarassery with those persons. Thereafter nobody had seen Manojkumar alive. According to prosecution, on the way to Thamarassery, A1 also boarded into the jeep from Koodathayi. They went to Kakkayam. They started their return journey at about 9.30 p.m. in the night. When they reached a place by name “Kariyathan Para” the accused murdered Manojkumar by strangulating and smothering him. They removed the pant and shirt worn by the deceased and had stolen the purse with money and the Watch belonging to the deceased. Thereafter they dumped the dead body into Koodathayi River from the Koodathayi Bridge and took the jeep to Thopramkudy at Idukki for the purpose of selling the same.

4. On 16.10.1995, P.W.1 (Sureshbabu), the younger brother of Manojkumar went to Ambalavayal Town and made enquiries about Manojkumar P.W.2 (Purushothaman) told Sureshbabu that Manojkumar had gone to Mahe and he will be coming back on the 16th. On 16th also Manojkumar did not return. On 17-10-1995 P.W.1 and others went to the house of P.W.3 and enquired about Manojkumar. P.W.3 informed them that Manojkumar did not return his jeep on 15-10-1995 and he had not seen Manojkumar after 12.10.1995. P.W.1 and others came to the house of P.W.9, the elder brother-in-law of Manojkumar, and informed him that Manojkumar was missing. They went to Ambalavayal Police Station. P.W.1 gave Ext.P1 First Information Statement. P.W.48, the S.I. on duty recorded Ext.P1 and registered Ext.P1(a) F.I.R.No.162 of 1995 under the caption “man missing”.

5. On 16.10.1995 in the afternoon, P.W.10 and others saw a dead body of an unidentified youth drifting in the Koodathayi River near the Koodathayi Bridge under the jurisdiction of Thamarassery Police Station. Except for a brief (shuddy) found on the dead body, it was naked. P.W.10 and one Baby retrieved the dead body from the river, placed it on the shore. P.W.10 went to Thamarassery Police Station and gave Exhib

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