Point of law: Diatom test was not conducted does not hold any water since it would not have indicated anything more than the cause of death by drowning and would have only further confirmed it. Diatom test is an important tool for the diagnosis of death in drowning cases, as the typical features of ante-mortem drowning disappear rapidly with putrefaction. The diatom test cannot differentiate between an accidental drowning and a forceful one.

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 refusal to offer an explanation has been projected by the prosecution, for which reliance is sought to be placed on