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PETITIONER: AMMINI AND OTHERS

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       18/11/1997

BENCH: G.T. NANAVATI, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      The appellants  four in number, were tried in the Court of the  Additional Sessions  Judge, Parur,  in Sessions Case No. 7  of 1981,  for committing murders of Merli and her two little children. The Sessions Court acquitted them but on an appeal by  the State  the Kerala  High Court set aside their acquittal and  convicted them  under  Section  120-B(1)  and Section  302   read  with  Section  34  IPC.  Accused  No.2, Karthikeyan was  also convicted  under Section 411 IPC. They have, therefore, filed this appeal under Section 2(a) of the Supreme   Court    (Enlargement   of    Criminal   Appellate Jurisdiction) Act, 1970.      Tomy and  his brother  Francis were  doing business  in partnership at  Alwaye. They  first  started  a  piece-goods business under  the name  ‘Rani Silk House’ and then another one named ‘Maharani Textiles’. In 1969, they started a third business initially under the name ‘Rani Umbrella Mart’ which was later  on changed  to ‘Rani  Cut Piece  Centre’. Besides Tomy and  Francis, Merli,  (deceased) and  Josephine (PW-26) were the other partners. After the death of Francis in 1975, Ammini (A-1)  was inducted  as a  partner in  the first  two firms; but,  she was  not allowed  to join the third firm as Francis had  overdrawn his share in the capital of the firm. Ammini was  periodically paid  certain amounts  by Tomy  for maintenance of  herself and  her children,  but she  was not satisfied with  that arrangement  and  often  expressed  her resentment openly.  Ammini was  at times  required to borrow money from  others and  that is how she came in contact with Kartikeyan (A-2),  who was  her neighbour.  Gradually, their acquaintance developed  into illicit intimacy. In June, 1979 she fell ill and during the period of her hospitalisation A- 2 was  often seen with her in the hospital and it was freely talked  by  the  people  that  they  had  developed  illicit intimacy. On one occasion when Tomy had visited the hospital he had  also seen  A-2 with  her. So  he had  questioned A-1 about him  and told  her that  what she  was doing  was  not proper. A-1  suspected that  Tomy’s wife  Merli had informed Tomy about her illicit relationship with A-2. As a result of this incident the animosity of A-1 towards Tomy and his wife

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became more intense and both of them were looked upon by A-1 as hr  enemies. She started believing that Tomy and his wife were the  cause of  all her  ills and that they were also an obstacle in  her affair  with A-2.  Therefore, A-1  and A-2, sometime between  June 1979  and May,  1980, decided to ruin Tomy and  his family.  They first  tried  to  achieve  their object by resorting to black magic. Those attempts, however, remained ineffective.  In May, 1980 A-1 had gone to Maharani Textiles for  getting cloth  for a  safari suit for her son. When the  salesman was bout to cut the costly cloth selected by her,  Tomy told  him not to give it but to give a cheaper variety. As  a result  of this  incident A-1 felt humiliated and returned  without taking  any cloth.  A-1, A-2 and Johny (A-3), whose  mother was the maid servant of A-1 and who was also often  rendering services  to her,  decided to  do away with Tomy  and his family members. First attempt was made on 29.5.1980 when  A-1 and  A-3 had  gone with  an  insecticide ‘Dalf’ of  the house to Tomy but it failed. Thomas (A-4) had also by  that time  come in contact with A-1. He also joined the conspiracy to kill Tomy and the members of his family on being promised a payment of rupees on lakh. Pursuant to that conspiracy A-4  procured insecticides  known as  Parataph  & Eccalex and  the  second  attempt  was  made  on  10.6.1980. administer the mixture of those two insecticides after using Chloroform and  making Merli  and children unconscious. That attempt failed  as Josephine  (PW-26) was  found present  in Merlis house  A-1, A-2 and A-4 then made a final decision to use cyanide which is a more powerful poison. A-4 was able to procure  some   cyanide  from  one  Chinnappan  (PW-27).  As preplanned, on  23.6.1980 at  about 7 P.M. A-1 first went to Tomy’s house and started talking with her. After sometime A- 3 and  A-4 went there with a pretext that they wanted to see A-1. A-4 requested Merli go get some water for him to drink. While she  was bringing  water A-3  and A-4  caught her from behind, applied  pressure on  her neck,  made her  open  her mouth and  then forcibly put cyanide in her mouth. She tried to resist  that attempt  by giving a bite on the hand of A-3 but she  was not  successful. The  poison had its effect and Merli died  immediately. Then,  A-1 with  the  help  of  A-3 forcibly gave  cyanide to  Merli’s two  children. They  also died instantaneously.  Ammini  then  left  the  house  after removing a  gold chain  of Merli  from a cupboard. The other two accused,  namely A-3 and A-4 remained behind waiting for Tomy to  come; but  as he  did not come at the expected time they also  left. When Tomy came and saw what had happened he screamed and  that brought  the neighbours  there. Soon  the Police was informed about the incident. All the accused were then charge-sheeted  and tried  for the  offences punishable under Section  120-B and Section 201, 302, 452 all read with Sections 34,  109 and 11 IPC. A-2 was separately charged for the offence punishable under Section 411 IPC.      There being  no eye witness the prosecution relied upon the following circumstances to prove its case:-      (1) A-1  had sufficient  motive to exterminate Tomy and      his family.      (2) A-1  along with  A-2, who  was the neighbour of A-1      and with whom she had developed illicit intimacy, first      tried to  ruin the  family of  Tomy  with  the  aid  of      persons practising black magic and witch-craft.      (3) First  attempt by  A-1, A-2  and A-3  to administer      insecticide to merli and her children on 29.5.1980.      (4) Second  attempt by A-1, A-2 and A-3 to administer a      stronger insecticide  to  Merli  and  her  children  on      10.6.1980.      (5) A-4  jointed the  conspiracy and  procured  cyanide

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    from a goldsmith through PW-27.      (6) Testing of effectiveness of that cyanide by A-1 and      A-3 on  a cat,  which died and whose body was buried by      A-3 in the compound of A-1.      (7) A-1 seen going to the house of Tomy on 23.6.1980 at      about 6.30  P.M. and  falsely telling persons, whom she      met on  the way,  that  she  was  going  to  Tharakan’s      Hospital.      (8) A-3  and A-4 were also seen following A-1 and going      towards the house of Tomy.      (9) A-1  was seen coming out of the house at about 7.30      P.M.      (10) A-3  and A-4  were seen together near the place of      occurrence at about 8.30 P.M. and thereafter at another      place not  far away.  A-2 was also seen near that place      at about 9.00 P.M.      (11)  A-3  and  A-4’s  disclosure  to  the  doctor  who      examined them  as to  how they had received injuries on      their hands.      (12) Discovery  by A-2 of a gold chain belonging to the      deceased.      (13) Recovery  of empty bottles of parataph and eccalex      on the information given by A-3.      (14) Discovery  by A-2  of  a  mixture  of  insecticide      purchased earlier for killing the deceased.      (15) Discovery by A-4 of a bottle containing cyanide.      Besides the  above circumstances  the prosecution  also relied upon  the confession  made by A-4 before the judicial Magistrate and  the medical  evidence, which proved that the deaths were the result of poisoning by cyanide.      The Trial  Court held  that Merli  and her children had died as  a result of cyanide poisoning sometime between 7.30 p.m. and  9 p.m.  on 23.6.1980. It ruled out the possibility of Merli  and her  sons’ having  committed suicide by taking poison. But  it did  not believe  the  prosecution  evidence regarding involvement of the accused and also the confession made by  A-4. It,  therefore, acquitted  the accused. We are not stating  here the  reasons given  by the trial court for disbelieving  the   prosecution  evidence   as  we  will  be referring to them a little later.      The State  challenged the  acquittal  before  the  High Court. The  High Court  found that most of the reasons given by the  trial court  for rejecting  the prosecution evidence were grossly  unreasonable and  some  of  them  were  almost perverse. After  re-appreciating the  evidence it  came to a different conclusion as regards the guilt of the accused.      The High Court accepted the evidence of Tomy (PW-2) and his elder  brother Paul  (PW-15) and  held that  A-1 was  on inimical   terms with  Tomy and  his wife  and that  she had sufficient motive to finish Tomy and his family members. The trial Court had also accepted that evidence and held that A- 1 had  strong ill-feeling  against PW-2 and his wife, Merli. The High  Court also  agreed with  t he finding of the trial Court that  Merli and  her children  had died as a result of cyanide poisoning  sometime between  7.30 p.m. and 9.00 p.m. on 23.6.1980  and that  it was  not a  case of  suicide  but cyanide was  administered to them by an external agency. The High Court  also confirmed the finding recorded by the trial Court relying  upon the evidence of PWs 41, 43, 44 and M.Os. 27. 28,  40 and  41, that  A-1 and A-2 had resorted to black magic and  witch craft  for ruining Tomy and his family. The High Court  believing the  evidence of PWs 2, 15, 17, 40 and 41 confirmed  the finding  that Ellyamma,  mother of A-3 was employed by  A-1 as  a maid-servant  and that  A-3 was  also occasionally rendering services to her.

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    The High  Court believed  the evidence of PWs 15 and 16 from whose  shops A-3  had purchased  insecticide ‘Dalft’ on 16.5.1980 as  they were  found to  be independent  witnesses because they  had no  reason either  to oblige  Tomy or  the prosecution or  to depose  falsely against  A-3.  The  trial Court had  rejected their evidence. PW-15 was disbelieved on the ground that he had not issued a bill and the explanation given by him that he allowed A-3 to go away without taking a bill as  he was acquainted with him, was not believable. The trial Court  rejected the  evidence of  PW-16 on  the ground that the  copy of  the bill produced by him appears to  have been prepared  subsequently. Moreover,  ‘Dalf’  was  neither used by  nor recovered  from any  of the accused. It as been submitted by the learned counsel for the appellants that the reasons given  by the trial court for rejecting the evidence of these witnesss were quite proper and, therefore, the High Court should  not have  reverse the findings. In our opinion the reasons given by the trial court were not at all proper. The evidence  of PW-15  could not have been discarded merely because the   name  of A-3 was not mentioned in the bill and that PW-95,  the Investigating Officer, had not made further enquiries with  respect to  that bill.  What the trial court failed to  appreciate was  that there  was no requirement of mentioning name  of the  purchaser of the insecticide ‘dalf’ and that  there was  no reason for the Investigating Officer to make further enquiries with respect to the said bill. The trial court had held that the bill prepared by PW-16 appears to have  been prepared subsequently because in the 2 earlier bills the  date mentioned  was 17.5.1980.  The  trial  court failed to appreciate that this witness was approached by the police on  4.7.1980 for  his statement. The bill was already in existence  then.  It  was,  nobody’s  case  that  it  was prepared on  or after 4.7.1980. As regards the first attempt made  on  the  evening  of  29.5.1980  by  him  and  A-1  to administer that  insecticide to  Merli and her children, the prosecution had examined PW-38 who was an employee in one of the shops to Tomy and was sent by Tomy to his house for some work. He  deposed that  when he  reached there at about 7.15 p.m. he  saw one  slim lady  and one  black  that  fat  chap sitting in the house. He was told by Merli that the lady was her sister-in- law and the other person was Johny (A-3). The evidence of  this witness  was not  believed by the trial on the ground that he did not identify A-1 and A-3 in the court as the  persons who were seen by him sitting in Tomy’s house though he  had identified  them at  the test  identification parade held  for that  purpose. The  High Court accepted the evidence  of  PW-38  as  there  was  nothing  in  his  cross examination which  could have  created any  doubt  regarding truthfulness of  his version.  Merely  because  he  did  not specifically identify  A-3 in  the court  his evidence could not have  been rejected.  It was  not that  he was  asked it identify A-3  in the  court and  he failed  to identify him. Moreover, even  the defence  had proceeded on the basis that A-3 was  identified in  the court as pointed out by the High Court. Nothing  substantial could  be urged  by the  learned counsel for the appellant to disbelieve the evidence of this witness.      The trial  reluctantly accepted  the evidence of PWs 20 and 21, as they were independent witnesses and nothing could be alleged  against them by the defence. It, therefore, held that their  evidence established  that A-4 had purchased one bottle of  parataph and  one bottle  of eccalex  on 7.6.1980 from the  shop  of  PW-20.  It,  however,  held  that  "this circumstance   did    not   constitute    an   incriminating circumstance because  as deposed  by these witnesses, he had

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come to  their  shop  earlier  and  purchased  insecticides. Another reason given by the trial court for taking that view was that  there is no evidence adduced to show that parataph and eccalex  purchased by  A-4 were used by him or any other accused for  commission of  this offence".  The  High  Court disagreed with  this view  and observed that the trial court had failed  to appreciate  that this circumstance was relied upon as  a lin  in the  chain and  to prove the preparations that were  jointly made  by the accused. In our opinion, the High Court  rightly held that its importance and effect were required to  be considered  along with  other circumstances, including the false denial by A-4.      As regards  the incident  of 10.6.1980  the prosecution had relied  upon the  evidence of Josephine PW-26, sister of Tomy. According to her she had come to Alwaye from Madras on 10.6.1980 as  she had some work. In the evening when she and Merli were at home, A-1 had come there. Seeing her there A-1 was surprised.  Soon after entering the house she had made a telephone call to someone. She left the house after about 15 minutes. When  she and Merli had stepped out of the house to see off  A-1 she  had seen  two person near the gate. One of them uttered the name of Merli as if he was an acquaintance. Merli had   then  informed her  that he was Johny (A-3). the trial court  did not  believe PW-26  for the reason that her version was  artificial and  that had  not identified A-3 in the court as the person whom she had seen on that day though she had  identified him  at the  identification parade.  The trial  court   did  not   attach  any   importance  to   the identification of  A-3 at  the test identification parade as it found  that it  was  not  satisfactorily  held  and  also because by  that time  photographs of  all the  accused were published in newspapers. To prove this incident of 10.6.1980 and involvement  of A-3  and A-4  the prosecution  had  also relied upon  the recovery  of MOs, 31, 32 and 44. MOs 31 and 32, being bottles of parataph and eccalex, were recovered at the instance  of A-3  from the  courtyard of house of A-3 on 3.7.1980. the  trial court  did not attach any importance to it on  the ground that it was not established that they were the same  bottles as  were purchased by A-4 from the shop of PW-20 on 7.6.1980. MO 44 was recovered at the instance of A- 2. It  was whisky  bottle  and  it  contained    mixture  of Parataph and  eccalex as stated in the certificate issued by the Joint  Director of  the Forensic Science Laboratory. The trial  court  rejected  this  evidence  as  the  bottle  was recovered from an open space accessible to all and that even though only  100 Ml. Of parataph and 100 ml. Of eccalex were purchased, the  mixture that  was recovered  from the bottle was 220  mls. The trial court also held that the prosecution had failed  to establish  that  the  said  bottle  contained mixture of   parataph  and eccalex  as the  certificate  was signed by the Joint Director of Forensic Science Laboratory, and  not   by  the  Director  and,  therefore,  it  was  not admissible under Section 293(4) of the Cr.P.C.      The High Court after referring to the cross-examination of PWs 26 and 38 held that even the defence had proceeded on the basis  that the accused were correctly identified in the court also,  and, therefore, the sessions court was wrong in discarding their evidence. As regards the recovery of MOs 31 and 32,  the  High  Court  held  that  PW-20  had  correctly identified those  bottles by  the caps of those bottles. The High Court further held that though MO 44 was recovered from an open space, i.e., from the gutter nearby the office of A- 2, but  as it  was  proved  that  it  contained  mixture  of parataph and  eccalex, this recovery evidence deserved to be believed. The  sessions court  was of  the view  that  these

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circumstances  even   if  believed  were  not  incriminating circumstances.   The High  Court was  of the view that these circumstances, namely, purchasing of parataph and eccalex by A-3, recovery  of empty  bottles from  the courtyard  of the house of  A-1 at  the instance  of A-4 and recovery of MO 44 containing mixture  of parataph  and eccalex at the instance of A-2,  did indicate  a joint  attempt by the four accused. The learned  counsel for  the appellants could not seriously challenge   of Josephine  (PW-26)  but  submitted  that  the evidence regarding recovery of MOs, 31, 32 and 44 should not have been accepted by the High Court. It is true that MOs 31 and 32  did not have any label on them but PW-20 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 A-3  from the court-yard of the house of A-1  were   the  bottles  of  parataph  and  eccalex.  A-3’s knowledge about  the concealment  of those  bottles was  not 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 A-2, 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 A-2. The statement made  by A-2  before recovering   the  bottle thus stood corroborated.  The  trial  court  was  also  wrong  in holding with  respect to  the  contents  of  MO-44  was  not admissible in  evidence  as  it  was  signed  by  its  Joint Director and  not by  the Director.  On true construction of Section 293  (4) Cr.P.C.  it  has  to  be  held  that  Joint Director is  comprehended by  the expression ‘Director’. The amendment made in clause (e) of Section 293(4) now indicates that clearly.  If the  Joint Director  was not  comprehended within the  expression Director  then the  Legislature would have certainly  named him  while  amending  the  clause  and providing that Section 293 applied to the Deputy Director or Assistant Director  of a Central Forensic Science Laboratory or a  State Forensic Science Laboratory. A Joint Director is a higher  officer than  a Deputy  Director or  an  Assistant Director and,  therefore, it  would be  unreasonable to hold that a  report signed by Joint Director is not admissible in evidence though  a  report  signed  by  Deputy  Director  or Assistant Director  is now  admissible. In  our opinion  the High Court  was right in holding that the report made by the Joint Director  was  admissible  in  evidence  and  that  it deserved to be relied upon.      To prove  that A-4  had procured  potassium cyanide the prosecution had  examined Chinnappan  (PW-27). This  witness has stated  that about  a couple of weeks prior to the death of Merli and her children, while he was waling along with A- 4 on  a road,  A-4 had  told him that he was in need of some effective poison  to kill  stray dogs  which were destroying his poultry. He was first hesitant to give potassium cyanide to A-4  but on  further persuasion  he gave a small quantity of it  in a  bottle  of  Vicks.  The  prosecution  had  also examined PW-23,  who was   working  with PW-27  in the  same jewellery shop  to establish  that about  4 or 5 days before the death of Merli and her children he had seen PW-27 and A- 4 together  discussing something  secretly. The  prosecution had also  examined PW-24  to prove  that A-4 was seen in the house of  PW-27 a  few days  before the  death of Merli. The evidence of  PW-27 was  disbelieved by the sessions court on the   ground that  he did  not have  a  licence  to  possess

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cyanide and  the Investigating  Officer  had  not  made  any attempt to  find out  the source.  The High  Court held that these reasons  were not at all sufficient for discarding his evidence. PW-27 was working in a jewellery shop and the shop owner did  have  a  licence  to  posses  potassium  cyanide. Moreover, PW-27  had stated that he had obtained it from one Narayanan, another  goldsmith and  the Investigating  Office could not  question him as he had died before  he could have been questioned  by  the  Investigating  Officer.  One  more reason was  given by  the trial  court for  disbelieving the evidence of  PW-27 was that he had not disclosed the fact of giving potassium  cyanide to  A-4 to  any other  person. The High Court  observed that  this was not at all a good ground for rejecting  his evidence. In our opinion, the  High Court was right in observing that this important piece of evidence was very  lightly brushed aside by the trial court on flimsy ground. The  circumstance under  which  PW-27  had  obtained potassium cyanide and given it to A-4 was such that he would not have  liked to  disclose that fact to anyone. As rightly pointed out  by the  High Court  PW-27 being a goldsmith, it was quite  likely that  he  was  able  to  obtain  potassium cyanide even though he did not have a licence to possess it, as  cyanide   is  commonly   used  used   by  goldsmith  for electroplating gold ornaments.      In order  to prove  that Merli  and her  children  were alive till  7.00 p.m.  the prosecution had examined PW-32, a boy aged  14 years,  who had  gone to Tomy’s house to give a packet of surf at 7.00 p.m. The evidence of this witness was not at  all challenged.  The trial  court did not record any finding with   respect  to  his  evidence.  The  High  Court accepted it and held that till 7.00 p.m. on 23.6.1980, Merli and her children were alive.      The prosecution  had also  led evidence  to  prove  the movements of  A-1, A-3  and A-4  between 6.30  p.m. and 8.00 p.m. on  that day.  Ennamma (PW-3),  who was  residing  just opposite to  A-1’s house,  stated that  she  had  seen  A-1’ coming out  of her  house at  about 6.30 p.m. and proceeding towards the  house of  Tomy. She  further  stated  that  her attention was  drawn towards  A-1 because it was unusual for A-1 to  move out  of her  house at such a late hour. She has also stated that a few minutes later she had seen A-3 and A- 4 coming  out of  the house  A-1 and  going  towards  Tomy’s house. The  trial court  did not  disbelieve the evidence of this witness  but held  that what  she had  stated  did  not amount to  an incriminating  circumstance and  therefore, no weight could be attached to it. Only omission brought out in her cross-examination  was that she had not give the name of A-4 in  her police  statement but  had described  i as "Duck Youngster". The  High Court  held that her evidence deserved to be believed and it did establish that A-1, and A-3 and A- 4 were  see together  near the  house of  A-1 about and hour before the incident. PW-4 had met A-1 sometime thereafter on the road and inquired from her as to where she was going. A- 1 had told her that she was going to Tharakan’s Hospital the prosecution had  examined Rosy  (PW-11), mother of Raju. She categorically stated  that A-1  had not come to see Raju and she had  not noticed  her in  the hospital. Her evidence was discarded by the trial court on the ground that it was quite likely that  she might  not have  remained present near Raju all the  time and therefore, might not have noticed A-1. The prosecution had  also examined PW-47 whose two children were also admitted  in the  hospital.  He  has  stated  that  his relations with A-2 were quite intimate and, therefore if she had come  to the  hospital she  would  not  have  gone  away without meeting  him and  enquiring about  the health of his

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two sons.  He was  present in the hospital from 6.00 p.m. to 9.00  p.m.  on  that  day  and,  therefore,  he  would  have certainly noticed  the presence of A-1. the evidence of this witness was  not disbelieved  by the trial court but it held that it  did not falsify the explanation of A-1 that she had in fact  gone to  the hospital  to see Raju. The  High Court held that this was not a reasonable view and the trial court ought to  have appreciated that the explanation given by A-1 was false  and thus  this wan an incriminatory circumstance. We are  also of the view that the trial court had completely misunderstood the significance of the evidence of PWs-11 and 47. The evidence discloses that Raju was serious. Therefore, his mother was bounded to be by his side. It was, therefore, not likely  that when  A-1 had  gone to see Raju, his mother was not  by his side and, therefore, she had not noticed the presence of  A-1 in  the hospital.  It was  equally unlikely that if  A-1 had really gone to the hospital, she would have returned without  meeting  PW-47  and  inquiring  about  the health of  his two sons. The reason given by the trial court for holding  that the  evidence of  PWs-11 and  47  did  not falsify the   explanation  of A-1  was thus not sustainable. the High  Court was,  therefore, right  in placing  reliance upon the evidence of these two  witness and holding that the explanation given by A-1 was false.      The movements of A-1, A-3 and A-4 between 7.00 p.m. and 7.30 p.m.  were also  noticed by other witnesss. Evidence of some of  them  was  not  disbelieved  by  the  trial  court. Evidence of  others  was  discarded  on  flimsy  grounds  as pointed out  by the High Court. We do not think it necessary to refer to the evidence of all those witnesses and it would be sufficient  to state  that the  said evidence was rightly believed by  the High  Court. We  will  only  refer  to  the evidence of  Joseph (PW-8) who was, at that time, serving as an officer in the Life Insurance Corporation. He has deposed that at  about 7.35  p.m., while he was passing by the house of Tomy,  he had  sen one  woman coming out of his house. He first thought  that she  was Merli and, therefore, looked at her to have a talk with her. He at once noticed that she was not Merli  so without  talking with her he proceeded further after passing by her side. He has further stated that on the next day  he had  visited Tomy’s house to attend the funeral and at that time, inside the room where the dead bodies were laid, he  had seen  in the  woman, whom  he had  seen on the previous night.  He therefore,  enquired from  Paul  Dominic (PW-46) and  PW-27 as  to who  she was and they had told him that she  was Ammini,  widow of Francis. He informed both of them that  he had seen her coming out of Tomy’s house on the previous evening.  This  revelation  by  him  had  raised  a flutter among the mourners and it had finally Tomy. Tomy has stated that  he had  informed his brother Paul (PW-50)  that he had  come to know that A-1 had visited his house at about 7.30 p.m.  on the day of the incident. PW-50 has stated that he had  asked Ammini about her said visit but she had flatly denied it.  The trial court disbelieved the evidence of this independent witness  PW-8. One  reason given  was that while Tomy informed  his brother  Paul that  Lucy, Sheela  and two boys had  see A-1  going and  coming out of his house he had not mentioned the name of PW-8 as one of the persons who had also informed  him about  A-1’s visit.  The High  Court  has strongly  criticised   the  learned   Sessions   Judge   for discarding the evidence of this witness. It pointed out that PW-8 had  not stated  that he had told Tomy that he had seen Ammini waling  near about his house at the time of incident. Therefore, while informing his brother he had only generally stated that  Lucy Sheela  and two  boys had  told him  about

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that. Since  he was  not directly  informed by  PW-8  it  is likely that  he had  either thought it not fit or in view of his mental  condition, had  forgotten to mention the name of PW-8. Another  ground given by the trial court for rejecting his evidence  was that  the woman  seen by  him was  wearing spectacles but  A-1 was  not seen  wearing spectacles during the whole  trial  and  that  no  attempt  was  made  by  the Investigating Officer  to trace  the spectacles  of A-1. The High  Court  held  that  these  reasons  were  perverse.  It observed  that   it  was   absolutely  unnecessary  for  the Investigating  Officer   to  search   for  her   spectacles. Moreover, the  evidence of PW-46, PW-47 and PW-50 the eldest brother-in-law of  A-1 proved  that A-1  was  often  wearing spectacles. The High Court after considering the reasons for rejecting the  evidence of PW-8 by the trial court observed: "Sessions Judge  was groping  for some  reason to reject the valuable testimony  of PW-8, and when he failed to trace out any good reason, he traversed through preposterous ideas for rejecting his testimony". On re-appreciation of his evidence the High  Court found  that it had a ring of truth in it and it established beyond and doubt that A-1 was seen coming out of the house of Tomy at about 7.45 p.m.      We may  also refer  to the  evidence of Aliamma (PW-15) who has  stated that  at about  7.30 p.m.  while she and one Kunjamma were  returning from  the hospital and were passing by the  house to  Tomy they had a cry of a child coming from the house  to Tomy.  As no  further cry was heard and it was drizzling they  did not  stop and  proceeded  further.  This witness was  not at  all cross-examined  by the defence. Her evidence was  not disbelieved  by the  trial  court  but  no importance was  attached  to  it.  The  High  Court  rightly considered this as a relevant circumstance as it proved that at about  7.30 p.m.  something had  happened in the house of Tomy which  had made a child cry loudly. The High Court held that the  evidence of  this witness  together with the other evidence regarding movements of the accused and the evidence of PW-8  established that  A-1 had gone to the House of Tomy some time  after 7.00 p.m., that Merli and her children were killed at  about 7.30  p.m. and  that A-1  was found leaving that house  at about  7.35 p.m.  As regards  the  subsequent movements of  the A-1,  A-3 and  A-4 the prosecution had led the evidence  of PWs-25,  28 29  and 30.  Their evidence was also disbelieved  by the  trial court on flimsy grounds. The High Court  has pointed  out how the said reasons can not be considered as proper and sufficient. In therefore, held that even their evidence deserved to be accepted.      The next  circumstances relied  upon by the prosecution was that  while administering  cyanide to Merli, A-3 and A-4 had received  injuries. A-3  was arrested on 2.7.1980 and he was  taken   to  Dr.   Abraham  (PW-60)   for  his   medical examination. The  doctor had  found three  injuries  on  the fingers of his right hand. When the doctor had asked him how he had  received those  injuries, he  had stated that "these small injuries  were caused  by biting when I closed Merli’s mouth to  silence her  at 7.30  p.m. on Monday before last". This evidence  was disbelieved  by the  trial court  on  the ground that  the certificate  issued by  the doctor  was  on plain piece  of paper  and not  on the printed form, that no serial number  was mentioned  in that  certificate and  that when finger prints of third accused were taken by the police on 3.7.1980 the Investigating Officer had seen only scars of the wound  which indicated  that the  wounds had  healed  up earlier. A-4  was arrested on 5.7.1980 and when he was taken to Dr.  Vasant Kumari  (PW-64) for  medical examination. she had noticed  that his  two  injuries  were  in  the  healing

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process. On  being asked about the injuries A-4 had told her that "my  left elbow  and the  outer part of the  right hand were injuries while taking Merli to the Kitchen, holding her from behind  with left  hand, inside  Merli’s house at about 7.30 p.m.  on Monday,  26.3.1980". The  trial court rejected her evidence  on the  ground that  the certificate issued by her was  also on  a plain  piece of paper and an endorsement made therein was in different ink. The High Court considered both the  grounds as  improper and insufficient. It observed that it  was well known then that printed form were in short supply in Government hospitals in the district of Ernakulam. The certificates  were  issued  by  the  doctors,  who  were attached to  Government hospitals at Alwaye and Perumbavoor, bot  of   which  were  situated  in  the  same  district  of Ernakulam. The  High Court  further  found  that  there  was nothing to  show that  the doctors had any reason to prepare false certificates. The High Court, therefore, held that the evidence of  the doctors and the certificates issued by them were true.  The High  Court also  held that what A-3 and A-4 told the doctors amounted to an admission. In fact the trial court had  also held that they being admissions were not hit by any provision of the Evidence Act.      Next important  circumstance disbelieved  by the  trial court was the find of finger prints of A-3 on one of the two glasses (MOs  1 and 2) seized from Tomy’s house on 24.6.1980 under Mahazer  (Ex.57). Finger  prints found  on those   two glasses were compared with the admitted finger prints of A-3 and it  was found  that the finger prints found on one glass tallied with  the finger  prints of  A-3.  The  trial  court disbelieved this  important evidence  on the ground that the earlier photographs  of those  impressions were  not   clear enough  to  enable  the  expert  to  come  to  any  definite conclusion and,  therefore,  it  was  doubtful  whether  the subsequent photographs  were of  the original finger prints. The  trial  court  took  his  view  as  it  found  that  the prosecution had not explained how on the subsequent occasion it was  possible for  the photographer  to  redevelop  those impressions in  a better manner and have better photographs. The trial  court was  also of  the view that even though the photographs were taken on the second occasion in presence of the Judicial  Magistrate, not  much value  could be given to them as  the glasses  had remained  in the  custody  of  the Investigating  Officer   and,   therefore,   there   was   a possibility of  introducing fresh  finger prints  of A-3  on those  glasses.   The  trial   court  also   doubted   their genuineness on  the ground  that when photographs were taken the Judicial  Magistrate had  not taken  care to see whether the camera  had  any  lens.  The  High  Court  has  severely criticised the trial court for taking such a view and in our opinion rightly.  It was  not even  suggested by the defence that  A-3’s   finger  prints   were  again   taken  by   the Investigating Officer  on those  glasses. The finding of the trial  court  was,  therefore,  speculative  in  nature.  In absence  of   any   effective   cross-examination   of   the photographer his  evidence that  he was  able to take better photographs on the second occasion not have been disbelieved by the trial court. It was also improper to brush aside this clinching evidence  on the ground that the confession of A-4 does not  mention that  A-3 had  again taken  water from the glass that  was found  in the  kitchen. In  our opinion, the High Court was right in relying upon this evidence regarding which nothing else could be urged. That evidence established the presence of A-3 in Tomy’s House.      To   prove the  complicity of  A-2 the  prosecution had relied upon  the recovery  of gold chain (MO-9) belonging to

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the deceased  and the  bottle (MO-44)  containing mixture of parataph and  eccalex recovered  on the basis of information given by  him. It  has been  held proved that the gold chain belonged to  the deceased.  The trial  court, however,  held that it  was not  proved that  A-2 had concealed the same in the store  room of  Sub-Divisional Office  of the  Telegraph Department, where  he was  working. The  trial court placing reliance upon  the evidence  of the officer watchman (PW-88) and the defence witness DW-3 came to the conclusion that the chain appeared to have been planted there by the police. The trial court also held that the whole story regarding removal of the  chain and  it being  given by  A-1 to  A-2  and  A-2 concealing it  in the store room was "too shedy to be worthy of any judicial credit". The High Court on close scrutiny of their evidence found that the watchman and D-3 being the Co- employees had  fabricated evidence  regarding A-2’s leave to help A-2  and had  falsely deposed  that on  27.6.1980  some policemen accompanied by A-2 had approached the watchman and told him  to open  to store  room and after going inside had left it  after  some  time.  The  High  Court  believed  the prosecution evidence  and  held  that  it  has  successfully established that  the gold chain (MO-8) was concealed by A-2 below a  bundle of  wire in  the store  room  where  he  was working and  that it  was recovered  on  the  basis  of  the statement made  by him  before the  panch witnesses. We have already pointed  out earlier  why the  trial court  had  not believed  the  recovery  of  bottle  containing  mixture  of parataph and  eccalex and  why the  High Court has held that the reasons given by the trial court are improper.      The  confession   made  by   A-4  before  the  Judicial Magistrate was  discarded by  the trial court as it found it to be  not voluntary  and true.  The reasons given by it for taking view  were -  (1)  while A-4 was remanded to judicial custody  by   the  Judicial   Magistrate  on   7.7.1980  the Magistrate had  thought it  fit to  give a direction that he should not  be kept  in the  sub-jail at Alwaye as the three co-accused were  in that sub-jail and this indicated that if he had been allowed to remain the other accused he would not have made  the confession.  (2) The confession was retracted soon after  A-4 was  released on  bail. (3) While retracting the confession and also during his examination under section 313 Cr.P.C.  A-4 had stated that he was made to take an oath to make  a confession  and he was told by the police that if he made a confession he would be protected. (4) The Judicial Magistrate had  not asked  him whether he was pressurised by the  police   to  make  the  confession.  (5)  The  Judicial Magistrate had  started recording  the confession soon after A-4 was  produced before  him on  7.7.1980. (6) The Judicial Magistrate had  not recorded  separate reasons,  apart  from stating so  in the  memorandum, for  believing that  A-4 was making the  confession voluntarily.  (7) The  confession  is very long  and runs  into as  many as  20 pages. (8) A-4 had disowned the  first bail  application which  was made on his behalf after  7th .  According to  the trial court all these circumstances indicated  that A-4  made the confession while he was  in the  state of  fear and  mental collapse and that even after  he had made the confession he was under pressure from the  police while  in custody. The trial court had held the confession  as not true as it found that there were some discrepancies between  the confession  as  recorded  by  the Judicial Magistrate and what was recorded with respect to it by  the   Investigating  Officer  in  his  case  diary.  The following inconsistencies were noted by the trial court:- 1.   In the confession A-4 has stated that the first attempt      was made  on 9.6.1980 where as in the case diary it was

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    mentioned that  the first attempt was made initially on      9th and then on 10th. 2.   No reference  is made  to the  chain of  Merli  in  the      confession Exh. P-40 though that fact is referred to in      the case diary. 3.   The name  of Chinnappan P-27 is not mentioned in Exh.P-      40 but it is mentioned in the case diary. 4.   Though breaking  of a glass in the hand of the Merli is      mentioned in the case diary, it is not so stated in the      confession. According to  the trial court these omissions indicated that A-4 was forced and tutored to make the confession.      The High  Court held that the trial court had looked at the confession with suspicion. The High Court also held that in comparing  the confession  with the  record of  it in the case diary  the trial  court had committed an illegality and the finding  recorded by  it, therefore,  stood vitiated. We are of  the opinion  that the High Court was right in taking this view.  If while  remanding A-4  to judicial custody the Judicial Magistrate thought it fit to keep him away from the police and the co-accused, it is difficult to appreciate how such  a   direction  can   be  regarded  as  a  circumstance indicating that  confession was not voluntary. So also it is difficult to  appreciate how  from the circumstance that the Judicial Magistrate  had started  recording  the  confession within a short time after A-4 was produced before him on 7th an inference  could have  been drawn  that he was not making the  confession   voluntary.  Merely   because   A-4   while retracting his  confession and  during his examination under section 313  Cr.P.C.  had  alleged  that  he  had  made  the confession under  pressure and force from the police, it was not  proper  for  the  trial  court  to  conclude  that  the confession was  not voluntarily  made. 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 A-4 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 question put to  the accused  and the  answers given by him. The High Court has  also pointed  out how  other reason  given by the trial court are also improper. While agreeing with the trial court that  the Judicial  Magistrate had  failed to  inquire from A-4 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 A-4 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 A-4.      The trial  court had  further held  that  even  if  the

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confession was  regarded as  voluntary and  true it could be used only  against A-4  and not  against other  accused. The High Court found the trial court wrong on this point in view of Section  10 of the Evidence Act which provides that where there is  reasonable ground  to believe  that  two  or  more persons have  conspired  together  to  commit  and  offence, anything said, done or written by any one of such persons in reference to  their common  intention, after  the time  when such intention  was first entertained by any one of them, is a relevant  fact as  against each of the persons believed to be so  conspiring, as  well as  for the purpose of providing the existence  of the  conspiracy  as  for  the  purpose  of showing that  any such  person was  a party  to it. The High Court held  as there  was reasonable  ground to believe that Ammini  and   other  accused  had  conspired  together  and, therefore the  confession made  by A-4 could be used against other accused also.      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  by the  High Court  for  ejecting  them.  Other reasons have  been stated  by us earlier while point out how the  view   taken  by   the  trial   court  regarding   each circumstance was  not proper.  The  evidence  regarding  the movements of  A-1, A-3  and A-4 between 6 and 7.00 p.m. near Tomy’s house, the find of finger prints of A-3 on one of the glasses seized  from the house of Tomy and the confession of A-4 together with other circumstances stated above establish the guilt of the accused beyond reasonable doubt.      As we  do not  find any  good reason to differ from the view taken by the High Court, this appeal is dismissed.