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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.