The Judgment of the Court was delivered by
Thomas, J.:— One Sukumarakurup was believed to be the victim of a murder and the body was found in flames in a motor car inferno. But later it was revealed that the body was not of Sukumarakurup, but of one Chacko and that Sukumarakurup played the role as kingpin in a diabolic plot to make a facade that he was killed. It was done with the rapacious motive of inveigling a whopping sum covered by an insurance policy subscribed to by himself at Abudabi. This is the nub of the prosecution story.
2. Though the police nabbed all others believed to have been involved in the conspiracy, the one who eluded from the dragnet of the police is Sukumarakurup himself. So the case was charge sheeted without him as the accused. One of the culprits was transposed as an approver and was examined as an eye witness. Sukumarakurup's brother-in-law (wife's sister's husband) and his driver were arrayed as the first and second accused respectively. Sukumaraakurup's wife and her sister were arraigned as third and fourth accused respectively. Learned Sessions Judge convicted the first and second accused of murder, criminal conspiracy and destruction of evidence, but the remaining accused were acquitted. These appeals have been filed by the convicted persons. Synopsis of the prosecution story, having the silhouette of a crime thriller screenplay, is the following: Sukumarakurup belonged to Cheriyanadu (near Chengannur) and was employed in Abudabl where he was living with his wife. A greedy thought burgeoned in his mind for becoming fabulously rich over night. Persuant thereto he took a policy of insurance at Abudabi in a total sum of 301616 Dirhams (roughly thirty lakhs rupees). He decided to mate it appear to all concerned that he got involved in a motor accident and died so that the entire insurance amount can be collected by his wife. This nebulous idea became crystallised into an orchestrated scheme in which his brother-in-law (first accused), his loyal driver (second accused) and an attender in his company at Abudabl (P.W 1) were enlisted as participants. For the successful execution of this scheme a small quantity of ‘either’ was procured from the laboratory of Alleppey Medical College.
3. Sukumarakurup and P.W 1 landed at Trivandrum during the first week of January, 1984. The four conspirators (Sukumarakurup, first and second accused and P.W 1) met at “Smitha Bhavan”, Cheriyanadu (which is the house of Sukumarakurup's wife) and carefully worked out details regarding implementation of the plot. They fixed 21-1-84 as the D-day for the final operation.
4. On 21-1-84 all the four met together at Kalpakavadi (a tourist hotel on the National Highway located about 20 Kms. south of Alleppey town). Sukumarakurup reached there in his Ambassador car (KLY 5959). Others reached there in the car of the first accused (KLQ 7831). They proceeded from there (Sukumarnkurup in one car and others in the other car) southwards on the National Highway hoping to come across somebody having resemblance with Sukumarakurup, But even after covering a distance of about 23 Kms. (upto a place called Oachira) they could not find any such person. While proceeding back as they reached Karuvatta (about 13 Kms. from Oachira) deceased Chacko who was waiting for a vehicle to go home, raised his hand as a signal soliciting for a lift in the car. As the conspirators felt that he had resemblance with Sukumarakurup, they gave him a lift in the car KLY 5959.
5. While the vehicles were on the move, first accused offered a drink to the deceased but he declined. First accused persisted in persuading him and after mixing brandy with other in one glass he caused the victim to drink it. Within a few moments first accused put a towel around his neck aid began to strangulate him and then be slouched his head.
6. The vehicles then proceeded to Smitha Bhavan. The victim's body was carried to one of the rooms and his clothes were changed, the shirt and Lunki of Sukumarakurup were put on it. They then carried the body in the dicky of KLY 5959 and proceeded towards north in the two cars. As they reached a place called Kollakadavu they stopped and took out the body and placed it on the driver's seat KLQ 7831. Then they pushed that car down to the adjoining paddy field, petrol was sprinkled inside aid outside the car and the vehicle was set ablaze. But in that operation first and second accused also sustained some burns. However, they all hurried away from the scene in the other car (KLY 5959) without waiting to remove the gloves which fell on the ground as they all had fogged out by that time. It was about 3 a.m then.
7. Some people of the locality saw an automobile inferno during the early hours and they rushed to the scene. As they saw a glove lying near the car they suspected this as a case of murder. So one among them went to Mavelikkara Police Station and gave Ext. P16 First Information Statement
8. It was with the arrest of first accused on 24-1-84 and P.W 1 on 31-1-84 that the case got transmogrified into the present shape. P.W 1 was then shown as third accused in the police records. But on 4-4-89 he was tendered with a pardon and was made an approver. In spite of spreading their dragnet far and wide the police failed to catch Sukumarakurup and hence the case was charge sheeted only against the four accused mentioned above.
9. After a protracted trial learned Sessions Judge, relying on the evidence of P.W 1 as corroborated in material particulars, found first and second accused guilty of the offences. Accordingly, they were convicted and sentenced to various terms of imprisonment including imprisonment for life under Sec. 302 of the Indian Penal Code. The two lady accused were, however, acquitted.
10. P.W 1 has stood by the prosecution version. We do not think it necessary to reproduce his narration in this judgment as the same is in complete accord with the prosecution story detailed above. If the evidence of P.W 1 can be accepted as reliable, the two appellants cannot escape from conviction.
11. P.W 1, being an approver is an accomplice. The evidence of an accomplice has the ostensible blemish of a betrayer. However, legal position is now well settled that even accomplice evidence can be acted on if it sppears to be true and if it is corroborated in material particulars. Courts, as a rule of caution, insist on corroboration of the accomplice evidence in material respects. Hidayatulla, J. (as he then was) sounded the note of caution in Haroom Haji v. State of Maharashtra (AIR 1968 S.C 832) thus: “This rule of caution or prudence has became so ingrained in the consideration of accomplice evidence as to almost the standing of a rule of law”. A Constitution Bench of the Supreme Court has laid down in State v. Basawan Singh (AIR 1958 S.C 500) that even in respect of an accomplice, all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. “Corroboration need not be by direct evidence that the accused committed the crime, it is sufficient even though it is merely circumstantial evidence………”. The same principle has been reiterated by the Supreme Court in Jadav v. State (AIR 1966 S.C 821). A Division Bench of this Court, after referring to the legal position discussed in the above decisions, has restated it in Sukumara Panicker v. State of Kerala (1991 (2) K.L.T 119).
12. Shri K.C Peter, learned additional Public prosecutor (who is also the additional Director General of Prosecutions) pointed out many circumstances as corroborating the evidence of P.W 1. First among them was the testimony of P.W 15 who was a junior laboratory assistant in the Anatomy Department of Medical College, Alleppey (his wife is the cousin of Sukumarakurup). P.W 15 has stated in his evidence that he knew first accused through Sukumarakurup. In August, 1983 Sukumarakurup and first accused together obtained some ‘other’ from this witness which he collected from the college laboratory. This evidence has to be taken along with Ext. P77 chemical examination certificate. (Viscera of the dead body was subjected to chemical analysis). The certificate shows that ethyl alcohol and traces of other were detected in the stomach, liver, kidney and blood of the dead body. This has to he taken along with the evidence of the Dy. S.P (P.W 77) who said that an empty brandy bottle (labelled as Doctor's Tripple Crown Brandy 680 ml.) was recovered from below a culvert on the strength of a statement elicited from second accused. Ext. P34 is the mahazar prepared by P.W 77 for the said recovery. This licks with the testimony of P.W 20, a salesman in wine shop, to the effect that first accused had bought a bottle of brandy on the previous day of the car burning incident. The said items of evidence would cumulatively provide much assurance about the truth of the testimony of P.W 1
13. Next circumstance to be countenanced is that when Dr. Umadethan, professor in Forensic Medicine, Medical College, Alleppey (P.W 76) had examined first accused on 22-1-84 and noticed first degree burns on his face, right fore arm, fingers, right thigh and leg (details of the burns were noted in Ext. P78 certificate issued by the doctor). The same doctor examined second accused on 13-2-84 and noted extensive darkish discoloration of the skin on the forehead and also on both fore arms which the doctor opined as results of burn injuries. (The details are noted in Ext. P80 certificate issued by him). This circumstance is certainly corroborating the testimony of P.W 1 that when the car with She dead body was set ablaze the fire flamed upto first and second accused and caused burns to them.
14. P.W 23 is a petrol dealer. He said that on, 21-1-84 he sold 10 litres of petrol to the person who came in KLY 5959. He said this with the help of Ext. P14(a) which is carbon copy of his bill book. We must bear in mind that KLY 5959 is a diesel vehicle. (Vide evidence of P.W 21). The petrol would have been collected in cans. P.W 18 is the dealer in a medical shop who said that he sold two gloves to one Bhaskara Pillai (first accused's name is Bhaskara Pillai) on 20-1-84. This he said with the help of Ext. P11(a) carbon copy of the bill. His salesman (P.W 19) identified first accused as Bhaskara Pillai referred to in Ext. P11(a). We have no reason to discard the evidence of these two witnesses. It has a significant corroborative effect on the testimony of P.W 1 as he spoke about the use of the petrol in cans and use of gloves. One of the gloves was recovered from the site near the burned car. Pieces of one glove were recovered by P.W 77 Dy. S.P on the strength of a statement elicited from second accused. (Ext. P35 is the mahazar drawn up then).
15. There are yet other items of evidence to corroborate the version narrated by P.W 1. But we do not thick it necessary to discuss all of them as the evidence already referred to above is sufficient to conclude that P.W 1's evidence has been corroborated in material particulars.
16. Shri M.N Sukumaran Nayar, senior counsel who argued for the appellants, adopted yet another approach. According to him, prosecution did not succeed in showing that the dead body was not that of Sukumarakurup. Alternatively he contended that prosecution has failed to prove that the body was that of Chacko the film representative. Since these two alternative contentions are intertwined with each other, we shall consider them together. None, the less, if prosecution has failed to prove the first limb the corollary is that we must enter, a verdict of not guilty in favour of the appellant.
17. If there is evidence to prove that Sukumarakurup was alive on the forenoon of 22-1-84, it would clinch the issue. Prosecution seeks to establish this aspect with the help of two items of evidence. First is that the Manager and the Room boy of Alankar Tourist Home, Alwaye (P.Ws 38 and 39 respectively) have said that at about 8.30 a.m on 22-1-84 a man whose photo was seen in M.O 2 series had taken a room in their lodge in the name of “Venugopal, Retnalayam, Alleppey”. P.W 38 is more definite that it was the same person as figured in the photograph because he had noticed that person when he came in car KLY 5959 and he remained in the tourist home till the forenoon of 23-1-84. They have yet another reason to remember his face. This murder case created a big sensation in Kerala and photos of Sukumarakurup were published in all the newspapers two or three days after the murder. P.Ws 38 and 39 on seeing the photos of Sukumarakurup, were sure that the person who stayed in their lodge was himself. Mere possibility of making a mistake in the identification is not enough to discard the evidence of those two witnesses.
18. The other evidence is that second accused had told P.W 36 later that Sukumarakurup was still alive. It was first contended that the above statement is inadmissible in evidence as it is only hearsy. It is a statement made by one of the accused. Of course, it is neither an admission nor a confession. Sec. 14 of the Evidence Act makes facts, showing the existence of a state of mind such as knowledge relevant when the existence of any such state of mind is relevant. Explanation-I under the said section says that a fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists in reference to the particular matter in question. Shorn of expatiation of the point the position can be understood with the help of Illustration (P.) to the provision which reads thus: “A is tried for a crime. The fact that he said something indicating an intention to commit that particular crime is relevant”. The said statement made by the second accused indicating his knowledge that it was not Sukumarakurup who was in flames in the car is undoubtedly relevant. If so, it is admissible in evidence. Next is the question whether reliance can be placed on the evidence of P.W 36. He narrated the context in which second accused said this fact to him. P.W 36 was a close neighbour of Sukumarakurup. When there was a stir in the locality after the dead body was buried, P.W 36 gave asylum to second accused. During such stay second accused had once divulged the above information. We do not find anything to disbelieve it.
19. From the above evidence we reach the conclusion that Sukumarakurup was alive in flesh and blood, hale and hearty at least on 23-1-84. Its corollary is chat the dead body involved in Ext. P17 inquest was not that of Sukumarakurup.
20. Now we proceed to consider the alternative limb of the contention that prosecution has not substantiated that the dead body was that of Chacko, the film representative. Following facts have emerged in evidence which could be of use to establish that point; (1) P.W 1 identified M.O 9 photo as the photo of the person killed by them. (2) Photographic superimposition method, applied by Dr. Umadethan with the photo of the skull of the dead body and the photo of Chacko, showed a number of tallying points from which the doctor gave his opinion that the skull could. have been that of Chacko. (3) Some strands of hairs collected from the bathroom in Smitha Bhavan were compared with the pubic hairs collected from the dead body and also with the strands of hairs picked out from a comb supplied by the widow of Chacko (P.W 52) Many common characteristics were observed as between them. (4) The gold rig (M.O 11) which P.W 1 had removed from the dead body was identified as that of Chacko. (5) A remanant of the shuddy worn by the dead body was also identified by Chacko's widow (P.W 52).
21. Apart from the first item referred to above, all the others, even if they are relied on, cannot conclusively establish that the dead body was that of Chacko. that apart, the photographic supermposition process adopted in this case had two irremediable drawbacks. First was that the skull cap was missing and second was that a portion of the mandible was destroyed in fire. Thus, there could not have been the pate of the individual and consequently no completed superimposition was possible with the phptographs concerned. Again, in regard to the hair comparison, we have difficulty to use the opinion as of any help since identical features were noticed even on the pubic hairs of the deceased.
22. However, utility of M.O 11 gold ring has a different impact. P.W 52 (widow of Chacko) has identified it as the right of her husband. Though this can be believed, it is not conclusive evidence to prove that it was the right worn by Chacko, since identical gold rings could have been possessed by someone else also. Nonetheless the said fact relating to M.O 11 ran be used as an item of corroborative evidence.
23. P.W 1 identified the person in M.O 9 photo as the person who was killed. There is no doubt that M.O 9 is the photograph of Chacko, the film representative. It was contended that since P.W 1 himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person it would be possible to identify him later. We bear in mind the fact that P.W 1 and the others in the car were on the prowl to find out a person who had resemblance with Sukumarakurup. In spite of covering a distance of 23 Kms. they failed to come across such a person and when they saw the deceased they all felt, in one accord, that he was the required person. That apart, we do not think that P.W 1 would not have observed the face of the deceased while he was inside the car. The time available to them was more than sufficient to form the impression about his face in the mind of the observers.
24. In the above context, we refer to the evidence of P.W 27 who has a tea shop opposite to Hari Theatre, Karuvatta. (Deceased had boarded the car at this spot). P.W 27 said that at about 10.30 p.m on 21-1-84 he saw Chacko (whom he was very familiar with) getting into a car and thereafter he could never see Chacko. Though this witness did not notice the number of the car he could point out one special feature of the car that it had a flash light on the rear side. (Prosecution has proved through P.W 14 that he had fitted a flash light on the rear side of the car - KLY 5959). We unhesitatingly conclude from these circumstances that in all probabilities the car in which Chacko had boarded at Karuvatta (as seen by P.W 27) was the car in which the accused were then travelling.
25. So the evidence of P.W 1 that the person killed was the man in M.O 9 photo coupled with evidence of P.W 27 that Chacko got into the car when read along with the evidence relating to M.O 11 gold ring would safely lead us to the conclusion that the dead body in the car was that of Chacko, the film representative.
26. Over and above those items of evidence to substantiate the identity of the person killed, there is another piece of evidence worth considering. P.W 1 has deposed that when the deceased got into their car he had told theta of his identity as Chacko, a film representative hailing from Alleppey. Those particulars were disclosed by the deceased when P.W 1 asked him about it.
27. Shri M.N Sukumaran Nayar contended that since the said statement of the deceased would not fall within the ambit of Sec. 32 of the Evidence Act it is inadmissible in evidence. Shri K.C Peter argued that since the said statement is relevant under Sec. 6 of the Evidence Act it is admissible. Section 6 reads thus:
“Facts which though not in issue, as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.”
Illustration (a) to the said section is important in this context and is extracted below:
“A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by standers at the beating or so shortly before or after it as to form part of the transaction, is relevant fact.”
28. The word “transaction” in the section in its largest sense can be termed as the group of facts so connected together as to be referred to the crime itself. Whether a series, of acts are so connected together as to form the same transaction is a question of fact. Proximity of time, continuity of action and unity of purpose or design are factors governing the same question of fact.
29. A similar expression “to form the same transaction” was used in sec. 235(1) of the code of Criminal Procedure, 1898 (corresponding to Sec. 220(1) of the present code. S.R Das, J. (as he then was) speaking for a Division Bench of the Calcutta High Court has interpreted the said expression in Becharam Mukherji v. Emperor (AIR 31 1944 Calcutta 224) as purely a question of fact “depending on proximity of time and place, continuity of action and unity of purpose and design”. Almost an identical expression can be traced in Sec. 223(a) of the present Code (which corresponded to Sec. 239 of the old Code) Jafar Imam, J. (as he then was) speaking for a Division Bench of the Patna High Court has interpreted it in Hirday Singh v. Emperor (AIR (33) 1946 Patna 40) as this: “It is not the distance nor the proximity of time which is so essential in order to consider what is ‘the same transaction’ as the continuity of action and purpose”. Their Lordships were considering the facts of a dacoity in which transaction took place even while carrying off the booty and that was also held to be part of the same transaction. We do not thinks that the said wider interpretation should not be imported to the expression “part of the same transaction” in Sec. 6 of the Evidence Act as well.
30. Statement made by the deceased to the culprits while he was taken inside the car disclosing his identity is a fact so connected with the fact in issue as to form part of the same transaction in that larger perspective. So we hold that there is evidence to show that deceased himself divulged his identity as Chacko, the film representative from Alleppey. There is so reason to think that the deceased would have given a wrong identity as he had no cause for impersonating to be someone clse.
31. Learned Public Prosecutor raised an alternative contention that on the peculiar syndrome unravelled in this case it is immaterial even if prosecution could not adduce sufficient legal evidence to establish that the deceased was Chacko, but it is enough that the deceased was not Sukumarakurup. It is not an invariable rule that in all murder cases prosecution must establish the identity of the deceased. The rule that identity of the corpus delicti must be established can have just exceptions. In the Penal Code the expression used is “whoever causes death by doing an act” in the case of culpable homicide. For murder the same ingredient is a basic necessity. Sec. 46 of the Penal Code says that the word “death denotes the death of a human being”. For the offences relating to culpable homicide, whether amounting to murder or not, death of a human being is necessary but the Penal Code does not require that such death must have been in respect of an identified human being. If there is unimpeachable evidence in a given case that ‘A’ has murdered a human being, but identity of that human being could not been established, ‘A’ would still be liable to conviction of the offence. In this context reference can be made to the observation of the Supreme Court in a recent decision reported in Sevaka Perumal v. State of Tamil Nadu ((1991) 3 SCC 471). “In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of a deceased must be established like any other fact. Corpus delict in some cases may not be possible to be traced or recovered.” We are, therefore, in agreement with the alternative contention adopted by the additional Public Prosecutor.
32. For all the above reasons, we confirm the conviction and sentence and dismiss the appeals.
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