Sukumara Panicker v. State of Kerala

THOMAS, J.

A pretty damsel was snared into a trap by her employer and two other men and killed her by filling her mouth with lethal poison. Her corpse was disposed of in a far away jungle as denouement of the plot. This is the hub of the prosecution story. Among the three conspirators, two became accused and the third was transposed as approver on being tendered with a pardon. Sessions Court convicted the two accused arraigned before it. They have filed these two appeals separately.

2. The story narrated by the prosecution is punctuated with love, sex, adultery, deception etc. Appellant - Sathyaseelan (A1) was proprietor of a weaving mill in which men and women were employed. Geethakumari was one of the employees in the mill. A1's wife was not a healthy woman and the spouses had no issues. A1 utilised opportunities to flirt with Geethakumari and eventually cultivated illicit sexual relationship with her by impressing upon her that he would marry her. The wife of the appellant had a penumbra of suspicion regarding this affair. She reacted violently at it. On a particular occasion she even slapped on the cheek of Geethakumari. But such adversities did not deter Geethakumari from continuing her intimacy with A1. She applied pressure on him to have a ceremony of marriage with her at least by executing a registered document. For some more time A1 succeeded in his procrastinate tactics. However, at one stage Geethakumari gave an ultimatum that unless he would marry her she would undertake a fast in front of his house. As he found that he could no longer run with the hare and hunt with the hound, the idea of liquidation of Geethakumari stemmed in his mind. Himself along with A2 (his brother-in-law) and his friend (P.W. 7) met in secrecy and chalked out a scheme to finish her off.

3. In implementation of the scheme A1 decoyed Geethakumari to a vacant building owned by him. It was in the morning on 25-5-1984. Without sensing any danger, but redolent with hope that she would soon become the bride of A1 at least through a registered document, she went to the vacant building in nuptial costumes. But A1, after seeing her, could not resist his thirst and allured her to have a liaison with her in the next room. A2 wanted to take advantage of the situation and hence he also insisted for a go with her. She raised protestation against it, but A1 cautioned her that A2 could ruin the matrimonial prospects unless he too was satiated. Against all her importunities she was finally prevailed upon to yield to him also. Out of fatigue, she asked for a glass of water A1 gave her tea which was already prepared mixing with poisonous insecticide called "ekalax". But she spat out the first dose as she felt some mal taste. A1 and A2 could not wait further to reach the acme of their scheme. So, A1 forcibly opened her mouth and emptied the bottle of poison into the mouth. Both A1 and A2 then gagged her mouth. She struggled to spit it out, but the pressure was so irresistible that the liquid percolated into her system. In no time she slumped down, showed some fits and slouched her head.

4. The three conspirators locked up the room in which the dead body lay. A1 removed her gold chain from the neck of the dead body (the locket in the chain contained a small photo of the deceased). A taxi car was arranged through P.W. 7 and the dead body was stuffed into the dicky. They proceeded to a farther distance covering many places and reached the cashew grove in palode. A1 and A2 carried the dead body into the interior of the jungle and dropped it there. As reward A1 paid Rs. 1,000/- to P.W. 7 who in turn paid Rs. 500/- as taxi charges to P.W. 8. Conspirators then thought that with disposal of her dead body Geethakumari affair stood closed once and for all. But later developments proved that by such disposal a cornucopia of events has been set store temporarily.

5. Two days later, some forest officials came across a decomposed dead body of an adult female inside the jungle near Palode cashew plantation. P.W. 1, a forest range officer, reported the matter to Palode Police Station on which a crime case was registered. After inquest and autopsy, the dead body was kept in a mortuary and was later cremated.

6. It took about three years for the police to come to know that Geethakumari was murdered by A1 and A2 with the help of P.Ws. 7 and that P.W. 8 assisted them to dispose of the body. All the four were arrested during the latter half of May, 1987. The gold chain and locket of Geethakumari were recovered by the police on the strength of information elicited from A1.

7. There seems to be some dispute that the dead body spotted out by P.W. 1 was that of Geethakumari. Dr. K. Sreekumari, Assistant Professor of Forensic Medicine (P.W. 21), who conducted autopsy, gave evidence that it was the dead body of a female in the age group of 22 to 40 years. The saree (M.O. 1), blouse (M.O. 2), under skirt (M.O. 3), a pair of anklets (M.O. 5), a pair of ear studs (M.O. 6) collected from the dead body were unmistakably identified as those worn by Geethakumari. P.W. 6 said that she gave M.O. 1 saree to the deceased on the crucial day at her request. Mother and sister of Geethakumari (P.Ws. 11 and 12 respectively) identified the other articles, M.Os. 2 to 6. A female co-worker of deceased (P.W. 3) also identified those articles as worn by Geethakumari. With the aforesaid materials it has to be found that identity of corpus delicti stands firmly established.

8. There is hardly any dispute that her death was due to consumption of "ekalax" insecticide. Chemical analysis certificate (Ext. P14) issued after analysing the viscera proves that fact.

9. P.Ws. 7 and 8, while in custody, secured pardon from Chief Judicial Magistrate, Thiruvananthapuram, on the assurance that they would speak the truth in court. P.W. 7 in his evidence gave a full narration in accordance with the prosecution story set out earlier. Evidence of P.W. 8 is consistent with the version given by P.W. 7 from the stage at which his services as taxi car driver were availed of by the conspirators to transport the dead body from the vacant building to the cashew grove at Palode.

10. Certain facets in the evidence of P.W. 7 have been highlighted by the learned counsel to contend that his version is an improbable story apart from the general attack that it is tainted since it is evidence of an accomplice. One of the improbabilities, according to the learned counsel, is that no plot would be chalked out by any sensible person in which the dead body would remain inside a building which is liable to be frequented by workers of the weaving mill. (P.W. 3 has said that thread rolls were kept in the vacant building and the employees used to go there frequently). Evidence of P.W. 7 shows that after murder the dead body was kept in a room which was locked up. If that was so, why should the accused apprehend even a remote possibility of any employee the dead body.

11. Learned counsel contended that P.W. 8 does not really help the prosecution since his evidence does not rule out the possibility of Geethakumari having committed suicide. In support, he pointed out that Dr. Sreekumari could not observe any bruise or even marks in or around the mouth as indication that poison was thrust forcibly into her mouth. Nor any feature that there was forcible or even consented sexual intercourse. Of course, the doctor could not observe any such feature. But the doctor explained that decomposition was so advanced that no such feature would remain. Even if there was any such indication on the body, it would have got obliterated, or subsided in the process of decomposition. Yet prosecution could travel a long way since chemical analyst found blood stains, semen and spermatozoa on the under skirt of the deceased. Traces of stains of blood were noticed on her blouse also. (Vide Ext. P19 certificate of chemical analysis). This item of evidence is a guarantee that Geethakumari was subjected to sexual intercourse very soon before her death. We have absolutely no reason to think that Geethakumari would have committed suicide by going to that building in wedding costumes and by consuming ekalax procured by somebody else.

12. P.W. 7, no doubt, is an accomplice of a high degree. Though there is nothing improbable in the version narrated by him there is no question of acting on his testimony unless it is corroborated at least in material particulars. P.W. 8 (taxi car driver) corroborates testimony of P.W. 7 to a considerable extent. Except the criticism that P.W. 8 did not divulge this version to the authorities earlier, we do not find anything to disbelieve in what P.W. 8 said. We do not think that testimony of P.W. 8 deserve jettisoning for the mere reason that he did not voluntarily approach the police to appraise them of what he knew.

13. Recovery of M.O. 7 gold chain and M.O. 8 locket on the basis of information elicited from A1, if acceptable, is another item of corroborative evidence. Prosecution case is that gold chain and locket were removed by A1 from the dead body. (Removal of them was not for any material gain from a murder, but to conceal the identity of dead body since the locket contained a small photograph of Geethakumari). After arrest, A1 told investigating officer that gold chain was pledged with P.W. 14, a goldsmith. It was recovered from his shop. P.W. 14 has deposed in complete agreement with this version. His evidence is assailed on the ground that he had no licence to conduct money lending business. That is a different matter. The locket was recovered from a closed box kept in the house of A1. There can, possibly, be no doubt that the gold chain and locket belonged to Geethakumari. Apart from good evidence regarding identification of ornaments, the photo inserted in the locket gives a firm assurance that those ornaments belonged to Geethakumari. She would, in all probabilities, have worn them when she went to the vacant building on the fateful day. So, recovery of the ornaments ensures confidence in our mind that A1 was in possession of the gold chain with locket soon after the murder of Geethakumari.

14. Learned counsel for the appellants contended that those two items of evidence cannot legally be used to corroborate the testimony of an accomplice. According to him, evidence of P.W. 8 is unusable since he also is an accomplice. Evidence of one accomplice cannot be corroborated with evidence of another accomplice, contended the counsel. He further argued that evidence u/S. 27 of Evidence Act regarding recovery of ornaments is not usable to corroborate accomplice's testimony.

15. First question in this case is whether P.W. 8 is an accomplice at all. The ancillary question is, even if he is an accomplice, can his testimony be used as corroborative evidence ? In dealing with those questions one must know as to who is an accomplice. The word accomplice" is ordinarily used in connection with law of evidence and rarely under substantive law of crimes. Accomplice evidence denotes evidence of a participant in crime with others. Primary meaning of accomplice, as observed by A. N. Ray, J. (as he then was) is "any party to the crime charged and some one who aids and abets the commission of crime" (vide Sheshanna v. State of Maharashtra AIR 1970 SC 1330) : 1970 Cri LJ 115. S. 306 of the Code of Criminal Procedure throws some light to know about an accomplice. "Any person supposed to have been directly or indirectly concerned in or privy to an offence" is treated an accomplice under the section. While S. 133 of the Evidence Act shows that there is no legal taboo in convicting a person on the uncorroborated testimony of an accomplice, it remains only a legal theory, whereas in practice no court would do so. Court may have to presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This is the caution sounded by Illustration (b) u/S. 114 of the Evidence Act. Philosophically an accomplice, who betrays his associates, is not a fair witness. It is possible that he may weave false details into those which are true. It is mainly due to this possibility that courts, as a rule of caution, insist on corroboration in material respects. In the words of Hidayatulla, J. (as he then was) "this rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law" (vide Haroom Haji v. State of Maharashtra, AIR 1968 SC 832 : 1968 Cri LJ 1017). Three reasons usually dissuade the court from acting on the uncorroborated testimony of an accomplice : (1) An accomplice is likely to swear falsely in order to shift the guilt from himself; (2) an accomplice as a participator in crime is likely to disregard the sanction of oath and (3) an accomplice gives his evidence under promise of a pardon and this hope would lead him to favour the prosecution. But the nature of corroboration is that it should be confirmatory evidence. It may consist of evidence of eye witness or of circumstances such as conduct of the person. A Constitution Bench of the Supreme Court has laid down in State v. Basawan Singh (AIR 1958 SC 500) : 1958 Cri LJ 976 that "even in respect of evidence 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 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 SC 821) : 1966 Cri LJ 605.

16. Sometimes accomplice was not a willing participant in the offence but a victim of it. Sometimes an accomplice would have acted under pressure (vide Srinivas Mall v. Emperor, AIR 1947 PC 135) : 1947 ALJ 496. Such person, though technically be termed as accomplice, may not really evince suspicion in the mind of the court about his role. P.W. 8's role in this case is of such a nature. His participation in the crime was that he lent his taxi car for transporting the dead body, without even knowing that it was the dead body of a murdered person. At the last stage when he was told that the deceased happened to die accidentally in sexual intercourse, P.W. 8 became panic-stricken and could not help since his part was by then over. There is no legal taboo in using his testimony as a piece of corroborative evidence.

17. In the light of the above discussion, we have no reason to sideline the testimony of P.W. 8 or the circumstance relating to the recovery of the gold chain and locket from using them as corroborative evidence.

18. Apart from those two items, there are other corroborating evidence also. P.W. 12 sister of Geethakumari, has given evidence that when Geethakumari left the house on the fateful day, she had carried a sum of Rs. 450/- with her. This confirms that part of the testimony of P.W. 7 who said that A1 took Rs. 450/- from the dead body (kept under the blouse). The certificate of chemical analysis and Dr. Sreekumari's evidence that the deceased had consumed "ekalax" is another item which corroborates the testimony of P.W. 7. A1, A2 and P.W. 7 were seen by P.W. 9 at 4 p.m. on the date of occurrence at Pothencode junction. P.W. 24 said that he saw those three persons at 8-30 a.m. in the temple compound. They also render the testimony of P.W. 7 believable. Despite P.W. 7's testimony being tainted evidence as an accomplice, we are assured of the truth of the version since the same was corroborated in material particulars by other witnesses and also circumstances adverted to above. We, therefore, choose to act on the said evidence, as did by the lower court.

In the result, we confirm the conviction and sentence and dismiss the appeals.

Appeals dismissed.