MAOHU v. STATE OF KERALA

~the factum of their having been sighted close to the place of occurrence at or around the time of occurrence. Appellant challenged his conviction before this Court. Allowing the appeal, the Court B HELD: 1. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the C inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt. [Para 5] [1000-F-H] D

2.1. The most significant issue in the present controversy is the veracity of the confessional statements made by the appellant and the other accused Sibi before PW21, Circle Inspector of Police. It is evident that the aforesaid statements were made by the accused E before a police officer while the accused were in custody of the police. Section 25 of the Indian Evidence Act postulates that a confession made by an accused to a police officer cannot be proved against him. Additionally, Section 26 of the Indian Evidence Act stipulates that a confession made by an accused while in police custody cannot be proved against him. It is evident from the factual position, that the statements made by the appellant and Sibi were made to a police officer while the accused were in police custody. It is, therefore, apparent that in terms of the mandate of Sections 25 and 26 of the G Indian Evidence Act, the said statements could not be used against the appellant and the other accused Sibi. But then, there is an exception to the rule provided for by Sections 25 and 26 aforesaid, under Section 27 of the Indian Evidence Act. As an exception, Section 27 of the H F 990 SUPREME COURT REPORTS [2012] ~~ S.C.R. A Indian Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him; if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Indian Evidence Act s is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Indian Evidence Act is applicable only if the confessional statement leads to the discovery of some new 1'act. The relevance under the exception postulated by Se,ction 27 c aforesaid, is limited " ... as it relates distinctly to the fact thereby discovered .... ". The rationale behind SE!Ction 27 of the Indian Evidence Act is, that the facts in question would have remained unknown but for the disc~osure of the same by the accused. Discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate c:ontained in Sections 25 and 26 of the Indian Evidence Act. [Para 0 E 17] [1021-C-F, H; 1022-A-D]

2.2. The relevance of the confessional statements · would depend on the discovery of facts based on the · information supplied by the accused. If any fresh facts have been discovered on the basis of the conifessional F statement made by the accused, the same would be relevant. If not, the confessional statement c:annot be proved against the accused, to the detriment of the accused. The confessional statements made by the accused (vide Exhibit P-9 and P-10) cannot be said to G have led to the discovery of an unkriown. fact, because the statements of PW7, PW11, PW13 and PV\f15 reveal that the factual position in respect of the recovery of the articles from the place from where the same were shown to have been eventually recovered, was known to the H public at large by noon (and certainly before 2.30 p.m.) MAOHU v. STATE OF KERALA 991 B i.e., well before the confessional statements had been A recorded. As per the deposition of P.J. Thomas {PW21), Circle Inspector of Police, " ... A-2's confession statement was recorded· at about 2.45 p.m .... ". The public had become aware of the recovery by "noon", whereas, appellant was arrested at 1.00 p.m., and Sibi-accused no.2 was arrested at 1.30 p.m. and their confessional statements were recorded by the police after their arrest In the background of the aforesaid factual position, it is not possible to conclude that the confessional statements made by appellant vide Exhibit P-10 and Sibi- c accused no.2 vide Exhibit P-9, can be stated to have resulted in the discovery of any fresh facts. The factual position that recovery of stolen ornaments would be made by the police was a matter of common knowledge well before the confessional statements were. made. The 0 · said statements· recorded vide Exhibits P-9 and P-10 are inadmissible inspite .of the mandate .contained in Section_ 27 of the Indian Evidence Act for the simple reason, that they cannot be stated to have resulted in the discovery of some new fact. In the factual background of the present controversy, the gold ornaments which E eventually came to be recovered by the police, allegedly . at the instance of accused, may well have been planted by the police; On account of the fact that the confessional statements made by appellant and Sibi accused no.2, which is the main linking factor in the F circumstantial evidence of the prosecution version of the controversy, being inadmissible as the same cannot be proved against. them, the prosecution's case stands fully demolished. [Para 18] [1022-F-G; 1024-D-H; 1025-A-D] G

#3. The second significant conglomerate of evidence to link the accused to the crime in question, is their ' alleged presence at or around the place of occurrence. This evidence emerges from the statements made by PW6 to PW9. The prosecution, through these witnesses, H 992 SUPREME COURT REPORTS [2012] 2 S.C.R. 0 A have endeavoured to demonstrate the presence of the accused, in the vicinity of the place of occurrenice, at around the time of occurrence. The statement of PWG is wholly insignificant to connect the accused with the~ crime under reference. PW7 has given his version of having B seen the accused close to the place of occurrenc:e. But the statement of PW7 is so unrealistic, that it is worthy of rejection without recording any reasons. It is strange that PW7 reached the embankment by swimming upto it since the last boat had already left. He claims to have kept c his clothes afloat and above the water while he was swimming through the water. It is, therefore, tlhat his clothes had remained dry. Even though, in his statement, he asserted that " ... I identified him as A-2 in the light of my torch ... ". He subsequently stated that a person was seen coming, flashing a torchlight towards east, and that, he was identified by PW7 as appellant. As per the said ·statement, the identification was made on the basis of the . torch held in the hands of the <l:tppellant. The aforesaid contradiction is hard to digest. How PW7 retained the E torch in his hand in a dry condition, while swimming, has not been explained. If he was holding his torch in one hand and clothes in the other, it is difficult to understand. how he swam across the water. And if the accused himself was carrying the torch, the light would n<>t fall on his face, and in that situation, the accused could fllOt have loeen identified, because by then it was past 9 p.m. These . and other such like discrepancies, when viewed closely, leave no room to accept the credibility of the statement made by PW7'. PW8 was the manager of Toddy Shop No.86 at Kuttanad. As per the statement of PW8 both the G accused purchased a bottle of toddy each, and after drinking the toddy, they left the toddy shc>p. This · statement does not establish the presence of accused at or near the place of occurrence. PW9 is the only other witness produced by the prosecution to show the H presence of the accused close to the place of F MAOHU v. STATE OF KERALA 993 occurrence, at or around the time of occurrence, on A 8.5.1998. The statement made by PW9, during the course of his deposition before the Sessions Court, in connection with his having seen the accused near the place of occurrence, had not been disclosed by him even to the police during the course of investigation. In fact B during the course of his cross-examination he acknowledged " ... I have not told anybody-else about my having met the accused persons there, I am speaking about it for the first time in court ... ". In fact PW9 was working as a labourer in the house of PW10. PW9 had not c even disclosed the aforesaid factual position to his employer PW10, even though he must have known, that PW10 was the elder brother of husband of the deceased 'P'. In this situation it is difficult to consider the statement of PW9 as credible. In view of the aforesaid evaluation of 0 the statements of witnesses examined by the prosecution, to establish the presence of the accused, in close vicinity of the place of occurrence, there remains no proved connection of the accused with the accusations levelled against them. Even otherwise, the E . presence of the accused close to the residence of 'P' is inconsequential, because according to the statement of PW2 (husband of the deceased 'P') both the accused were known to him as they were his neighbours. Surely, presence close to ones own residence cannot be the basis for drawing an adverse inference. This Court is F therefore satisfied, that the statements of PW6 to PW9, do not in any manner, further the case of the prosecution. [Para 19] [1025-E-H; 1026-A-H; 1027-A-F]

#4. There are other glaring discrepancies as well. A G large number of witnesses, including PW1, PW3, PW4, PW5, PW7, PW10, PW13, PW14, PW15 and PW16, deposed, that they had seen utensils lying on the steps of the ghat. Some of the witnesses had gone further to explain, that some of the utensils were washed whereas H 994 SUPREME COURT REPORTS [2012] 2. S.C.R. A some were still to be washed. These statements were made by the witnesses so as to support the prosecution version mentioned in the charge-sheet, whereini it was projected that 'P' had gone out to the steps of the ghat after taking the supper meal, to wash the dirty utensils. B The inquest report (Exhibit P-3), however, does not ,disclose the presence of any utensils at the !~hat. In c:onjunction with the aforesaid, it is relevant to notice, that during the deposition of PW21, Circle Inspector o·f Police, who carried out the investigation in the CiilSe, he c categorically asserted (in response to a pointed question posed to him), that when he reached the ghat there were no utensils. He further stated, that none of the wiitnesses told him, that there were utensils at the ghat 01r on the . steps leading to the paddy fields. The absence! of any 0 evidence supporting the prosecution case depicting the ll'eason for 'P' to go out of her house at late hours in the night, so as to be found alone by the accused, reveals the lack of evidence to project the prosecution version reflected in the charge-sheet. But more than that, is the E contradiction in the statements of PW1, PW3, PVV4, PWS, PW7, PW10 and PW13 to PW16 on the one hand, and the statement of PW21 coupled with the details mentioned in the inquest report on the other. The genesis of the crime should ordinarily emerge from the inquest report specially when it is in respect of a patent fact. If utens; ils were F . actually at the ghat, the mention thereof could not have been left out therefrom. This would be so even if the inquest report had been prepared with lhalf the seriousness required in its preparation. A perus; al of the inquest report reveals that the same was painstakingly G recorded, and even minute details have been recorded therein. It is difficult to state which of the two s;ides has deposed correctly and/or which one of them has · deposed falsely. All the same, the instant aspE!Ct of the deposition creates a serious doubt about the c:redibility H of the evidence on the instant factual aspect, irrespective MAOHU v. STATE OF KERALA 995 of the significance thereof in proving the charges. [Para A 20] [1027-G-H; 1028-A-H; 1029-A]

5.1. Additionally, the charge-sheet pointedly records that appellant caught hold of the plated hair and neck of 'P', and Si bi-accused no.2 caught hold of her feet, and B forcibly dragged her into the water and suffocated her thereby cause her death by drowning. This factual position remained unproved as not a single prosecution witness narrated the said factual position, so as to establish the manner in which 'P' came to be drowned by the two accused. [Para 21] [1029-B-C] C

5.2. PW20 (who had conducted the post-mortem) had expressed in the post mortem certificate dated 9.5.1998, and he had affirmed during the course of his deposition before the Sessions Court, that the death of 'P' had been D caused by drowning. The fact that she had been smothered first and thereafter drowned by the appellant and Si bi cannot be stated to have been established by the prosecution. No injury whatsoever was suffered by deceased 'P' either on her neck or on her feet. 'P' was E 47 years old at the time of occurrence. She would not have easily. allowed two drunkards, who were in a state of intoxication, to carry her away by holding her by her neck and feet as has been alleged in the charge-sheet.. 'P' would have been expected to fight for her life, F consequent upon an assault on her, at the hands of the appellant and Sibi. Injury nos.1 and 2 referred to by the courts below, so as to infer smothering, is clearly unacceptable in view of the fact that PW20, in his cross examination, clearly asserted, that injury nos.1 and 2 are G possible if a person falls and during the course of that fall the right side of the face comes in contact with a rough hard surface. PW20 also stated during his cross examination, that all the injuries suffered by 'P' were superficial injuries. In the aforesaid view of the matter, H even the medical evidence produced by the prosecution, 996 SUPREME COURT REPORTS [2012] 2 S.C.R. A does not suitably support the prosecution story, that the deceased 'P' was, first assaulted by the appellant and Sibi, and thereafter, drowned. The deceased is alle~1ed to have been dragged, smothered and forcibly drowned. The instant version of the prosecution story, is wholly B unacceptable, keeping in mind the statement of PW20. [Para 22] [1029-D-H; 1030-A-B]

#6. The motive for the accused tn committing the murder of 'P' is stated to be theft of her gold ornaments. Appellant is a labourer, and Sibi-accused no.2 is a toddy C trapper. If the motive had been theft, so as to snatch away the jewellery of 'P', it is difficult to understand why the accused only took away the golden chain around the neck of the deceased, and the six bangles on heir right arm, and forsake the earrings on the person 1Jf the D deceased. It is relevant to mention, that the factum of the earrings found on the person of the deceased has been explained in a wishy-washy manner. PW21, Circle Inspector of Police, has specifically deposed c>n the recovery, retention and return of the earrings to the family E of the deceased. The statement of PW21 reveals e11 sorry state of affairs in handling the investigation of th1:! case in hand. According to the statement of PW21, the earrings were removed from the dead body of 'P', by one of the policemen who was assisting him in the preparation of inquest report on 9.5.1998. There is no documentary record of this. The earrings were then (according to PW21) retained by the writer at the police station. This again, without maintaining any record. On 11.6.1998, the said earrings are stated to have been returned to PW2, G husband of deceased 'P'. It was also deposed by PW21, that PW2 had visited the police station to take back the earrings. Accordingly, the earrings were returned to him. Yet again, without maintaining any record. Coupled with the conclusion drawn in respect of the gold chain and the H six gold bangles, allegedly recovered at the instance of F MAOHU v. STATE OF KERALA 997 appellant and Sibi, this Court is of the view that it may well A be, that the ornaments were never taken away from the person of the deceased 'P', because if the motive had been theft of gold ornaments, then all the gold ornaments would have been taken away, most certainly the earrings which were openly and clearly visible. The accused were B poor persons, for them the earrings alone would have meant a lot. If nothing else, the earrings would have balanced (to some extent at least) the spoils in the hands of the accused. It may well be, that the aforesaid ornaments came to be planted only with the object of c solving the case in hand. This aspect of the matter also creates a serious doubt in the prosecution case. [Para 23] [1030-C-H; 1031-A-C]

#7. The evidence produced by the prosecution does not, in any way, establish the guilt of the accused. The D prosecution had endeavoured to prove the allegations the basis of levelled against the accused on circumstantial evidence. The mainstay of the prosecution evidence is the recovery of the gold ornaments belonging to the deceased 'P' at the instance of the appellant and E Sibi. The statements made by the appellant and Sibi (vide Exhibits P-10 and P-9 respectively) cannot be proved against the accused, or to their detriment. This by itself removes the most vital link in the chain of events sought to be established by the prosecution against the F accused. Evidence produced to establish the presence of the accused near the place of occurrence, at or about the time of the commission of the crime has also been found to be irrelevant. This because, the accused were in any case neighbours of the deceased 'P'. The theft of G . the golden ornaments worn by the deceased 'P' was also doubtful. The explanation tendered by the prosecution of the earrings worn by the deceased 'P' when her body was recovered, is also far from satisfactory. From the statement of PW20, and the surrounding facts, it cannot H 998 SUPREME COURT REPORTS [2012] 2 S.C.R. A be positively inferred that the deceased 'P' was first smothered and then drowned as has been alleged by the prosecution. Also there were serious contradictions ini the deposition of the prosecution witnesses. The prosecution has failed to establish an unbroken chain of evEmts lending to the determination, that the inference bE~ing drawn from the evidence is the only inescapa1ble conclusion. In fact the prosecution has not been able to connect the accused with the alleged crime in any manner whatsoever. The appellant is liable to be . c acquitted of the charges levelled against him. [Paras 24, B 25] [1031-D-H; 1032-A-C]

#8. The evidence to establish the charges against the co-accused Sibi was on the same lines as that projected against the appellant-accused. Sibi-accused no.2 was D accused of the allegations for exactly the same reasons, as weighed with the courts below against the appellcmt. He was also convicted for the same reasons. If Sibi accused no.2 had preferred an appeal, the result wo11Jld have been exactly the same, as it has been in the present E appeal, in respect of the appellant. To do complete justiice, it would be just and appropriate to extend the same benefit as has been extended to the appellant, also to Sibi-accused no.2. Therefore, for exactly the same reasons as have weighed with this Court in the instcmt F appeal, to determine the acquittal of the appellant, this Court hereby orders the acquittal of Sibi-accused no.2 as well, even though he has not preferred an appeal so •as to assail the impugned judgment whereby he stands convicted. [Para 27] [1032-F-G; 1034-E-F]