VARKEY Vs. STATE
LAWS(KER)-1955-2-8
HIGH COURT OF KERALA
Decided on February 28,1955

VARKEY Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THE prosecution case is correctly set out as follows in paragraph 2 of the lower court's judgment. "the accused is the son of Pw. 1. Pw. 1 and his three sons, including the accused, were all living together with their families in maikkal House, Ancheri-Cherikkal, THEkkumbhagom Muri, Karikkode Pakuthy, thodupuzha Taluk. THE deceased Aley was the wife of the accused. THEy had two children, Kuriakko and Mariam aged 6 and 4 years respectively. THE accused was in Military service for some time. He left the Service and returned to his house a few months prior to the occurrence. He began to suspect the fidelity of his wife, and they used to quarrel often. On 2. 12. 1952 after 4 P. M. , Aley took her two children to the spring (oli) on the eastern side of the house for bath. She also wanted to bring some water for house-hold use. At that time Pw. 1 was sitting in the "chachukettu" (lean-to out-house) on the north-western side of the house and repairing a plough. THE accused was sitting on the western verandah of the house. At about 5 P. M. , the accused took the chopper (M. O. 1) and went to the east. In short while, Pw. 1 heard the sound of something heavy falling on the ground and also somebody groaning from the east. He immediately rushed to the place from which the sound was heard and found Aley and her daughter Mariam lying on the ground with bleeding injuries and the accused standing near them with the chopper in his hand. Pw. 1 cried out, and the accused ran towards east with chopper, Pw. 1 proceeded to the place where the injured persons were lying, and in short time both of them died, THE accused went to the shop building belonging to Pw. 10 where Pw. 8 was running a grocery shop. Pw. 10 happened to be there at that time, THE accused surrendered the chopper which was soaked in blood and said that he had killed his wife and child. As per the direction of Pw. 10, the hands of the accused were tied together with a cloth and the accused was detained there. After some time, Pw. 1 proceeded to Thodupuzha Police Station and gave the first information statement (Ext. A) which was recorded by Pw. 13 who was in charge of the Police Station. He communicated that information to the Circle Inspector, Pw. 14, who proceeded to the scene of occurrence. He found the accused in the shop of Pw. 8. He arrested the accused and took into custody the chopper (M. O. 1) and prepared the mahazar, Ext. F. Inquest was held over the dead bodies (vide Exts. G and H ). Pw. 4 conducted the autopsy. Exts. G and D are the certificates dated
(2.) 12. 1952. On 4. 12. 1952 the Magistrate (Pw. 5) recorded the confessional statement of the accused which is Ext. E. After due investigation charge was laid before the First Class Magistrate of Thodupuzha who after the preliminary enquiry has committed the accused to this court to stand his trial". That the appellant's wife, Aley, and daughter, Mariam, died as a result of violence inflicted on them in the evening of 2. 12. 1952 at a place adjoining the residential compound of his parents with whom the appellant, his wife and their two children lived at that time is amply borne out by the evidence on record. The post-mortem certificate, Ext. C, describes the injuries sustained by Aley as follows: "an incised wound 4" in width situated on the left side of neck extending from the inner end of the left collar bone to the upper part of the shoulder blade behind. On cleaning the wound the vertebra on the root of the neck was found obliquely cut from above and downwards to the right. The other structures on the left side were also found cut". In Ext. D, the post-mortem certificate issued for the examination of Mariam's body, the injuries found on it are described thus: "a gaping incised wound on the right shoulder extending as far as the lower border of the right scapula behind and 2 1/2below the right nipple in front. On cleaning the wound the right collar bone and the upper right 7 ribs in front and the inner border of the right scapula and the ribs in front of it are found completely cut. The upper lobe of the right lung is found cut into two parts". These certificates and the testimony of the medical witness, Pw. 4, show that both Aley and Mariam died on account of shock and haemorrhage resulting from the injuries. The injuries clearly show that whoever inflicted them must have done so with a heavy sharp weapon and also applied considerable force in inflicting them. The chopper (M. O. 1) which is alleged to have been used for the infliction of these injuries is a heavy one and it is in all 20" long of which a length of 5" is taken up by the wooden handle, another 4" form the iron handle and the blade being 11". The blade was very sharp and at its broadest part the width was 2 3/8" (vide ext. F.) 3. The main evidence to connect the appellant with these murders is the testimony of his own father, P. W. 1. It was he who gave information about the occurrence to the police. The Thodupuzha Police Station where the information was lodged was 7 miles away from his house. His statement was recorded there at 1. 30 a. m. (3. 12. 1952) and the evidence he subsequently gave at the trial conforms to it. At about 4 P. M. on 2. 12. 1952 while he was preparing a handle for a plough he saw the appellant sitting on the western verandah of the house. Along with her children the appellant's wife had gone to a spring or a pond close by and to the east of their compound to give the children a bath and to fetch water for domestic purpose. She had taken a copper vessel with her to bring water. Sometime afterwards Pw. 1 saw the appellant going in the direction of the pond and he had a chopper (M. O. 1) with him. Not long after that Pw. 1 heard a sound from the east of some heavy object falling to the ground and somebody groaning or crying in distress. At once Pw. 1 rushed to the direction wherefrom these were heard and to this consternation he found his grand-son Kuriakko running up to him crying and Aley and Mariam lying wounded and profusely bleeding at the foot of a cocoanut tree at a distance of over 80' from his house and over 100' westward from the pond. The appellant was seen standing by their side with the chopper, M. O. 1, raised in his hand. The chopper was blood-stained. Seeing him or hearing his cries the appellant ran away to the east and got into the adjoining rubber estate. Hearing the cries raised by Pw. 1 and the women-folk of the house some neighbours gathered there. When Pw. 1 approached Aley and Mariam, life was not extinct in them, he saw them shivering and both expired within a few minutes. Sometime afterwards Pw. 1 proceeded to the Thodupuzha Police Station to give information about the occurrence. Pw. 2 who was at that time felling timber in the adjoining rubber estate saw the appellant proceeding eastwards through the estate with a blood-stained chopper in his hand. He heard the cries of the inmates of the house of Pw. 1 and when he went there he found Aley and Mariam lying dead in their compound. He like others who went there before him found an empty copper vessel lying close by. The ground around it was wet. Going eastwards through the rubber estate the appellant reached the grocery shop of Pw. 8 and he found that Pw. 10, the owner of that building was also there. He wanted to hand over the blood stained chopper to Pw. 10, but at the latter's behest one of the persons present there (Pw. 3) took it over from the appellant and handed it over to Pw. 8. The appellant then stretched himself down in the courtyard in front of the shop and told those present there that "he had done all that". When Pw. 10 asked him what it was that he had done he said he had come after finishing off his wife and daughter. The reason for his action was stated by him to be that his wife used to misbehave and he could not bear any longer her running after Pulaya coolies. Pw. 10 sent Pw. 3 to the house of Pw. 1 to verify whether it was true that the appellant had caused the death of his wife and daughter. Pw. 10 also asked Pw. 8 and another person who was there viz. , Pw. 6, to tie the appellant's hands together with a cloth. Afterwards Pw. 10 himself proceeded to the house of Pw. 1 to find out for himself what had happened there and on his return to the shop of Pw. 8 he arranged with Pw. 6, 8 and others to detain the appellant there until after the police came. P. W. 10 is a very respectable person belonging to that locality. His evidence that on the evening of 2. 12. 1952 the appellant went to the shop of P. W. 8 with a blood-stained chopper in his hand, that he confessed to those present there that he had killed his wife and daughter, that the chopper was surrendered there, that he made arrangements to see that the appellant was detained there till next morning and as to what the cause of killing the wife and daughter was are all corroborated by the evidence of P. Ws. 3, 6 and 8. The learned judged below has believed all these witnesses and during the course of the able argument Counsel for the appellant made before us he had very little to tell us by way of impeaching the credit of their evidence. On the evidence referred to above and which have all been discussed in detail by the learned Sessions judge, we do not for a moment hesitate to degree with him that the appellant caused the death of his wife and daughter by cutting them both with the chopper, M. O. 1. Pw. 1 has identified that chopper as belonging to his house-hold and as the one which the appellant had taken with him when he went out eastwards to the direction of the spring just before the occurrence. The evidence of Pws. 3, 6, 8 and 10 is to the effect that the appellant had surrendered it at the shop of P. W. 8 on the evening of 2. 12. 1952 and that it was then blood-stained. The learned judge has been well impressed with the evidence of p. Ws. 1 and 10 and we cannot find any reason to take a different view regarding the truthful character of their evidence. P. W. 1 is the appellant's father and p. W. 10 is, as mentioned earlier, a very respectable inhabitant of the locality paying a land revenue assessment of over Rs. 200/ -. To lend assurance to the evidence so far referred to there is the confession (Ext. E) which the appellant made before P. W. 5, who was then the Munsiff-Magistrate at Thodupuzha. The admissibility of that confession was found by the learned Sessions Judge to be not open to any exception and notwithstanding that it was retracted the learned judge thought it fit to use it to support the other evidence in the case. Counsel for the appellant sought to make a point out of a statement P. W. 5 made in his evidence that the appellant did not request him to record the confession. Reading the deposition of P. W. 5 as a whole, together with the record of the preliminary questions put to the appellant before the confession was recorded, the answers he gave to them and the certificate appended to the confession it is fairly clear to us that by that statement the witness did not mean anything more than that the appellant when he was taken before him did not of his own tell the witness that his confession should be recorded. Regard being had to what the appellant told P. W. 10 and P. Ws. 3, 6 and 8 soon after the occurrence there is no reason to think that the confession was not voluntarily made or that it is not true. It sets out what he did towards his wife and his daughter, why he did that and what his conduct had been after the commission of the crime. In his confession the appellant mentioned that he met P. W. 10 at the shop of P. W. 8, that he confessed to him what he had done, that he surrendered the weapon at the place and that he was detained thee till the police arrived there on the next day. The whole confession or rather the material portions of it are corroborated by the other evidence on record. According to Ext. E, the appellant was proceeding to the police station when he met P. W. 10. The nature of the injuries noticed on the bodies of the appellant's wife and daughter, the parts of the bodies the appellant chose to attack and the character of the weapon leave us in no doubt that by his acts the appellant intended to cause the death of his wife and daughter. He has therefore rightly been convicted of murder of both these persons and we confirm the conviction for two separate murders. The next question we have to deal with his that of the sentence. The State has filed the revision for enhancing the sentence into one of death and we have now to address ourselves to the question whether this is a proper case for enhancement. Counsel for the appellant had practically confined his arguments to this aspect of the case. While he did not dispute our powers to enhance a sentence of transportation for life into one of death he laid great emphasis on the point that that power is used very sparingly and that when the Sessions Judge has declined to pass the extreme penalty of the law after giving his reasons therefor, the High Court should not substitute a sentence of death for that of transportation for life passed by the Sessions judge. A further reason urged by Counsel against our invoking revisional powers to convert the sentence of transportation for life into one of death was that very seldom the extreme penalty of the law was inflicted on an accused person when the case against him rested on circumstantial evidence. We may dispose of this latter argument first.
(3.) THIS case does not rest entirely on circumstantial evidence nor has the learned judge based the conviction of the appellant on circumstantial evidence alone. No doubt the important witnesses examined in the case only give evidence of circumstances pointing to the appellant's guilt. The testimony of Pw. 1 and the testimony of the group of witnesses headed by Pw. 10 establish conclusive circumstances to bring home the guilt to the appellant. At the same time the learned judge has also placed reliance upon the extra judicial confession the appellant made immediately after the occurrence to pw. 10 and others and on the judicial confession before Pw. 5 questions relating to the admissibility of the latter confession and the reliability of both the confessions apart, there is no gainsaying that these confessions furnish direct evidence. Further, decided cases show that the view that when a conviction for a murder is based on circumstantial evidence alone, the extreme penalty of the law should not be imposed upon the offender is one found unacceptable by most courts. The following quotations from pp. 50 and 51 of Wills on Circumstantial evidence (Indian Edition, 1925) may with advantage be quoted here: it . . . . . . . . . . . . For some time back it has been the fashion with a great many people to treat "purely circumstantial evidence" as implying an inherent weakness, and as necessarily more or less unsatisfactorily. There is hardly a case of murder in which a reprieve is sought or a conviction appealed against in which something of the kind is not urged. Fortunately there has been no recent judicial utterance countenancing such a general proposition, and the judges have been fully alive to the fact that circumstantial evidence, like any other, must in every case be tested and weighed, and prevail or not by its own inherent proving force". In re Sheshayya - AIR 1941 Madras 120 - we get a clear summary of the Madras case law bearing on the point by Mockett, J. (Burn, J. concurring ). The learned judge first referred to the Sessions Judge's observations about the sentence to be passed in that case and then went on to show that the view was wrong. "the learned (Sessions) Judge dealt with the question of the sentence as follows: 'as to the punishment since the guilt of the accused has been proved by strong circumstantial evidence, this is not a case calling for capital punishment. I, therefore, sentence him to transportation for life' That reason, namely that the conviction was based on circumstantial evidence, has been in innumerable cases, condemned by this High court. It was condemned in 1941 by Ayling and Kumaraswami Sastri, JJ. in 1915 mwn 34 (AIR 1915 Madras 542), in 1921 by Ayling and Krishnan, JJ. , in 44 Madras 443 (AIR 1921 Madras 423) and again in 1929 condemned by Waller and Krishnan pandalai, JJ. , in 2 MCrc 158. (AIR 1929 Madras 667 ). There is thus ample authority for so self-evident a proposition. It must surely be obvious that it matters not how an accused's guilt is established whether by the testimony of eye-witnesses or by the testimony of combined circumstances provided that it is established beyond all reasonable doubt and the measure of proof must be the same in either case. Our attention has been drawn to some decisions the effect of which is as stated in the headnote in 53 Madras (AIR 1930 Madras 446 ). "where on a conviction for murder the Sessions Court awarded a sentence lesser than death, the High Court will not enhance the sentence, unless it is satisfied that on the evidence in the case the sentence of death is the only possible sentence which could have been passed by the sessions Court". As on a conviction for murder the law provides for an alternative sentence we have no doubt that when using the phrase "the only possible sentence" the Court intended to express the view that it was only in cases in which the lower court had manifestly failed in its duty that the high Court would impose the sentence of death. As stated by Waller, J. , in 2 mcrc 158 (AIR 1929 Madras 667), because the lower court had failed in its duty there was no reason why the High Court should do the same. In this case we consider that the trial court's duty was to impose the sentence of death". In the 2nd and the 3rd cases referred to in the above extract the High Court exercised its powers to enhance the sentence of transportation into death. The decision in In re Sheshayya's and the first three cases noted in the above extract make the case clear that the accepted view in the Madras High Court is that where the court is satisfied beyond reasonable doubt about the guilt of the accused, the fact that the evidence is circumstantial and not direct, is not a fact which should per se affect the sentence and there is no unwritten rule or principle standing in the way of the imposition of a death sentence in cases where the evidence is purely circumstantial. In a very early case, In re Venulada Janaki 2 Weir 736 Brandt, j. , observed that a consideration with the species of evidence on which the guilt of an accused person is found should not in itself determine the nature of the sentence. In Mohammed Yusif v. Emperor AIR 1930 Sind 225 Wild A. J. C. after reviewing the case in the Sind Judicial Commissioner's Court said at page 244 of the report: "on the other hand in the recent case of Karimbukhsh v. Emperor (11 Crlj 642) a Bench of this Court on an appeal filed by Government enhanced the sentence of transportation for life to one of death in a case which depended merely on circumstantial evidence. From the above case it is clear that there is no practice of this Court that the lesser sentence should invariably be passed in a murder case where the evidence is merely circumstantial. It is not the practice of the Madras or Bombay High Courts and in England and most of the murderers are hanged on circumstantial evidence. In this case the circumstantial evidence is to my mind very clear and the murderers wee particularly atrocious as the murdered boys were so young and were the step brothers of accused 1. I see therefore no reason why the death sentence should not be confirmed". We consider it unnecessary to multiply authorities on this aspect of Counsel's contention. The present case does not depend entirely on circumstantial evidence though even after discarding the confessions made by the appellant the conviction for their murder can well be maintained. There is no warrant either for the contention that in a case of murder depending entirely upon circumstantial evidence the extreme penalty of the law cannot or should not be imposed on the accused. In a very recent cases, Bissu Mahgoo v. State of Uttar pradesh AIR 1954 Supreme Court 714 Their Lordships of the Supreme Court point out that it was competent to the High Court in revision to go into the question of sentence and that it was well within the power of the High Court to enhance the sentence of transportation for life into one of death. The principles on which the High Court can or should interfere had been enunciated earlier by their Lordships in Dalip Singh v. State of Punjab AIR 1953 Supreme Court 364. The relevant passage in the judgment in that case is as follows:- "in a case of murder, the death sentence should ordinarily be imposed unless the trying judge for reasons which should normally be recorded considers it proper to award the lesser penalty. But the discretion is his and if he gives reasons on which a judicial mind could properly found an appellate court should not interfere. The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons. It is not enough for an appellate court to say, or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate Court but to the trial judge and the only ground on which an appellate Court can interfere is that the discretion has been improperly exercised, as for example where no reasons are given and none can be inferred from the circumstances of the case or where the facts are so gross, that no normal judicial mind would have awarded the lesser penalty". With these principles before us we shall now consider whether in the present case enhancement of the sentence of transportation for life passed by the learned Sessions Judge into one of death is called for.;


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