- (1.) THE murder of Saraswathi Amma alias Baby in the house of her husband Krishna Pillai Krishnan Nair, accused No. 2, at Pattom House in the City of Trivandrum, between 2 and 4 P. M. on August 5, 1957, has given rise to the criminal proceedings from which Criminal Appeals Nos. 9 and 52 of 1959 arise. Accused No. 1 Sivarajan alias Ampi is the servant of accused No. 2, and accused No. 3 Sekharan is the brother of a kitchen-maid who had been employed by accused No. 2. The prosecution case against all the three accused persons was that they were concerned in the murder of Saraswathi Amma. Accused No. 1 was charged under S.302, 201, 381 and 461 of the Indian Penal Code; accused No. 2 under S.302 read with S.109 as well as S.201 read with S.109; and accused No. 3 was charged under S.302 read with S.34 and under S.201. The case against them (Sessions Case No. 1 of 1958) was tried before the learned Sessions Judge at Trivandrum. The learned Judge convicted accused No. 1 both under S.302 and 201 of the Indian Penal Code. The sentence of death was passed by him against accused No. 1 under S.302 and no separate sentence was imposed under S.201. Accused Nos. 2 and 3 were acquitted of all the offences charged and were ordered to be set at liberty. Accused No. 1 appealed to the High Court at Kerala (No. 88 of 1958) against his conviction and sentence while the learned Sessions Judge had submitted for confirmation the sentence of death imposed by him on accused No. 1. The State Government had also appealed against the order of acquittal passed in favour of accused No. 2 (160 of 1958) & accused No. 3 (161 of 1958). Sankaran and Ramam Nair, JJ., who heard these appeals agreed that the case against accused No. 1 had been proved beyond a reasonable doubt, and that the case against accused No. 3 had not been proved beyond a reasonable doubt. In the result the appeal preferred by accused No. 1 as well as the appeal preferred by the State against accused No. 3 were dismissed. In regard to the appeal preferred by the State against accused No. 2 the learned Judges differed. Raman Nair, J. took the view that the case against accused No. 2 had not been proved beyond a reasonable doubt, and so there was no justification for interfering with the order of acquittal passed in his favour by the learned Sessions Judge. Sankaran, J., on the other hand, held that the case against accused No. 2 had been proved beyond a reasonable doubt, and so he was inclined to allow the appeal of the State against the order of acquittal passed in favour of accused No. 2. As the result of this difference of opinion the Stateï¿ 1/2s appeal against accused No. 2 was laid before Koshi, C. J. under S.429 of the Code of Criminal Procedure. The learned Chief Justice agreed with the view of Sankaran, J., with the result that the Stateï¿ 1/2s appeal against accused No. 2 was allowed and he was convicted under S.302 read with S.109 and sentenced to death. It is against this order of conviction and sentence that accused No. 2 has preferred Criminal Appeal No. 9 of 1959. Accused No. 1 has also filed by special leave Criminal Appeal No. 52 of 1959 against the order of conviction and sentence passed by the High Court in his appeal before it.
(2.) IT is common ground that there is no direct evidence against either of the accused persons and the case against them stands wholly on circumstantial evidence. It is hardly necessary to add that the principle governing the appreciation of circumstantial evidence in criminal trials is well settled. Circumstantial evidence can form the basis of conviction only if it leads to an irresistible inference of guilt of the accused and is wholly inconsistent with his innocence. It is in the light of this principle that the points raised by both the appellants would have to be considered by us. There is, however, one material difference between the two appeals, and that must be stated at the very outset. Accused No. 2 has come to this Court under Art.134 (1) (a). The order of acquittal passed against him by the trial Judge has been reversed on appeal and he has been sentenced to death. In such a case the appellant is entitled to challenge the correctness of the propriety of the findings of fact, and in that sense the scope of enquiry in his appeal is naturally wider. Accused No. 1, on the other hand, has appealed to us by special leave under Art.136 of the Constitution, and it is well settled that in appeals under Art, 136 this court generally does not interfere with the concurrent findings of fact. The appeal preferred by accused No. 1 would, therefore, have to be limited to questions of law which may arise on the findings recorded against him by the courts below. Since the evidence against both the accused is circumstantial, it is necessary to set out the material facts on which the prosecution relies in some detail. The deceased and the second accused were married about ten years ago and had three children; all of them were going to school, the youngest to a nursery school just opposite the Pattom House, and the elder two to a different school at some distance. The mother of the deceased, Pw. 2, was living in Pazhavamgadi about 2 1/2 miles away. The second accused was a P. W. contractor and he also ran a lodging house called ï¿ 1/2The Modern Tourist Lodgeï¿ 1/2. It was his practice to leave home for work at about 9 in the morning and return home at about 9 in the night. Accused No. 1 had been engaged by accused No. 2 as a domestic servant about nine months before the date of the offence. He used to live in the house. A maid-servant, Pw. 30, had also been engaged but she was away on leave from August 2, 1957.
(3.) THE deceased was last seen alive between 1.45 P.M. and 2 P.M. on the date of the offence which was a Monday. She was seen in or about her house. About 10 A. M. on Wednesday, August 7, 1957, her body was found lying buried though partly exposed behind the cow-shed in the south - western corner of the compound of the house of accused No. 2. The prosecution case was that the deceased had been murdered by accused No. 1 with the help of accused No. 3 at the instigation of accused No. 2 and that her dead body had been buried by accused Nos. 1 and 3. That is how all the three accused persons were charged with the offences already indicated.;