Supreme Court of India
M.A. ANTONY @ ANTAPPANversusSTATE OF KERALA
- Citation
- 2009 INSC 588
- Decided
- 22 April 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The conviction and death sentence were upheld as the circumstantial evidence and confessional statements satisfied the legal standards of proof.
Summary
The appellant, M.A. Antony, was convicted of murdering six members of a family in Kerala and sentenced to death, along with other imprisonments, based largely on circumstantial evidence. The prosecution relied on motive, the appellant's presence at the crime scene, forensic evidence such as fingerprints and scalp hair, and both judicial and extra‑judicial confessions. The defence challenged the sufficiency of the circumstantial chain, the admissibility of the confessions under Section 164(2) of the CrPC, and alleged procedural lapses in the recovery of evidence under Section 27 of the Evidence Act. The Supreme Court examined each circumstance, held that the chain was complete beyond reasonable doubt, and found that the confessional statements were made voluntarily with all statutory safeguards observed. Consequently, the Court upheld the conviction and the death sentence, dismissing the appeal.
Issues considered
- The adequacy of the circumstantial evidence to sustain conviction under Sections 302, 449, 380 and 201 IPC.
- The admissibility and voluntariness of the judicial confession recorded under Section 164(2) CrPC.
- The validity of the recovery of clothing and other items under Section 27 of the Evidence Act.
- Whether a motive for the murders was established beyond reasonable doubt.
- Whether procedural irregularities in recording the confession or handling forensic evidence invalidate the prosecution's case.
Legislation cited
- Code of Criminal Procedure, 1973s. 164(2), s. 313, s. 463
- Indian Evidence Act, 1872s. 27, s. 27F
- Indian Penal Code, 1860s. 201, s. 302, s. 380, s. 449
Subjects
circumstantial evidenceconfessionSection 164 CrPCdeath penaltymotiveforensic evidencefingerprinthair evidenceIndian Penal Codecriminal appeal
Judgment
[2009) 6 S.C.R. 829
•
- M.A. ANTONY @ ANTAPPAN
vs,
STATE OF KERALA
A
(Criminal Appeal No. 811 of 2009)
APRIL 22, 2009
8
[DR. ARIJIT PASAYAT AND LOKESHWAR SINGH
PANTA, JJ.]
Penal Code, 1860 - ss. 302, 449, 1 380 and 201 -
Prosecution - Based on circumstantial evidence - Conviction c
by courts below and award of death sentence - On appeal,
'7' held: Conviction and sentence justified - Circumstances viz.
motive, presence of accused at the site of offence recovery
u/s. 27 of Evidence Act, recovery of scalp hair of accused, his
judicial as well as extra-judicial confession, proved - D
Confessional statement of the accused was made freely and
voluntarily in compliance with the provisions of s. 164(2) CrPC
- Code of Criminal Procedure, 1973 - s. 164(2).
Appellant-accused was prosecuted for causing
E
death of six members of a family. The case was based
- \.
on circumstantial evidence. The circumstances relied on
by the prosecution were (1) Motive (2) Presence of
accused at the site of offence on the date of occurrence;
(3) Absence of the accused from his residence in the night
of the date of occurrence; (4) Recovery of clothes u/s 27 F
of Evidence Act; (5) Fingerprints of the accused found
from the house of the deceased; (6) Recovery of scalp
hair of the accused; (7) His judicial as well as extra-
-
"" +
judicial confession. Trial court convicted the accused u/
ss. 302, 449, 380 and 201 IPC and sentenced him to death. G
Conviction and sentence was confirmed by High Court.
Hence the present appeal.
Dismissing the appeal, the Court
829 H
830 SUPREME COURT REPORTS [2009) 6 S.C.R.
;
A HELD: 1.1 The appellant was in dire need of money
as established by the testimony of PW-67. He knew that
his visa had come and that a large amount of money was
required. He had also tried to arrange for loan as per the
statement of PW-19. From the statement of PW-23 and
B PW-24 (the creditors of the accused to whom he paid
back his debt), the factum of payment of debt money is
clearly proved. The accused/appellant who was in need
of !110ney and who did not have money, had SL!rplus
amount of money to repay his debts and make payments
c to PW-67 and also to pay for his ticket fare and other
expenses. PW-23 had not demanded his money, yet the
appellant chose to liquidate his debt which clearly shows
an intention on the part of the appellant to do away with
ill-gotten money. [Para 11) [848-F-H; 849-A-B]
D 1.2. According to accused, in the house of the
deceased, a large amount of cash and jewellery was
available which could have been taken away by him. The
plea has been found to be incorrect by the courts below.
Trial Court has adverted to the fact that the jewellery and
E cash were lying in hidden condition and thus knowledge
of its existence cannot be attributed to the appellant.
[Para 12) [849-C-D]
1.3. At the stage of recording of statement under f ..._
F Section 313 CrPC the accused had come with another
explanation that one of the deceased had paid him Rs.35
0001-. No evidence at all has been adduced to show that
he was present in the shop of the deceased and had
been given the said amount. Furthermore, even PW-19
(wife of the appellant) has not stated that she was told at
G ~ r
any stage by her husband that he had received an 4
amount of Rs.35,000/- from the deceased The trial Court
and the High Court both have disbelieved it. [Para 13)
[849-E-F]
H 2.1. PW-38 saw the accused/appellant entering the
M.A. ANTONY@ ANTAPPAN v. STATE OF KERALA 831
• house at 7.00 p.m. on the day of occurrence i.e. on A
6.1.2001. His presence inside the house is also supported
· by other factors, namely: (i) presence of his fingerprints
(PW-6 and PW-7); (ii) presence of hair on deceased's
body (PW-51, PW-53 and PW-61); and (iii) absence of
accused/appellant from his house. (PW-19). [Para 15) B
(849-G-H; 850-A-B]
. 2.2. PW-17 saw the appellant at 5.45 a.m. on 7.1.2001
coming out from the house of the deceased. The
evidence has been believed by both the courts and the
cross-examination has not discredited the testimony. It c
is the admitted case of the parties. PW-19 wife of the
accused as well. as the accused/appellant himself has
admitted his absence from, his own house. [Para 16 and
17] (850-B-D]
D
2.3. The theatrical explanation given by the appellant
that he was going to a place nearly 35 kms away, the auto
driver tried to snatch his money and he ran and stayed
at a dilapidated house for the whole night has been
rightly rejected by the courts below. If he was at the place E
mentioned which is admittedly 35 kms away from the
place of occurrence, he could not have' been seen on the
early hours i.e. 5.45 a.m. on 7.1.2001 at the place of
\ occurrence. (Para 18) (850-D-E)
3. PW-59 10 supports the factum of statement u/s. 27 F
of Evidence Act. The recovery has been witnessed by
PW-68 and PW-72. Further, the 10 from the CBI, PW-77
has also supported the recoveries and statement u/s. 27.
The attempt of the defence to discredit the recoveries on
the basis of answer given by PW-77 to a question relating G
'
/ + to investigation where he had stated that from
investigation it was revealed that only Handkerchief and
Socks had been recovered, ignores the fact that earlier
the investigation had been conducted by PW-59 and the
said question was with respect to investigation and not H
832 SUPREME COURT REPORTS [2009] 6 S.C.R.
.A the factum of actual recovery which has been supported
by PW-68 and PW-73. [Paras 19 and 20] [850-F-H; 851-A]
4. PW-6 the photographer had lifted the fingerprints
and PW-7 the fingerprint expert had matched them. The
defence has not seriously denied it, but has tried to
B
explain it by saying that he was a frequent visitor. [Para
21) (851-A-B)
5.1. PW-51-Sub-lnspector recovered the hair and later
the containers containing the hair were sealed in a
c separate packet. PW-53 has examined the hair recovered
with the sample hair and has matched it. PW-60 the doctor
had collected the sample. [Para 22) [851-8-C)
5.2. The evidence on record clearly shows that the
D hair was kept in different containers and these containers
were later on sealed in a packet. The containers
themselves were not sealed. But since they were kept in
a sealed packet, there was no possibility of any
tampering. [Para 23) [851-D]
E 6.1. The confessional statement has been supported
by PW-65, the Metropolitan Magistrate. PW-77, 10 has
categorically mentioned that the appellant wanted to
confess outside the State of Kerala. The defence assailed
the same on the following grounds: (i) It was a result of
F torture and was retracted. (ii) There is non-compliance of
Sections 164(4) and 164(2) CrPC. (iii) Local Magistrate was
not informed. None of the above submissions are tenable.
Confession was not retracted except at the stage of
statement u/s. 313 CrPC. No complaint of torture has
G been made to the Magistrate, nor the torture has been
suggested in the cross-examination either to PW-59 or
PW-77. [Paras 24 and 25) [851-E-H; 852-A]
•
~ 6.2. All necessary precautions required u/s.164(2)
Cr.P.C. have been taken by the Magistrate as before
H
M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA 833
~
recording the confession, she has given time to the A
accused-appellant to reflect. Secondly, she has also
warned the accused about anything said by him in the
evidence could be later on used against him and that he
was not bound to give evidence. The submission of the
defence that the word used by the Magistrate was B
evidence' instead of 'confession' and therefore, there
was non-compliance of Section 164(2) is hyper-technical.
The Magistrate has recorded in the statement that she has
given the statutory warning and the statutory advice that
he was not bound to make the statement. Section 463 c
Cr.P.C. has rightly been applied in the case. There has
been full compliance of provisions of Section 164(2) and
the confessional statement made freely and voluntarily by
accused on bail cannot be rejected merely because the
Magistrate has used the expression 'evidence' instead of D
',
confession' while warning the accused. [Paras 26 and
28] [852-B-C; H; 853-A]
State of UP v. Singhara Singh AIR 1964 SC 358, referred
to.
E
6.3. The appellant was released on bail on 25.1.2002
and he has given the confessional statement on
9.10.2002. Thus, when he had given the confessional
~ statement, he was a free man. Further, the accused in his
statement u/s. 313 CrPC or during the cross-examination, F
has not suggested that the statement recorded by PW-
65 U/s. 164 was false. [Para 29] [853-B-C]
7. PW-60, the Doctor has supported the case of extra-
judicial confession (Ext. P-48) which records the history
of injury and also records the said confession. The G
statement made by PW 60, the independent witness has
been accepted by both the courts below. In her
examination-in-chief, she has stated that, she had
examined the accused as per the request of Dy.S.P.
There is no material to show that the said Dy. S.P. (PW- H
834 SUPREME COURT REPORTS [2009) 6 S.C.R.
A 59) was present at the time when the statement was
recorded. Dy. S.P .(PW59) does not state that he had
accompanied the accused to Doctor's house. Secondly,
there is no material on record nor is there any suggestion
made to PW-60 that when she had recorded the said
B confessional statement, any police pers·on was present
with the accused-appellant. Thus, the criticism of the
defence that the said statement is not fit to be accepted
as it has-been recorded in the pre~ence of the police
officers is without any material on record. [Para 30] (853-
C D-F]
Case Law Reference:
AIR 1964 SC 358 · Referred to. Para 27
D CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 811 of 2009.
From the Judgment & Order dated 18.09.2006 of the High
Court of Kerala at Ernakulam in Death Sentence Ref. No. 5 of
2005 and Criminal Appeal No. 385 of 2005.
E
K.V. Vishwanathan, M. Gireesh Kumar, Rajeev
Nambeesan, B. Raghunath and Khwairakpam Nobin Singh for
the Appellants.
I
Amarendra Sharan, ASG, R. Sathish, Amit Anand Tiwari,
F P. Parmeswaran for the Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
G 2. Challenge in this appeal is to the judgment of a Division
Bench of the Kerala High Court upholding the conviction of the
appellant for offences punishable under Sections 449, 379, 380,
302 and 201 of the Indian Penal Code, 1860 (in short the 'IPC').
Appellant was sentenced to death for the offence relatable to
H Section 302 IPC, life imprisonment, 7 years imprisonment, 7
M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA 835
[DR. ARIJIT PASAYAT, J.]
years imprisonment for the offence relatable to Section 449, A
380 and 201 respectively. No separate sentence was imposed
for the offence relatable to Section 379 IPC. For confirmation
of the death sentence reference was made to the High Court
under Section 366 (1) of the Code of Criminal Procedure, 1973
(in short the 'Code'). The appellant also preferred an appeal B
and by the impugned judgment, both the Death Reference and
Criminal Appeal were disposed of.
3. The accu·sations in essence against the appellant are
as follows:
c
On the intervening night of 6th and 7th January, 2001, when
inmates of Aluva Municipal Town of Ernakulam District in the
State 'of Kerala were in deep sleep, Manjooran House located
in the midst of the town became a scene of ghastly crime. Six
members of one family in the Manjooran House lost their lives D
in a matter of three hours, Antony @ Antappan, the appellant
'
herein, in search of greener pastures abroad for which purpose
he needed money but was refused to be paid by the members
of the Manjooran family, and therefore as per the prosecution's
version used knife, axe, amd electrocuted and strangulated E
Kochurani and Clara at about 10 in the night.of 6.1.2001 and
Augustine, his wife Mary, and their children - Oivya and Jesmon
at midnight. The Manjooran House full of life at 10 in the night
by the stroke of midnight became a graveyard. The appellant
after causing the death of Kochurani and Clara is said to have F
waited for the arrival of other four members of the family who
had gone to see a film show. On their arrival he turned them
into corpses. He waited for their arrival to kill them as he knew
that for the two murders committed earlier by him he would be
- '
suspected by them, as he was in the house when they left the G
house for the film show. The prosecution alleges that all these
murders were cold blooded, planned and executed with
precision and the appellant ensured that there is no trace of
life left in them before he left the scene of occurrence. When
put to trial for murders, appellant, however, pleaded innocence H
836 SUPREME COURT REPORTS [20091 6 S.C.R.
A and claimed trial.
4. The trial Court as noted above found the accused guilty.
5. Law was set into motion in the following manner:
B Joseph @ Rajan on 7 .1.2001 at 11.30 p.m. gave
information to the Aluva Police Station of Ernakulam District
that his sister, brother-in-law and their children were murdered
by someone at sometime between.6 p.m. on 6.1.2001and10
p.m. on 7, 1.2001 within Manjooran House, where his brother-
C in-law Augustine @ Baby, sister Mary @ Baby, children
Divyamol and Jesmon, brother-in-law's sister Rani (Kochurani)
and mother Rahel were living as a family. He requested for
action in the matter. In the first information, Ext.P1, got recorded
by N.V. John, Sub Inspector of Police. The informant Joseph
0 stated that he had come to inform that someone had killed his
sister-Mary, brother in law-Augustine and their children-
Divyamol and Jesmon in their residence at Aluva. He belongs
to Christian community and is residing with his father, mother,
wife and children. It was stated by him that he was running a
E stationery store there and his sister Mary was married to
Augustine of Manjooran House. His brother in law was running
a hardware shop at Aluva. Both the children were school going.
On 6.1.2001, his sister had come home to take his father who
was sick to the hospital. His sister told him that she would come
on 7.1.2001 by 9.30 a.m. to stay with them, as his wife was
F going to her house. On Saturday morning his wife went to her
home. At that time, his sister Lizy, was in the house. Baby
wanted to come as Lizy had to go to her house. Since his sister
was not seen even after 10 O'clock, he tried to contact her over
phone. Though the phone was ringing, nobody picked it up.
G Around 2 p.m. he telephoned Jose at Neerikode and asked him
to enquire as nobody was answering the phone at his sister's
residence. After some time Jose informed over phone that
-
when he sent the son of his elder brother Jose to his sister's
residence, the house was found locked without anyone being
H there and also their vehicle was not seen. As she wanted to
M.A. ANTONY@ ANTAPPAN v. STATE OF KERALA 837
[DR. ARIJIT PASAYAT, J.]
participate in a function in connection with Christu Jayanthi A
2000, thinking that she would have gone for that, they waited
till 8 p.m. and thereafter again contacted Jose over phone and
requested him to enquire again. After sometime, Jose called
back and told that Sebastian informed him that both his sister
and brother-in-law were not seen. To know about their B
whereabouts, he along with his brother-in-law Sunny, came to
the house of his sister around 10 p.m. The vehicle was available
in the courfyard. There was no light in the verandah. Then he .
entered the sit-out and lifted the curtain to knock the door, and
he saw one of the doors kept open. When he lighted the torch, c
immediately he saw the legs of Jesmon, son of his sister. He
was lying on the floor. There were blood stains near his body.
·In the adjacent room, he saw the legs of Divyamol; who was
lying on her chest down; his sister in a sitting posture with her
head down and adjacent to that his brother-in-law, lying on his 0
back. There was no response when he called. They appeared
to be dead. Immediately, they came out of the house and went
to the house of Jose, his cousin and informed him. Jose called
Robin and they all went in Robin's car to the station. Apart from
his sister, brother-in-law and their children, his brother in law's
mother and sister were also staying with them. He did not know E
what had happened to them. They were not seen there. The
dresses of his brother in law, sister and their children were
those they used to wear while going out. There was no financial
liabilities on his brother-in-law. When his brother in law laid the
foundation for constructing a new house, he had a case with F
his family and as per his sister, they were expecting its judgment
in the near future. His brother-in-law and his elder brothers had
a dispute with regard to their property. He was not aware of
any enemies from outside of his brother-in-law. The morning
newspaper and milk were lying on the verandah of the house. G
The incident occurred between 6 p.m. of 6.1.2001 and 10 p.m.
of 7.1.2001.
From the statement made by the informant, it appears that
the murder of the six persons was noticed for the first time H
838 SUPREME COURT REPORTS [2009) 6 S.C.R.
A around 9 p.m. to 10 p.m. on 7.1.2001 and the matter was
reported to the police at 11.30 p.m. on the same day.
As there was no direct evidence the prosecution relied on
circumstances to fasten the guilt on the accused. Accordingly,
the conviction was recorded. The High Court confirmed the
8
conviction and sentence imposed.
7. In support of the appeal, learned counsel for the
appellant submitted that this being a case of circumstantial
evidence the prosecution was required to show that the chain
c of circumstances was so complete that they excluded even the
remote possibility of any other person being the author of the
crime. It is submitted that there are many missing links and the
explanation offered by the appellant has not been considered
in the proper perspective.
D
8. Learned counsel for the respondent-State on the other
hand supported the judgment of the High Court.
9. It is to be noted that the following were the factors which
were pressed into service by the prosecution.
E
(a) Motive;
(b) Presence of accused/appellant on 6.1.2001;
(c) Presence at the place of occurrence in the early
F hours of 7.1.2001;
(d) Absence from residence on the night of 6-7
January, 2001;
(e) Recovery of clothes under Section 27 of the Indian
G ,_
Evidence Act, 1872 (in short the 'Evidence Act');
(f) Fingerprints;
(g) Recovery of Scalp hair of the accused/appellant;
H
M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA 839
[DR. ARIJIT PASAYAT, J.]
(h) Judicial Confession; A
(i) Extra-Judicial Confession
10. Stand of the accused-appellant is essentially as
follows:
B
(a) Line of investigation not pursued deliberately
by the police and leads missed by the police -
) which would have shown innocence of the
appellant:
The records of the case disclosed that at the very outset
c
there are no circumstances which clearly showed that the
accused was involved in the crime. However, this line of
investigation was not pursued by the investigating agency. For
some strange reason they wanted to show that the case had
been solved and the appellant has been made a scapegoat in D
the process.
(b) Presence of spermatozoa in the pubic hair and
vaginal swab of Kochurani:
E
It has come in evidence of PW-53 that human
spermatozoa was detected in the pubic hair and vaginal swab.
These swabs were subjected to DNA test after taking the blood
samples of the appellant. Ext. 90 dated 27.12.2002 completely
absolved the appellant as being a source of the male DNA.
F
The Inquest report prepared on the body of Kochurani
stated that her skirt was rolled up and white fluid was found on
the private parts. It was a fresh intercourse. When pursuing the
line of investigation the prosecution attempts to explain it away
by saying that it could be an old consensual intercourse G.
forgetting that if it was an old intercourse, stains would not be
available in the pubic hair after so many days.
The other line of investigation deliberately not pursued is
the presence of blood stained foot prints atleast 10 in number H
840 SUPREME COURT REPORTS [2009] 6 S.C.R.
A inside the house. It is sought to be argued by the prosecution
that the footprints were not clear enough for arriving at any
conclusion. In fact to get over this aspect they claim that the
accused was wearing socks and also show as if socks was
recovered. It is an absolutely false story of the prosecution in
s order to cover up their conduct of not pursuing the footprint
theory.
Further, in this case the weapons used were axe, two
knives, a chopper and' a double knife. No finger print is sought
to be lifted from any of these weapons and sent for
C comparison. The prosecution claims that nine finger prints were
lifted from the house of which they say five were not clear for
compariSOIJ, two remained untallied and of the remaining two
are tallied with PW-14 Tintu Joseph, a nephew of Augustine and
the other tallied with accused appellant. As to why no finger
D prints were lifted from the weapons and as to whose finger
prints were present in such large number has not at all been
pursued by the prosecution.
Most importantly, according to the prosecution the finger
E prints on the door post which tallied with the accused had blood
stain. However, according to the expert, from the blood stains
it was not possible to decipher as to the group of the blood
stain.
Another important circumstance is the so called pledge of
F two chains and one anklet of the deceased by PW-74 Suresh
in the shop of T.V. Gangadharan (PW-25). The police set up a
case that the accused had entrusted the jewellery to Suresh on
9.1.2001 at Bombay and that Suresh came to Kerala on
16.1.2001 and pledged the jewellery on 31.1.2001 when he had
G full knowledge that the appellant was suspected for the
commission of offence. Police to support it marked Ext.P-22
through PW-25. Ext.P-22 was a pledge register
contemporaneously seized on 20.2.2001 from the shop of PW-
25. However PW-25 confessed that the regish~r was
H subsequently got written and was recovered two months after.
M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA 841
[DR. ARIJIT PASAYAT, J.]
What was recovered on the day of seizure was the pledge bond A
and the token. Abraham Cherian (PW-59) the Investigating
Officer admits that the bonds were recovered but that was not
produced in court. By the impugned order, the High Court has
disbelieved recovery of ornaments, namely two chains and one
anklet. However, what is surprising is if the police did not B
actually recover, did they pursue the line of investigation against
Suresh (PW-74) and if not, why not? There are several other
concoction and embellishment resorted to by t'1e police for
reasons best known to them.
(c) Recovery of finger print of the accused from the
c
house.- M.T. Jose (PW-14), own brother of Augustine states
that accused is brother by relation wit~ Augustine who used to
frequently visit the house of Augustine and also house of Jose,
the witness and that the accused had full freedom in the
'tharavad' since mother had son-like relation with him. Similarly, D
MT George ( PW-15), another brother of deceased Augustine
also states that the accused used to regularly visit Augustine's
house. In view of this assuming that the finger prints of the door
step tallied with that of accused just as PW-14, Tintu Joseph's
finger print also tallied this is no circumstance against the E
appellant, the appellant admittedly being a frequent visitor.
The finger print was tallied by K. Yogendra Sakhya (PW-
7) and the report was marked as Ext.P-11. The report reveals
that the comparison of the finger print was done with the finger F
print of the arrest slip. Apart from that this report says that there
were 7 other finger prints, five of which were unclear and two
could not be tallied. This shows that there were strangers who
entered the premises for commission of offence. Further, the
- "'
report does not disclose the age of the finger print of the
accused. Accused admittedly visited the house several times
and definitely on 5.1.2001 and 6.1.2001 he had visited the
G
house. Secondly, the specimen finger print ought to have been
taken before the Judicial Magistrate as per identification of
Prisoners Act and this procedure having not been followed, no H
842 SUPREME COURT REPORTS [2009] 6 S.C.R.
A reliance can be placed on this circumstance as held by this
-
'
Court in Mohd. Aman and Anr. v. State of Rajasthan (1997(10)
sec 44).
Thirdly, the blood group of the so called finger prints
8 specimen could not be detected and particularly the group could
not be found as is clear from Ex.P-39. No reason is given.
Hence, finger print is not a circumstance and cannot form a
basis or link in the chain of circumstances.
(d) Recovery of hair:
c
Parameswaran Nair (PW-53) states in the report Ex.0-12
prepared by him that one black hair was located by him on the
body of Jesmon, that he entrusted it to the Investigating Officer,
that he did not seal it, that it was a scalp hair and a pulled out
0 hair. What is significant is that no information about the unsealed
hair allegedly recovered on 8.1.2001 nor the recovered item
were sent to the Court earlier to the examination of the accused
by police i.e. it was not sent till atleast 18.2.2001. Nowhere it
was mentioned about the actual date of sending of the said
E information. This was adversely commented by the High Court
while ordering a CBI investigation. What is important is in the
report Ex.P-36 of PW-53 it is seen that when it was forwarded
by the Judicial First Class Magistrate it had the seal of Judicial
First Class Magistrate but that packet contained two unsealed
packets which were the hairs (there is a contradiction as to
F whether one hair was seized or three hairs were seized from
the body of Jesmon but keeping that aside for the time being)
allegedly recovered from the body of Jesmon. What is important
to note is PW-53 says he did not seal it and what went from
the Court was an unsealed packet put inside a sealed packet
G of the Court. What is important to note is it is not clear as to -
whether what was sent for examination or what was seized.
This coupled with the fact that contemporaneous report was not
made to the Judicial First Class Magistrate on 8.1.2001 throws
a serious doubt as to what was sent to the Magistrate was what
H was really seized or was it something else. It appears that after
M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA 843
' [DR. ARIJIT PASAYAT, J.]
.. the accused was examined then only a report was made. There A
... again Anita Kumar (PW-60) states that she cut the hair of the
accused and sent for chemical examination. A perusal of Ext.P-
36 shows that this specimen hair was in closed bottle which
was kept in a plastic container. There is no evidence of sealing.
PW-60 says she did not state in Ex.P-48 that she sealed the B
pack but she kept the hair in a glass bottle and after sealing it
handed it over to the Investigating Officer. Ex.P-36 does not say
that the specimen bottle was sealed. It was just a closed bottle
kept in a plastic container. What is significant to note in Ex.P-
36 it is mentioned that both the specimen hair and the seized c
hair had roots. PW-60 says that she cut the hair and while
cutting there would not be roots. The fact that the seized hairs
were not sealed, the fact that the.specimen hair was not sealed
and most importantly the fact that the seized hair on 8.1.2001
and forwarded only after questioning accused i.e. on or after
D
18.2.2001 throws a serious suspicion on the prosecution story
and it cannot for a basis or a link in the circumstance against
the appellant. PW-51 who prepared Ex.P-3 inquest of Jesmon
has admitted in cross examination that the hairs recovered from
the dead body were sealed then and there and taken to the
police station. But admittedly those sealed hairs were seen E
unsealed when it reached in the hands of PW-53 as is clear
from the report. If PW-51 sealed it how they are unsealed is a
question which the prosecution has not answered.
(e) Recovery of the so called pant shirt, kerchief F
and socks:
This theory of recovery is completely bogus. According to
the prosecution the accused after the incident went in the early
morning to his house and without the knowledge of wife
... G
changed the clothes, deposited them in a plastic kit and after
depositing it in the compound from where they were recovered
came back to the house. What is crucial is CBI investigating
officer (PW-77) says that only the handkerchief and socks were
thrown by the accused. Apart from this, the recovery witnessed
H
844 SUPREME COURT REPORTS [20091 6 S.C.R.
A by PW-68 and PW-73 contradict each other in material
particular. While PW-68 says that four items were recovered
and that time accused was sitting in the jeep, that blood was
-
seen in the kerchief and no any other items, PW-73 states that
the accused entered the gate and that there were blood stains
B in all the four items. Obviously, police realized that their theory
that the accused came home without knowledge of his wife
would fall flat came forward with a case that only handkerchief
and soc.ks were recovered. In view of these seriou~
contradictions between the police theory and the mahazar
c witnesses no reliance can be placed on the recovery as a
circumstance. Further, if pant and shirt were not recovered how
it was sent for forensic examination to PW-54 whose report
. states that the pant and shirt contained blood of '0'.group. CBI
investigating officer says only socks and handkerchief were
recovered. PW-68 says blood stains only in the handkerchief.
0
PW-73 says that all the cloths had blood stains. PW-73 says /
accused took out the items while PW-68 says accused was
sitting in the jeep. If PW-68 has come after the items were taken
out then he is not a recovery witness. If actually handkerchief
and socks were recovered what has been sent to forensic lab
E is something which has not been seized. There is a serious
attempt by the prosecution to falsely show recovery of blood
stained clothes to implicate the appellant. PWs 15, 16 and 17
saw the accused in the morning. They introduced the theory that •
the accused changing the clothes without the knowledge of wife
F PW-19. All these throw serious suspicion on the theory of
recovery from a public place 45 days after the incident.
Moreover, the recovery itself was organized as a big show that
500 people having gathered there. The police are supposed
to have made a theater show by showing clothes from the
G recovery place. All these show that it was a stage managed ..
recovery on which basis no circumstance and conviction can
be imposed on the appellant.
PW-19 who is the wife of the accused states that the
H accused came in the morning on 7.1.2001 wearing a pant and
M.A. ANTONY@ ANTAPPAN v. STATE OF KERALA 845
[DR. ARIJIT PASAYAT, J.]
shirt. She did not speak of any blood stain. A
The so called motive for the offence is that the accused
was in need of money to go to Saudi Arabia and for that
purpose he killed the six members. As explained earlier, the
motive theory stands exploded in view of recovery of large
B
amount of cash and jewellery from the scene of crime as is
spoken to by PW-1 Joseph, PW-45 and Investigating Officer
(PW-59). If the accused had money as motive, he would have
decamped with the booty. Subse·quently PWs 23 and 24
· deposed that accused repaid the loan on the morning of
7.1.2001 in part to Yohannan (PW-23) and promising to send C
balance and in full to Raman Nair (PW-24). When the accused
is a conscientious perso.n who repaid the debts is spoken to
by PW-14 and PW-24. The accused own case is that on the
evening of 6.1.2001 Augustine gave him Rs.35,000/- so that
he could repay Yohannan and Raman Nair and repay Augustine D
by betting his chitty with DW-1 or after going to Gulf. PW-19
and PW-23 spoke about the accused having told them that the
money was arranged and mentioned "Chettathis house" to PW-
23 and PW-24. It is enough to show that the accused had
returned the money before going abroad. PW-23 only wanted E
a signed stamp paper and unsigned cheque leaf which also .
got on the morning of 6.1.2001 and gave it to him. Accused .
had a running chitty with DW-1 and spoken to by the said
defence witness. It is the accused who having got the money
from Augustine from his shop went and paid to PWs 23 and F
24 and from there with PW-23 came back, went by bus to
Trichur and from there by train to Bombay. In view of this, motive
theory falls to the ground and in the case of circumstantial
evidence the prosecution has come forward with a motive theory
there is an onus on them to prove the same beyond reasonable G
doubt. The prosecution has miserably failed in its endeavor. It
is also to be noted that the final report of CBI is not in conformity
with that of Crime Branch.
H
846 SUPREME COURT REPORTS [2009] 6 S.C.R.
A (f) Evidence of PWs 15, 16 17 saw the accused
near the house of Augustine on 7.1.2001 in the
morning:
The evidence of PWs 15, 16 and 17 has been discarded
by the High Court. PW-17 discloses this fact to the Court on
8
8.4.2003 when her statement was recorded for the first time
as to how the police came to know that she was passing on
the road was not explained. Similarly, PWs 15 and 16 having
not disclosed to the police when they were examinea under
section 161 of the Code. In any case the accused himself came
C back to the house on 7.1.2001 in the morning, no blood stain
was noticed by any of the witnesses. The accused's house is
20 meters away from the house of the deceased. In view of this,
these witnesses have been made to utter falsehood and even
otherwise there is no other statement which establishes that
D merely because the accused was seen he is guilty of committing
the murder.
According to PW-15 when he met the accused in the road
leads to railway station he asked the accused where he was
E going but he has not replied. This version of PW-15 has been
contradicted by his statement recorded under Section 161 of
Code. PW-17 has also stated that on 7.1.2001 at 5.45 a.m.
she saw the accused walking through a road lies in front of the
place of occurrence and leads to railway station. According to
F her she was on the way to Hospital to see the mother of her
mother-in-law. This statement is also contradictory to her
statement given to crime branch. According to her she was
never questioned by the Crime Branch but was questioned by
CBI twice. This is utter falsehood.
G (g) So called extra judicial confession to PW-60 as
recorded in Ex.P-48.
A perusal of Ex.P-48 shows that the so called extra judicial
confession in the wound certificate is in three lines. It purports
H to say the following:
M.A. ANTONY@ ANTAPPAN v. STATE OF KERALA 847
[DR. ARIJIT PASAYAT, J.]
"On 6th January at about 9 O' clock while beating A
Kochurani with a stool certain injury on finger by
contracting with a knife. No objection to take blood and
scalp hair for examination."
This is no extra judicial confession. An extra judicial
8
confession has to be inculpatory and must give substantial
details of the manner of commission. The above two lines
inserted in a document which itself has certain interpolation in
the original. In any event, this is not enough to implicate the
accused. Further the Dy. S.P. was also there at the time of the
said alleged statement and hence the same is not at all C
believable.
(h) So called confession under Section 164 of Code
The accused was arrested on 18.2.2001. He was on illegal D
custody from 9.2.2001 onwards. The matter was first given to
Crime Branch CID on 5.4.2001 whereafter it was transferred
to the CBI on 9.4.2001. This confession under Section 164 of
code is recorded in October, 2002. A perusal of confession
shows that PW-65, Metropolitan Magistrate in the State of Tamil E
Nadu is supposed to have recorded the same. The reason
given by the Investigating agency is that the accused desired
to have the confession recorded in a place outside Kerala. No
request in writing is produced nor the accused is taken to the
concerned court and to state the fact that he wanted to record
the confession outside Kerala was recorded. In fact from F
25.1.2002 the accused was on bail with the condition th.:1t he
will not leave the jurisdiction of Alua. Without obtaining any
relaxation he was taken to Madras and after torture a confession
was recorded in the Metropolitan Magistrate Court, Chennai.
Jayanthi (PW-65) the Magistrate admits that she does not know G
to read and write Malayalam. The translator was produced by
CBI but his name was not mentioned anywhere and he was also
cited as a witness who has not been examined by the
prosecution. It is suggested that accused gave the confession
in Malayalam which was translated by the translator to Tamil and H
848 SUPREME COURT REPORTS [2009) 6 S.C.R.
A the recording was made in Tamil. The confession document
Ex.P-59 was not prepared after following the mandatory
procedures. The accused was not informed that he was not
bound to give the statement and if he gives it will be used
against him. Even in the oral deposition PW-65 only says that
8 she explained to him that he h;; rot bound to give evidence and
later it may go against him. This is not what is contemplated
under Section 164(2) of Code. She should have told him that
he is not bound to make a confession and that the confession
can be used as evidence against him. Further, a Tamil version
C of the confession was translated by PW-76 who says he cannot
read or write Tamil. So appellant has a case where PW-65
cannot read or write Malayalam, PW-76 cannot read or write
Tamil but they can understand Malayalam and Tamil. PW-76
was helped by a subordinate Muthukumar who is not examined.
So the real translators have not been examined, mandatory
D procedure has not been followed, the accused had not legally
been taken outside jurisdiction. When the so called confession
so sought to be relied upon, the accused in his statement filed
under Section 232(2) of Code flatly denied the same. This
confession cannot be used as a substantial evidence against
E the accused. In any case, in the absence of any corroborative
material this is no circumstance against the accused. The
accused has no knowledge of Tamil and he knows only
Malayalam.
F 11. The appellant was in dire need of money as
established by the testimony of PW-67. The Accused/appellant
knew that his visa had come on 23rd December and that a large
amount of money was required before 10th January 2001. He
had also tried to arrange for loan as per the statement of l'W-
G 19. She mentions the amount which he could arrange by 5th
January 2001 and a meager amount of 10,000/- was left with
him. From the statement of Yohannan (PW-23) and
Ramachandran Nair (PW-24), the factum of payment of money
amounting to Rs 35,000/- on 7/1/2001 is clearly proved. The
H accused/appellant who was in need of money and who did not
- M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA 849
[DR. ARIJIT PASAYAT, J.]
.. -'(
have money till 5.1.2001, had surplus amount of money to repay
his debts and make payments to P.I. Ummar (PW-67) and also
A
to pay for his ticket fare and other expenses. In this context, it
' will be worth mentioning that PW-23 had not demanded his
money, yet the accused-appellant chose to liquidate his debt
which clearly shows an intention on the part of the appellant to 8
do away with ill-gotten money.
12. According to accused in the house of the deceased,
a large amount of cash a·nd jewellery was available which could
... have been taken away by the accused/appellant and that he,
c
as a conscientious man, had taken so that he could repay
before his departure. The contention is devoid of any merit and
has been four:id to be incorrect by the courts below. It would be
pertinent to mention here that the trial Court has adverted to
the fact that the jewellery and cash were lying in hidden
condition and thus knowledge of its existence cannot be D
attributed to the accused/appellant.
13. At the stage of recording of statement under Section
313 of the Code, the accused had come with another
explanation that the deceased Augustine had paid him Rs.35 E
0001- at 8.00 p.m. on 6.1.2001. No evidence at all has been
adduced to show that he was present in the shop of Augustine
and had been given the said amount. Furthermore, even PW-
... 19 wife of the accused/appellant has not stated that she was
told at any stage by her husband that he had received an F
amount of Rs.35,000/- from the deceased Augustine. The trial
Court and the High Court both have disbelieved it.
... 14. The analysis of the evidence shows that the accused/
appellant was in dire and urgent need of more and he had a
motive for getting the said amount of money. G
_.
15. PW-38 saw the accused/appellant entering the house
at 7.00 p.m. on 6.1.2001. His presence inside the house is also
supported by other.factors, namely:
H
850 SUPREME COURT REPORTS [2009) 6 S.C.R. >
A (i) presence of his fingerprints (Ref PW-6 and PW-7);
(ii) presence of hair on deceased's body (PW-51, PW-
53 and PW-61); and ~
(iii) absence of accused/appellant from his house. (PW-
B 19).
16. PW-17 saw the accused/appellant at 5.45 a.m. on
7.1.2001 coming out from the house of the deceased. The
evidence has been believed by both the courts and the cross-
C examination has not discredited the testimony.
17. It is the admitted case of the parties. PW-19 wife of
the accused as well as the accused/appellant himself has
admitted his absence from, his own house.
D 18. The theatrical explanation given by the accused/
appellant that he was going to Perumbavoor and at Thottuva,
nearly 35 kms away, the auto driver tried to snatch his money
and he ran and stayed at a dilapidated house for the whole night
has been rightly rejected by the courts below. And if he was at
E Thottuva which is admittedly 35 kms away from the place of
occurrence, he could not have been seen on the early hours
i.e. 5.45 a.m. on 7.1.2001 at the place of occurrence.
19. Abraham Cheriyan (PW-59), 10 supports the factum
F of statement unde; Section 27 of Evidence Act. The recovery
has been witnessed by Ismail (PW-68) and Johny Cyriac (PW-
72). Further, the 10 from the CBI, PW-77 has also supported
the recoveries and statement under Section 27.
20. The attempt of the defence to discredit the recoveries
G on the basis of answer given by G. Venkataraman (PW-77) to
a question relating to investigation where he had stated that
from investigation it was revealed that only Handkerchief and
Socks had been recovered, ignores the fact that earlier the
investigation had been conducted by PW-59 and the said
H question was with respect to investigation and not the factum
M.A. ANTONY@ ANTAPPAN v. STATE OF KERALA 851
[DR. ARIJIT PASAYAT, J.]
of actual recovery which has been supported by PW-68 and A
PW-73.
21. V.O. Jose (PW-6), the photographer had lifted the
fingerprints and PW-7 the fingerprint expert had matched them.
The defence has not seriously denied it, but has tried to explain
it by saying that he was a frequent visitor. 8
22. PW-51-Sub-i'nspector recovered the hair and later the
-containers containing the hair were sealed in a separate
packet. PW-53 has examined the hair recovered with the
sample hair and has matched it. PW-60 Dr. Anila Kumari had C
collected the sample.
23. Much criticism has been made with respect to the
collection of hair about the aspect of sealing. The evidence on
record clearly shows that the hair was kept in different D
containers and these containers were later on sealed in a
packet. The containers themselves were not sealed. But since
they were kept in a sealed packet, there was no possibility of
any tampering.
852 SUPREME COURT REPORTS [2009} 6 S.C.R.
A torture has been suggested in the cross-examination either to •
PW-59 or PW-77
26. All necessary precautions required under Section
164(2) have been taken by the Magistrate as before recording
the confession, she has given time to the accused-appellant to
B reflect. Secondly, she has also warned the accused about
anything said by him in the evidence could be later on used
against him and that he was not bound to give evidence. The
t
submission of the defence that the word used by the Magistrate
was ·evidence' instead of 'confession' and therefore, there was
c non-compliance of Section 164(2) is hyper-technical. The
Magistrate has recorded in the statement that she has given
the statutory warning am;! the statutory advice that he was not
bound to make the statement. Section 463 has rightly been
applied in the case.
D
27. This Court in State of UP v. Singhara Singh (AIR 1964
SC 358) (para 10) explained the scope of the oral evidence
with respect to statements under 164 of Code as can be
adduced under section 533 of Code (now Section 463 of Code)
E in following words:
"What section 533 therefore, does is to permit oral
evidence to be given to prove that the procedure laid down
in section 164 had in fact been followed when the court
finds that the record produced before it does not show that
F that was so. If the oral evidence establishes that the
procedure had been followed, then only can the record be
admitted. Therefore, far from showing that the procedure
laid down in Section 164 is not intended to be obligatory,
-
Section 533 really emphasises that procedure has to be
G followed. The section only permits oral evidence to prove ,_
that the procedure had actually been followed in certain
cases where the record which ought to show that does not
on the face of it do so."
H 28. There has been full compliance of provisions of Section
M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA 853
[DR. ARIJIT PASAYAT, J.]
\;
164(2) and the confessional statement made freely and A
voluntarily by accused on bail cannot be rejected merely
because the Magistrate has used the expression ·evidence'
instead of 'confession' while warning the accused.
29. It would be further pertinent to mention here that the B
accused-appellant was released on bail on 25.1.2002 and he
has given the confessional statement on 9.10.2002. Thus, when
• he had given the confessional statement, he was a free man .
Further, tfle accused in his statement under Section 313 or'
during the cross-examination, has not suggested that the
statement recorded by PW-65 under Section 164 was false.
c
30. PW-60-Dr. Anila Kumari has supported the case of
· extra judicial confession (Ext. P-48) which records the history
of injury and also records the said confession. The statement
made by the independent witness Dr. Anila Kumari has been D
" accepted by both the courts below. In her examination-in-chief,
she has stated that, "I had examined Antony as per the request
of Dy.S.P. of Aluva. There is no material to show that the said
Dy. S.P. (PW-59) was present at the time when the statement
was recorded. Dy. S.P.(PW59) does not state that he had E
accompanied the accused to Doctor's house. Secondly, there
is no material on record nor is there any suggestion made to
PW-60 that when she had recorded the said confessional
. statement, any police person was present with the accused-
appellant. Thus, the criticism of the defence that the said F
statement is.not fit to be accepted as it has-been recorded in
the presence of the police officers is without any material on
record.
31. The appellant explanation in respect to the aforesaid
noted is as follows: G
1
Merely on suspicion and relying on the so called
circumstantial evidence, which fall far short of required standard
of proof the prosecution attributes motive to the accused i.e.
he was in nead of money to go to Saudi Arabia and that he H
854 SUPREME COURT REPORTS [2009] 6 S.C.R.
A murdered the deceased for that purpose. The motive there
stands exploded if the evidences of PW 1, Mary Sunny (PW-
45) and investigating officers PW-59 and PW-77 are perused.
PW-1 states that on searching the house apart from savings
bank deposit receipts worth Rs. 45 lakh, gold ornaments worth
s 55 sovereign were recovered from the almirah and currency
notes worth Rs. 1.50 lakh were also recovered from that room
in a brief case. Further, in the next room currency notes worth
Rs, 45,000/- were recovere~ and gold ornaments kept inside
the almirah were recovered. PW 45 another sister of deceased
c Augustine also corroborates this, though she says 95
sovereigns of gold ornaments and cash worth Rs 2.5 lakh were
recovered. The investigating Officer also testifies to the same
effect.
32. The accused denied his involvement in the crime. The
D evidence of the prosecution witnesses namely, PW 14, PW 23,
PW 24 go to show that the accused was a conscientious
person who reed the debts and that out of the new given by
Augustine on 6.1.2001 of Rs 35 000/- he had repaid PW 23
and PW 24. If money was a motive, the accused would have
E decamped with cash and jewellery and such a person will not
be conscientious enough to repay the loan to PWs 23 and 24,
and promised PW 23 that he will settle the balance of Rs. 3000/
- with interest and also not take back the signed stamp paper
and the blank cheque left with PW 23.
F
33. Above being the position, the appeal is without merit,
and deserves dismissal which we direct.
N.J. Appeal dismissed.
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