V. Raja Vijayaraghavan, J.

1. This appeal, filed under Section 374(2) of the Code of Criminal Procedure, is preferred by the sole accused in S.C. No. 547 of 2020 on the file of the Additional Sessions Judge-IV, Kozhikode. In the above case, he was charged for having committed offences punishable under Sections 302 and 201 of the IPC.

2. By the judgment under challenge, the appellant was found guilty of the offences punishable under Section 302 of the IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/- (Rupees fifty thousand only), with a default clause and to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- (Rupees ten thousand only), with a default clause, for the offence punishable under section 201 of IPC.

Prosecution case:

3. The crux of the prosecution allegation is that the appellant was one of the sons of the deceased Reena @ Vaka and Wilson (PW1). According to the prosecution, the appellant on 17.11.2019 at 06:30 P.M., with the intent to kill his mother, due to animosity towards her for not giving him liquor and food, approached her from behind while she was sitting on the step of the kitchen of the house bearing No. 365 in ward No.5 of Chakkittapara Grama Panchayath. It is alleged that using a `Thalappu', made of coir, which is used by the appellant and his father for climbing trees, the appellant strangulated his mother and caused her death. It is further alleged that the appellant, with a view to cause disappearance of evidence, burnt the `Thalappu' by throwing it into the hearth of their house.

Registration of the FIR and initial investigation:

4. Sri. Krishnan (PW5) approached the Sub Inspector of Police, Peruvannamuzhy Police Station (PW33) and lodged Ext.P4 FI Statement. He proceeded to conduct an inquest over the dead body and prepared Ext.P6 Inquest Report. As a ligature mark was noted on the neck of the deceased at the time of preparation of the inquest Ext.P25 report was submitted before the jurisdictional court seeking to incorporate Section 302 of the IPC. The clothes worn by the deceased at the time of inquest were seized and produced before the Court as MOs 1 and 2. Thereafter, the investigation was taken over by PW34, the Inspector of Valayam Police Station. He arrested the accused on 22.11.2019 at 04.00 P.M. as per Ext. P26 Arrest Memo. He proceeded to the spot and prepared Ext.P1 Scene Mahazar. Based on the disclosure statement alleged to have been made by the accused, MO3 pants and some amount of ash were seized from the hearth, in terms of Exts. P2 and P3 mahasars. A forwarding note was sent to the Court for sending the MOs seized for the purpose of chemical analysis. According to PW34, based on the request made by the accused, an application was filed before the Chief Judicial Magistrate Court, Kozhikode, to record the statement of the accused. Consequently, Ext.P32, 164 statement of the accused was recorded. The investigation was then taken over by PW35, the Inspector of Police. After completing the investigation, the final report was laid before the jurisdictional Magistrate.

Committal and trial proceedings:

5. Committal proceedings were initiated, and the case was made over to the Court of Session. The Sessions Court made over the case to the Additional Sessions Judge-IV, Kozhikode. On appearance of the accused, after hearing the prosecution and the defence, charge was framed for offences under Sections 302 and 201 of the IPC. The accused, when the charge was read over, pleaded not guilty and claimed that he be tried.

6. On the side of the prosecution, as many as 36 witnesses were examined, as PWs 1 to 36, and through them Exts.P1 to P38 were exhibited and marked. The material objects were produced and identified as MOs 1 to 7. After the close of prosecution evidence, the incriminating materials arising from the prosecution evidence were put to the accused under Section 313(1)(b) of the Cr.P.C. The accused denied the incriminating circumstances and maintained that he was totally innocent. On the side of the defence, Ext.D1 to D3 were marked. No witness was examined.

Findings of the trial Court:

7. The learned Sessions Judge, after evaluating the entire evidence, came to the conclusion that the statement of the accused recorded by the PW36 Magistrate, wherein he had confessed to the murder, was reliable and the same can be the sole basis of conviction. In addition, the learned Session Judge also placed reliance on the recovery of ash of the burnt `Thalappu' from the hearth of the house of the accused. It is based on the above two pieces of evidence that the learned Sessions Judge has arrived at the finding of guilt.

Submissions of the appellant:

8. Sri. Jayaprasad M.R., the learned counsel appearing for the appellant, submitted that the reliance placed by the learned Session Judge on the 164 Statement, which is marked as Ext.P32, was misplaced. The learned counsel would refer to Ext.P32, and it is submitted that, in addition to murdering his mother, the appellant had even confessed to killing his own brother. In respect of the said confession, Crime No. 189 of 2018 for the Peruvannamuzhy Police Station was registered, and the final report was laid before the jurisdictional Court. The said case was numbered as SC No. 98 of 2021, and the trial was conducted by the Court of Sessions. The learned Sessions Judge, after careful evaluation of the evidence, came to the conclusion that a perusal of the confessional statement would reveal that the alleged confessional statement could not have placed reliance upon. According to the learned counsel, the reliance placed by the learned Sessions Judge on the recovery of ash from the house is also misplaced, and the said evidence alone would not have advanced the case of prosecution. The learned counsel would also submit that the accused had retracted the confession in his 313 statement, and he had also filed a detailed statement narrating the circumstances under which he had made a confession. According to the learned counsel, no reliance ought to have been placed on the same.

Submissions of the Prosecution:

9. The learned Public Prosecutor, on the other hand, refuted the submissions. She has submitted that the learned Magistrate had complied with all the mandatory procedures before recording the confessional statement of the accused, invoking Section 164 of the CrPC. According to the learned Public Prosecutor, the evidence let in by the prosecution by examining the Doctor who conducted the post-mortem, as well as the evidence of the prosecution witnesses, would show in unmistakable terms that it was the accused and the accused alone who had committed murder of his mother. It is submitted that though the accused was acquitted by the learned Session Judge in SC No. 98 of 2021, the said judgment need not be reckoned for assessing the finding of guilt, as in the instant case, the learned Session Judge has arrived at the finding of guilt based on credible materials.

Analysis:

10. We have carefully considered the rival submissions advanced at the Bar and have meticulously perused the entire oral and documentary evidence placed on record.

11. PW1, Wilson, is the husband of the deceased. He stated that he was married to the deceased and that there were five children in the wedlock. One of his sons had earlier committed suicide. Following that incident, the remaining two sons were residing at their uncle’s son's residence, while the daughter was living with her husband. PW1 deposed that his wife expired on a Sunday, though he was unable to recollect the exact date. He stated that on the day of the incident, he went for work and returned home after purchasing meat for cooking. On reaching home, he realised that the necessary spices were not available. in the house and therefore went back to the shop to procure them. Upon returning, he lay down to rest for some time. When he later woke up and called his wife, there was no response. He then went in search of her and found her lying face down in the space in front of the kitchen steps. Initially believing that this might be an episode of vertigo he called her again. When there was no response, he called his son for help; however, despite being present in the house, the son did not respond. PW1 further deposed that he then lifted his wife and placed her inside the kitchen. Thereafter, PW1 asked the appellant to go to the house of Damodaran. Subsequently, Damodaran and his sister arrived at the house. They noticed a mark on the neck of the deceased and informed PW1 of the same. According to PW1, the said mark resembled one that could be caused by a coir rope. He further stated that once in a while the appellant used to quarrel with his wife. The last such quarrel was with respect to the sale of rubber sheets. The deceased had insisted that the appellant take the rubber sheets only with the permission of PW1, which the appellant refused to abide by. PW1 stated that he was a coconut plucker and that he used "thalappu" made of coir for climbing coconut trees. The thalappu was usually kept inside the house. He, however, stated that he was unaware as to how his wife died. During cross-examination, PW1 stated that the mark on the neck was not of much width. He added that the thickness of thalappu was about 15 cm. He stated that funeral ceremonies lasted for 7 days and his near relatives had assembled. The ash would be taken out from the hearth and dumped outside once in two days. After seven days after the death, food used to be cooked in the hearth in the kitchen. He further stated that there was no mark on the back side of the neck. He confirmed that it was he who had sent the appellant to inform Damodaran and his sister and that the appellant accompanied them when they came to the scene. He also stated that, in his view, the death of his wife was not a case of murder. In re-examination, PW1 deposed that the deceased was not suffering from any illness and that she was in sound health when he returned home after purchasing meat.

12.    PW2, Seetha, stated that the deceased was a relative of her husband. On the day of the incident, the appellant came to her house and requested her to come and see his mother. On hearing this, PW2 went to the house where the appellant and the deceased were residing and saw the deceased lying on the floor of the kitchen. She called the deceased by name, but there was no response. She stated that she noticed a mark on the neck of the deceased. PW2 further stated that she enquired with the appellant as to what had happened, but he did not respond and walked towards the courtyard. PW1 was also present at that time and stated that he too did not know what had happened to the deceased. PW2 deposed that the mark on the neck appeared to have been caused by coir. She stated that she did not know the reason for the death of the deceased. She further stated that it was her granddaughter who told her that the mark was caused by tying a coir rope. She identified the nightie and underskirt worn by the deceased at the time of death, which were marked as MO1 and MO2 respectively. During cross-examination, PW2 stated that the mark on the neck appeared to be caused by a string. She further stated that the mark was present only on the lower front portion of the neck and not on the back. She stated that the appellant informed her about the death at around 1.00 p.m. and that he appeared sad while informing her. Towards the end of the cross-examination, she stated that her deposition was based on what was informed to her by the police. In re-examination, PW2 clarified that no police personnel were present when she reached the house of the deceased and that it was at that time she noticed the mark on the neck of the deceased.

13. PW3 is the attestor to Ext. P1 scene mahazar.

14. PW4 is the attestor to Ext. P2 recovery mahazar prepared at the time of recovery of MO3 pant. He is also a witness to Ext. P3 seizure mahazar prepared during the seizure of ash from the hearth. During cross-examination, PW4 stated that a black pant was recovered by the police, whereas MO3 is a jeans pant.

15. PW5, Krishnan, furnished the First Information Statement (Ext. P4) to the police. He is a relative of the deceased, in whose house two sons of the deceased and PW1 were residing. He stated that he came to know about the death of Reena on Monday morning. He stated that he, along with his wife, Kannan, and the two sons of the deceased, went to the house where the deceased was residing with PW1 and the appellant. When they arrived at the house, they found the body of the deceased lying in the kitchen. They shifted the body from the kitchen to a room. PW5 stated that he enquired with the accused as to what had happened, to which the accused replied that the deceased had died by hanging. However, when PW5 further enquired as to where the deceased had committed suicide by hanging, the appellant remained silent. PW5 further deposed that the accused and the deceased frequently quarrelled. He identified the accused in the dock.

16.    PW6, Kannan, is the father of PW5. He was present along with PW5 when they reached the house of the deceased. He stated that one of the brothers of the accused, Anu, had committed suicide and that after that incident, the other two brothers of the accused were residing with PW5 and PW6. He stated that when he enquired with the accused about the death of the deceased, the accused replied that she died by hanging and remained silent when further questions were posed. PW6 stated that he was present when the accused came along with the police and that he was a witness to Ext. P3. He further stated that the police obtained his signature on a paper. He also stated that he witnessed the accused showing MO3 to the police, pursuant to which Ext. P2 was prepared. He identified the accused in Court. However, PW6 did not support the prosecution case regarding the alleged conflicts between the accused and the deceased. The Public Prosecutor was therefore permitted to put leading questions to the witness. PW6 further stated that he had not witnessed any quarrel between the accused and the deceased during his visits to their house.

17. PW7, Sheena, is a Panchayat Member and an attestor to Ext. P6 inquest report. She deposed that she noticed a black-coloured ligature mark on the neck of the deceased. She stated that Anu, the son of the deceased, had committed suicide one year prior to the incident. She further stated that the members residing in the house of the deceased did not venture out very often. She deposed that the family members were alcoholics, and they used to quarrel very often.

18. PW8, Bindhu, is the wife of PW5. She stated that she accompanied her husband to the house of the deceased. She also noticed the mark on the neck of the deceased. She stated in cross-examination that she visited the house of the deceased after the funeral. The accused was found there. She added that the deceased and her husband used to consume alcohol and pick up quarrels.

19. PW9, Joseph, owns a shop at Muthukad and has been running the said shop for the past 36 years. He deposed that PW1 had purchased provisions from his shop on 17.11.2019. According to PW9, PW1 came to his shop at about 6.00 p.m. and purchased provisions. He further stated that PW1 was in an inebriated state and added that Reena died on the following day.

20. PW10, Joseph, is the neighbour of the deceased. He stated that the deceased and the family members used to drink alcohol and pick up quarrels every now and then.

21. PW11 stated that on 16th, he came to know that the deceased had sold rubber sheets in the shop of Jose Thomas. However, during cross-examination, he deposed that he came to know about the said sale through the police and that Jose has not mentioned any sale by the accused. Ext. D1 contradiction was marked while cross-examining him.

22. PW12, Jose Thomas, is also a grocery shop owner. He stated that on 17.11.2019, the accused sold 3 rubber sheets weighing a total of 1.6kg. During cross-examination, he deposed that the accused sold the rubber sheets to him at about 11 in the morning.

23. PW13, Shaju Abraham, is a butcher by profession, and his shop is right across the house of the deceased. He stated that it was on 18th that he came to know about the death of Reena. On the previous day, Wilson, Reena's husband, had come to his shop and purchased 1.5 Kg of pork. When he was cross-examined, he denied having stated to the police that PW1 did not pay him the money for the meat, and that portion was marked as Ext.D2.

24. PW14, Jaseentha, is an Aganawadi teacher. She heard the news about the death of Reena on 18.11.2019, and she went to see the body by 9 in the morning. She found the body lying on the dining table. When she enquired with PW1 about whether it was one of his sons who were murdered, he remained silent.

25. PW15, Suresh Babu, was working as SCPO in the Peruvennamoozhi Police Station. He was attestor to Ext. P7.

26. PW16, Ranjish, was the CPO of the Peruvannamuzhy Police Station who took the sealed cover of the nail clippings and certificate from Dr. Hitesh Kumar and handed over to Inspector A.V John.The copy of the said certificate was marked as Ext.P9.

27. PW17, Nidheesh, is the SCPO of the Peruvannamuzhy Police Station and was present when the photos of the place of incident were taken.The mahazar prepared for the photos is marked as Ext.P10 and the photos were marked as Ext.P11 Series.He is also witness to Ext.P12 mahazar recorded while seizing MO5.

28. PW18, Sreeraj. N. was working as the CPO of Peruvannamuzhy Police Station. He stated that he collected the blood sample of the accused from the Perambra Taluk Hospital. He also collected the certificate and produced it before the Circle Inspector. As per Ext.P13 certificate, the blood group of the accused is O+ve.

29. PW19, Sreevas, is also CPO of Peruvannamuzhy Police Station who stated that on 28.11.2019 at 4 p.m., he was assigned with station duty and that he is attestor to Ext.P14 mahazar prepared by C.I A.V. John.

30. PW21, Reena Kumari, was working as the WSCPO of Peruvannamoozhi Police Station. She stated to have witnessed the preparation of the inquest on 18.11.2019. She identified MO1 and MO2 to be the dress worn by the deceased at the time when the inquest was conducted.

31. PW22, Danesh, is the photographer who took Ext.P16 series photos of the deceased at the time of inquest on 18.11.2019.

32.    PW25 was the Assistant Professor and Assistant Police Surgeon in the Department of Forensic Medicine, Govt. MCH, Kozhikode. She had conducted the post-mortem examination on the body of the deceased. She noted a pressure abrasion, dark-brown in colour, non-continuous, parchmented, non-grooved, having no specific pattern on the upper part of neck, over and above the level of the Thyroid Cartilage, measuring 14 cm against a total neck circumference of 27 cm. It was oblique, coursing upwards from right to left. She also noted abrasions, 3 in numbers, on the under aspect of chin and upper part of right side of neck, arranged obliquely in a line, downwards and outwards. She noted another abrasion on the lower part of the front of neck and an abraded contusion on the back of abdomen. Her opinion as to the cause of death was that "the post-mortem findings were consistent with death due to hanging". The Doctor opined that the manner of death needs to be investigated in the line of homicidal hanging due to the presence of other injuries on the neck.

33. PW27 is Dr. Jithesh Kumar, who collected nail clippings of the accused.

34. PW28 is the Village Officer who prepared Ext.P21 site sketch. PW30 is the Secretary, Chakkittapara Grama Panchayath, who issued the ownership certificate in respect of the house bearing No. V/365. He stated that as per the records, the owner of the house was PW1. PW31 is the Scientific Officer, Regional Forensic Science Lab, who stated that he had issued Ext.P23 Report, which revealed that remnants of burned and particles of burned coir was detected in the sample forwarded to him. PW32 stated that he has employed the accused for climbing arecanut trees. PW33 is the Sub Inspector, Peruvannamuzhy Police Station. He stated that on the basis of information furnished by the informant, Crime No. 340 of 2019 was registered under Section 174 of the Cr.P.C. He prepared the inquest, and on seeing the mark on the neck of the deceased, he entertained suspicion as to the cause of death. The body was sent for post-mortem. He stated that on repeated questioning, the accused disclosed to him the manner in which he had committed the murder. On the basis of the said confession, a report was sent to the Court on 22.11.2019, incorporating Section 302 of the IPC. He stated that the accused was taken into custody on 22.11.2019, and thereafter, the investigation was handed over to the superior police officer.

35.    PW34 is the Inspector of Police, Valayam Police Station. He stated that on 22.11.2019, he took over the investigation and arrested the accused at 4:00 p.m. He went to the place of occurrence and prepared the scene mahazar. Later, on interrogation, the accused is alleged to have disclosed that the thalappu was burned in the hearth, and based on the said disclosure, ash was seized as per Ext.P2 Seizure Mahazar. The clothes worn by the accused were seized as per Ext.P28 Mahazar. He stated that, as per the request made by the accused to give a judicial confession, he was taken to the Court of the CJM, Kozhikode, who recorded the statement of the accused under Section 164 of the Cr.P.C. He collected the sketch of the area, the photographs taken by the photographer and produced it before the Court. The investigation was then taken over by Dhananjayan Babu, who laid the final report before the Court.

36.    PW35 is the officer who laid the final report before the Court. PW36 is the Judicial Magistrate of the First Class-I, Kozhikode, who recorded the Section 164 statement of the accused. He stated that, before recording the statement, he apprised the accused that he was not required to make a confession and that any confession made by him could be used against him. He stated that the accused had voluntarily given his statement. He stated that the accused had disclosed to him the manner in which he had put an end to the life of his mother and how he had burnt the coir used for murdering her. He further stated that the accused had disclosed to him that he had hanged and murdered his younger brother, Anoop. In cross-examination, the Magistrate was asked whether he had asked the accused whether he was brought by the police. In response, he stated that he had enquired with the accused as to who had brought him to the Court. He denied the suggestion that the confession given by the accused was not voluntary.

37.    As is revealed from the evidence let in, the finding of guilt of the appellant is grounded entirely in circumstantial evidence. The circumstances relied on by the learned Sessions Judge to arrive at the finding of guilt are the following:

                  a.       The cause of death of Reena was a case of homicide by strangulation with a coir rope.

                  b.       The appellant had confessed to strangulation and murdering his mother in his confessional statement recorded by PW36, the Judicial Magistrate, which the court found to be true and voluntary.

                  c.       The appellant caused the disappearance of evidence by burning the ‘thalappu” used by the appellant to strangulate and murder the deceased

                  d.       Recovery of the burnt piece of coir in the form of ash on the basis of the confessional statement made by the appellant.

38.    Before proceeding to analyse and assess the circumstances which were relied on by the learned Sessions Judge to arrive at the finding of guilt, it would only be appropriate to refer to the precedents that may provide guidance on the handling and evaluation of cases based on circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra ([1984 SCC (4) 116]) , the Apex Court has laid down five golden principles which constitute the “panchsheel” in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra ([1973 SCC (2) 793]) , it was opined that it is a primary principle that the accused “must be” and not merely “may be” guilty before a Court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The very same principles were reiterated in Padala Veera Reddy V. State of Andhra Pradesh ([AIR 1990 SC 79]

39. In Balwinder Singh v. State of Punjab (AIR 1996 SC 607) , it was observed as follows in paragraph No. 4 of the judgment:

                  “4. … the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.”emphasis supplied)

40. In State of U.P. v. Ashok Kumar Srivastava , it was held that it is the duty of the court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonably capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypothesis that the accused is guilty.

41. In Ram Singh v. Sonia (AIR 2007 SC 1218) , while referring to the settled proof pertaining to circumstantial evidence, this Court reiterated the principles about the caution to be kept in mind by the court. It was observed as follows in paragraph No. 39 of the judgment:

                  “39. … in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.”( emphasis supplied )

42. The first question that arises for consideration is whether the prosecution has succeeded in establishing that the death of Reena was homicidal in nature. It is the case projected by the prosecution that the appellant was not on cordial terms with the deceased, allegedly on account of her failure to provide him food in accordance with his wishes. According to the prosecution, on the date of the incident, while the deceased was seated on the steps leading to the house, the appellant approached her from behind and strangulated her using a thalappu made of coir.

43. PW25, the doctor who conducted the autopsy on the body of the deceased, opined that the post-mortem findings were consistent with death due to hanging. However, she further stated that the manner of death required investigation along the lines of homicidal hanging, in view of the presence of certain injuries on the neck and the attendant circumstances. In other words, the doctor was categorical in her opinion that the injuries found on the neck indicated death by hanging. At the same time, she suggested further investigation to rule out homicidal hanging owing to the presence of additional injuries noted on the body of the deceased.

44. The thalappu allegedly used for strangulation was not shown to PW25, as the prosecution case is that the appellant had destroyed the same by burning it. Only a photograph of the said thalappu was shown to the doctor. She opined that such an object could be used for committing the murder. It is pertinent to note that there exist significant medico-legal distinctions between death caused by hanging and death caused by strangulation.

45. The Hon’ble Apex Court, in State of Rajasthan v. Ramesh (2015 SCC 17 673) has dealt with the subtle distinction between death by hanging and strangulation. It was observed as follows:

                  13.     Hanging is a form of death produced by suspending the body with a ligature around the neck, the constricting force being the weight of the body or a part of the body weight. In other words, hanging is ligature compression of the neck by the weight of one’s body due to suspension.

                  14.     According to Modi’s Medical Jurisprudence and Toxicology (23rd Edition), “the ligature mark depends upon the nature and position of the ligature used and the time for which the body remains suspended after death. If the ligature is soft and the body is cut down from the ligature immediately after death, there may be no mark….”

                  15.     ‘Strangulation’ is defined by Modi as “the compression of the neck by a force other than hanging. The weight of the body has nothing to do with strangulation. Ligature strangulation is a violent form of death which results from constricting the neck by means of a ligature or by any other means without suspending the body. When constriction is produced by pressure of the fingers and palms upon the throat, it is called throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of the elbow or some other solid substance, it is known as mugging (strangle hold).”

46. In the case on hand, though the prosecution alleges that the deceased was strangulated to death, the medical evidence on record predominantly indicates death by hanging. It appears that the prosecution proceeded on the basis of the confessional statement of the appellant and ignored the tell tale signs of death by hanging and projected the case that it was a case of strangulation. The injuries found on the body of the deceased by the doctor supported only a case of hanging, either suicidal or homicidal and not a strangulation of a person sitting on the ground by using a thalappu made of coir. In that view of the matter, we are of the considered view that the prosecution has failed to establish the precise cause of death. There being no mention of strangulation in the post-mortem certificate and as the medical finding runs contrary to the prosecution version, it cannot be held, beyond reasonable doubt, that the death of Reena was homicidal by strangulation.

47. The next circumstance relied upon by the prosecution is the alleged judicial confession said to have been given by the appellant before PW36, the learned Judicial Magistrate. PW36 has deposed that he recorded the confession of the accused under Section 164 of the Code of Criminal Procedure, pursuant to the direction issued by the learned Chief Judicial Magistrate, Kozhikode. The learned Sessions Judge placed reliance on the testimony of PW36 and held that the accused had confessed before him that he strangulated his mother to death using a thalappu made of coir, ordinarily used for climbing coconut trees, and thereafter burnt the same in the hearth.

48. However, in the present case, the accused retracted the said confession when he was examined under Section 313(1)(b) of the Code of Criminal Procedure. He specifically stated that the confession was not voluntary and was made under threat, coercion, and inducement at the instance of the police.

49. In Aloke Nath Dutta And Others v. State Of West Bengal ((2007) 12 SCC 230), the Apex Court had occasion to lay down the law relating to acceptability of a confession. It was observed as under:

                  “Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.

50.    This Court in Shankaria v. State Of Rajasthan ((1978) 3 SCC 435) stated the law thus:

                  “23. This confession was retracted by the appellant when he was examined at the trial under Section 311 CrPC on 14-6-1975. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under Section 164 CrPC, the Court must apply a double test:

                  (1)      Whether the confession was perfectly voluntary?

                  (2)      If so, whether it is true and trustworthy?

                  Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must, before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.”

51.    As to what should be the legal approach of the Court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarised in Bharat v. State Of U.P ((1971) 3 SCC 950) Hidayatullah, C.J, speaking for a three-Judge Bench observed thus:

                  “Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true.

52. In the case on hand, the alleged confession was made by the appellant before the Judicial Magistrate on 04.12.2019. It is evident from Ext.P26 arrest memo that the appellant had been arrested on 22.11.2019. In his statement before the learned Magistrate, the appellant stated that he was produced from jail by the jail wardens. He further stated that he had not been instructed by the police. However, a perusal of the questions put by the learned Magistrate would reveal that the appellant was prompted to admit authorship of the alleged murder of his own brother, who had died by hanging more than a year earlier. The role of the learned Magistrate while recording a statement under Section 164 Cr.P.C is confined to recording the confession in accordance with law. The very fact that the learned Magistrate proceeded to enquire into the manner of death of the appellant’s brother clearly indicates that such information could have been conveyed to the Magistrate only by the police and by no other source. A specific question was put to the appellant by the Magistrate as to how his brother, Anu, had died about a year prior. In response to the said question, the appellant made an inculpatory statement alleging that he had picked up an altercation with his brother and thereafter hanged him to death. On the basis of the said confession, the police registered a crime and the appellant was subsequently charge-sheeted for the murder of his brother. The said case was tried by the very same learned Sessions Judge who tried the instant case, and the appellant was acquitted of all charges therein. The learned Sessions Judge held that the prosecution case, which was founded entirely on the confessional statement of the appellant, was wholly implausible and accordingly acquitted the accused.

53. As noted earlier, there are several striking features which cast serious doubt on the genuineness and voluntariness of the confession. It is evident that the appellant, who was barely 19 years of age at the relevant time, was made to accept authorship of the deaths of both his brother and his mother. While the post-mortem report in respect of the mother indicated injuries suggestive of hanging, the prosecution case is that the appellant had strangulated her. An equally fanciful and untenable version was put forth with respect to the alleged murder of the brother. Significantly, the very same Sessions Judge who convicted the appellant in the present case by placing reliance on the extra-judicial confession had disbelieved the prosecution version insofar as the alleged murder of the brother was concerned. It is significant to note that the confession was later retracted in writing by the accused during his examination under Section 313 of the Code of Criminal Procedure.

54. In Aloke Nath Dutta (supra), the Apex Court has held as follows:

                  104. Section 164, however, makes the confession before a Magistrate admissible in evidence. The manner in which such confession is to be recorded by the Magistrate is provided under Section 164 of the Code of Criminal Procedure. The said provision, inter alia, seeks to protect an accused from making a confession, which may include a confession before a Magistrate, still as may be under influence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) of the Constitution of India as also Article 21 thereof. Although, Section 164 provides for safeguards, the same cannot be said to be exhaustive in nature. The Magistrate putting the questions to an accused brought before him from police custody, should sometime, in our opinion, be more intrusive than what is required in law. (See Babubhai Udesinh Parmar v. State Of Gujarat . (2006) 12 SCC 268, (2006) 12 Scale 385.)

55. The Apex Court has held that where a confession is recorded in the presence of a Magistrate in conformity with the requirements of Section 164 of the Code of Criminal Procedure, and such confession is subsequently retracted, the Court is under a duty to subject the same to closer scrutiny. Notwithstanding the procedural safeguards embedded in the said provision, the Court must independently satisfy itself that the confession was made voluntarily. The Apex Court has observed that there may be instances where, despite adherence to procedural safeguards, confessions are made for reasons not readily apparent, including fear of the police. A judicial confession that is not voluntary is inherently unreliable, and this unreliability is further accentuated when such confession stands retracted. It would, therefore, be unsafe to place reliance on such a judicial confession, even as a corroborative piece of evidence. When a judicial confession is found to be involuntary, and more particularly when it is retracted, a conviction cannot be founded upon such confession in the absence of other cogent and reliable evidence. (See: Shankaria (supra))

56. Having regard to the facts and circumstances of the instant case, we are of the considered view that the learned Sessions Judge was not justified in placing reliance on the alleged extra-judicial confession of the accused to arrive at a finding of guilt.

57. The next circumstance relied upon by the prosecution is the alleged act of the appellant in causing disappearance of evidence by burning the thalappu and the subsequent seizure of ash on the basis of a disclosure statement. At the outset, it is to be noticed that the incident occurred on 17.11.2019. PW1, the husband of the deceased, deposed that the funeral ceremonies continued for a period of seven days, and that thereafter cooking was resumed inside the kitchen. The alleged recovery, as projected by the prosecution, is said to have been effected on 28.11.2019 pursuant to Ext. P28(b) disclosure statement. It is difficult to accept that the ash allegedly recovered on 28.11.2019 could be that of the burnt coir thalappu, particularly in the light of the evidence regarding the intervening period and subsequent use of the kitchen. Further, neither the investigating officer nor the attesting witnesses have spoken in clear terms about the alleged disclosure made by the appellant or the consequential recovery. Significantly, the witness examined to prove the recovery has stated that the appellant was seated inside the jeep at the time when the recovery was effected. In these circumstances, we are not inclined to treat the alleged recovery of ash as a reliable piece of evidence capable of linking the appellant with the murder of his mother.

58. Having held that the circumstances relied on by the learned Sessions Judge to arrive at the finding of guilt are not convincing, we hold that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt.

                  In the result, this appeal is allowed. The finding of guilt, conviction and sentence passed against the appellant in S.C. No. 547 of 2020 on the file of the Additional Sessions Judge-IV, Kozhikode, is set aside and the appellant/accused is acquitted of all charges. The appellant/accused be set at liberty forthwith if his continued incarceration is not required in connection with any other case.