Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 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 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 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 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 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. _.
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: [2009) 6 S.C.R. (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- 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.
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 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.
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 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. [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 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 t 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.
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 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 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."
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 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 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 c statement recorded by PW-65 under Section 164 was false.
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 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 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 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: 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 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.
33. Above being the position, the appeal is without merit, and deserves dismissal which we direct. N.J. Appeal dismissed.