IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE [ENTITY] & THE HONOURABLE MR. JUSTICE [ENTITY],THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 CRL.A.No. 590 of 2013 AGAINST THE JUDGMENT IN [SECTION] of ADDITIONAL SESSIONS COURT, FAST TRACK COURT-1, THIRUVANANTHAPURAM DATED 27-07- 2012 APPELLANT: [ENTITY], S/[ENTITY],C.NO.813,CENTRAL PRISON,KANNUR 670 004. BY ADV. [ENTITY]] RESPONDENT: STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV. [ENTITY], SPL.PUBLIC PROSECUTOR FOR ATTROCITIES AGAINST WOMEN AND CHILDREN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2018, ALONG WITH CRL.A.1109/2017, THE COURT ON 14.02.2019 DELIVERED THE FOLLOWING: [CASE NUMBER] -:2:- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE [ENTITY] & THE HONOURABLE MR. JUSTICE [ENTITY] ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 CRL.A.No. 1109 of 2017 AGAINST THE JUDGMENT IN [SECTION] of ADDITIONAL SESSIONS COURT, FAST TRACK COURT-1, THIRUVANANTHAPURAM DATED 27-07- 2012 CP 218/2010 of J.F.C.M.,KATTAKADA CRIME NO. 57/2010 OF Neyyardam Police Station, Thiruvananthapuram APPELLANT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, [ACT]. BY [ENTITY], SPL.PUBLIC PROSECUTOR FOR ATTROCITIES AGAINST WOMEN AND CHILDREN RESPONDENT/ACCUSED: [ENTITY] S/[ENTITY], RESIDING AT [ENTITY], [ENTITY], [ENTITY], VARKALA VILLAGE-695 141. BY ADV. [ENTITY] BRIEF) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2018 ALONG WITH [CASE NUMBER], THE COURT ON 14.02.2019 DELIVERED THE FOLLOWING: [CASE NUMBER] -:3:- JUDGMENT
Shaffique, J.
[CASE NUMBER] has been filed by the accused in [CASE NUMBER] challenging judgment dated 27/7/2012 of the Additional Sessions Judge, Fast Track Court-I, Thiruvananthapuram by which he was found guilty for the offence u/[SECTION] of [ACT] and sentenced to suffer imprisonment for life with a rider that he shall not be released from prison for a period of 17 years and also found guilty and sentenced to suffer rigorous imprisonment for three years for the offence u/[SECTION] of [ACT].[CASE NUMBER] has been filed by the State for enhancement of sentence.
2. The Prosecution allege that one [ENTITY] was murdered by the accused on 31/1/2010. The incident came to light when a Warder of the open jail at Nettukaltheri and a convict informed the Superintendent of Jail of having found a human skeleton, sari, hairs etc. On verifying the area of the open jail compound, they found a vertebrae and several other pieces of human skeleton with two or three ribs, imitation ornaments and a pair of anklets. The matter was informed to Neyyar Dam Police & 1109/17 Station by the Superintendent of Jail. PW44, the Sub Inspector of Police, Neyyar Dam on getting information from the Jail Superintendent, on 26/2/2010, at 4.00 p.m, had gone to the scene where the skeleton was found. The FIR is registered as Ext.P13. He took the Scientific Assistant, Police Photographer, Finger Print Expert and Dog Squad to the place of occurrence. From the scene of occurrence, MO4 to MO16 were seized and produced before Court. MO25 series were the sample of soil which were collected from the scene.
3. PW34, Assistant Professor in Forensic Medicine, Medical College Hospital, Thiruvananthapuram conducted postmortem examination of the skeleton and issued Ext.P7 certificate. The report revealed that the bones belonged to a female person aged approximately 35 years having an approximate height of 154.8 cms. Report further indicated that the death was due to an injury sustained on her head. PW35 the Scientific Assistant attached to DCRB collected blood stained sand and unstained sand from the locality and the same were sent for FSL examination.
4. While so, PW44 got information about missing of [ENTITY] and her parents were questioned. They identified the & 1109/17 ornaments and clothes of the deceased.
5. PW36, Assistant Director, Biology took blood samples of [ENTITY] (PW2), father of the deceased and [ENTITY] (PW3), mother of the deceased for determining the paternity and maternity of the deceased by DNA typing. He deposed that the DNA typing showed that the deceased person is the biological offspring of PW2 and PW3. He further testified that the skull and mandible belonged to the person in the photograph, which was that of [ENTITY].
6. Further investigation was conducted by PW47, who submitted the final report. The accused was arrested on 25/3/2010 at 11 pm from Parippally Junction. The arrest and inspection memo are Exts.P25 and P26. A purse was found during his body search, and the mahazar for it is marked as Ext.P27. Certain currency notes for `620/- was found in his purse which is produced as MO28 series. Four photographs were found in his purse which were marked as MO29 series. The chopper which was used for commission of the crime was recovered on the basis of confession statement of the accused as per Ext.P20 recovery mahazar. MO21 is the chopper. The extract of the confession statement is marked as Ext.P20(a). & 1109/17
7. The accused in the case was convicted earlier in [CASE NUMBER]. A copy of the judgment in [CASE NUMBER] is marked as Ext.X1. After suffering the sentence for a substantial period, sentence in the said case was commuted and he was set free. According to the prosecution, he was an inmate of the open jail for quite a long time. In [CASE NUMBER], he was sentenced and convicted for life imprisonment for having committed the murder of his wife. In that case also, prosecution alleged that he had taken his wife to a lonely area and she was inflicted with injuries on her head using a chopper.
8. The learned counsel for the appellant Smt.[ENTITY] who has been engaged by this Court to appear on behalf of the accused contended that there is absolutely no evidence to link the accused with the crime. On the other hand, the learned Special Public Prosecutor supported the judgment of the Court below and contended that there is sufficient evidence to convict the accused.
9. The first contention urged by the learned counsel is regarding the identity of the skeleton that was recovered from the open jail compound. It is submitted that according to the prosecution, the victim was last seen on 31/1/2010 and she was & 1109/17 murdered on the said day. Exts.D5 and D5(a) are the contradictions which had been proved in the case. Exts.D5 and D5(a) are the contradictions in the evidence of PW2, father of the deceased. Before the Court, he deposed that [ENTITY] was last seen on 31/1/2010. In cross-examination, he denied having given a statement to the police that she left the house on 7/2/2010 stating that she is going for work and thereafter she had not returned. This portion is marked as Ext.D5. Ext.D5(a) is his further statement that, on 7th February, [ENTITY] had gone from their house stating that she is going for a job. On that day, she was wearing the sari, which her daughter-in-law [ENTITY] had purchased and given to her. PW3, mother of [ENTITY] had in her chief examination stated that she was last seen on 31 st January morning at 8.30. In cross-examination, she was confronted with her previous statement wherein she had stated that, on 7/2/2010 she had gone for work to a distant place and did not come back. Earlier also, she used to go and be back after a few days. That is why they did not take it seriously. PW3 while confronted with the said statement stated that she had stated so, but the date was not correct. It was not 7th February, but was 31st January. PW4, PW5 and PW17 have also given evidence stating that they saw & 1109/17 the accused along with the victim for the last time on 31/1/2010. The learned Public Prosecutor however would state that the date on which [ENTITY] left the house as spoken to by PW2 and PW3 is a mistake as the other evidence clearly indicates that, after 31/1/2010, [ENTITY] was never seen. Exts.D5 and D5(a) statements were given by PW2 when statement was given by the Investigating Officer initially. In re-examination he stated that there was doubt regarding the date which he had mentioned. At the time he was examined before Court, he was 72 years old and during cross-examination, he also stated that he does not remember whether he had given a statement different from what has been given as per Exts.D5 and D5(a) and that he is a sick person. One fact which could be taken note of is that, 31/1/2010 and 7/2/2010 falls on a Sunday. Therefore, it is possible that PW2 and PW3 who are elderly persons may not have remembered the actual date on which their daughter had left their house. That apart, PW3 had clearly clarified while confronted with her earlier statement that though she had given a statement that she had seen her daughter last on 7 th February, it was a mistake, whereas, it is actually 31st January. In the light of the aforesaid explanation, we have to proceed on the basis that the contradiction regarding & 1109/17 date with reference to the earlier statement given by PW2 and PW3 is not material enough to discard the prosecution case in its entirety.
10. We have, therefore to analyse the other evidence available in the case in order to accept or discard the prosecution case. One of the main circumstances involved in the case is, and what the prosecution tries to establish is the last seen theory. The prosecution had examined several witnesses to prove that the accused and victim were seen together for the last time only on 31/1/2010. As already mentioned, PW2 and PW3 have deposed that they saw their daughter for the last time on 31/1/2010.
11. PW4 is a person who knew the accused. He had employed him earlier and since he found that the behaviour of the accused was not proper, he had sent him away. He deposed that he saw the victim for the last time on 31/1/2010 by about 9.30-9.45 am. She came in a bus and asked him to give some job to the accused. He stated that there is no job for him. She then proceeded to the front of their house. PW4 went to the garden for collecting rubber latex. He came back by around 11 am. His wife told him that deceased asked for some coconuts and she gave four coconuts. She also told him that when they were walking & 1109/17 towards the gate, the accused came in an auto and he gave a passbook to the deceased. The deceased entrusted the passbook and coconuts to his wife and said that they will collect it later and thereafter they walked towards Kaliyal junction.
12. PW5 is the wife of PW4. She deposed that she had seen the victim for the last time on 31/1/2010 between 9.30 and 9.45 in front of her house. She also stated regarding the incident in which she had given four coconuts to the deceased and the accused coming in an auto, entrusting the passbook and coconuts to her and proceeding towards Kaliyal Junction. She identified the passbook as MO20. She also identified MO4, the sari which the deceased was wearing at the relevant time, MO6, her blouse, MO8 to MO14, which were the ornaments the deceased was wearing, MO19 yellow shirt, which the accused was wearing at that time and MO18, the mobile phone which the deceased was holding at the relevant time.
13. PW6 is a shop owner and he knew the deceased and the accused. [ENTITY] was residing near his shop. He knew that the accused was having a relationship with the deceased. Both of them used to come for having tea in his shop. The money is paid by the accused. He knew about the relationship between & 1109/17 the accused and the deceased and the fact that he was spending amounts for her. He had also seen the victim providing food to the accused in his shop. His understanding was that they were living as husband and wife. He was shown the photograph of both of them as if they were married. He further deposed that, on 31/1/2010, he had seen them last together. Accused came for having tea and later the victim had come. Thereafter they had not come for taking tea. He identified MO4, MO6 and MO7 to MO14. He also identified MO21 chopper. He stated that on one occasion the accused came with the chopper to his shop. MO19 shirt of the accused was also identified by him. In cross- examination he however stated that, on 31/1/2010, the accused came for having tea in the morning and left the place. Thereafter, at 9 a.m, the victim had come and he did not see them together.
14. PW17 is an autorickshaw driver of vehicle KL-01 Y 8246. He knew the accused and the victim. He deposed that both the accused and deceased were living as husband and wife. On 31/1/2010 morning, at about 9.25, accused had come and got into the auto to proceed to Kalliyam. He had a plastic cover and a chopper. They went to the house of [ENTITY] (PW4). When he asked the accused where he was going, he said he was going to & 1109/17 collect firewood with the victim. He reached [ENTITY]'s house by 9.40 am. The accused kept the knife inside his shirt behind his body. He went inside [ENTITY]'s house. Instead of `25/-, he gave `10/- and offered to give the balance later. Thereafter he had seen the accused in the police station. He identified MO19 shirt the accused was wearing at the relevant time and MO21 the chopper.
15. Therefore evidence of PW2, PW3, PW4, PW5, PW6 and PW17 proves the fact that, after 31/1/2010, the victim was not seen and they were together seen for the last time by PW5.
16. According to the prosecution, the skeleton and the material objects received from the open jail compound were that of the victim. Let us now examine the evidence regarding the identification of the skeleton. The skeleton was first seen by PW18, [ENTITY], who was a prisoner of open jail. He is a person who looks after the cattle which are taken for grazing. He deposed that he saw a few skeletons which looked like that of a human-being. He identified MO1 to MO3, the skull and a few pieces of bones. He also stated that there were some dresses and ornaments which he identified as MO4 to MO15. He did not remember the date. A leading question was asked as to whether & 1109/17 it was on 26/2/2010, his answer was that it might be correct. He informed the matter to the Superintendent and they understood that the skeleton might belong to a lady. Thereafter they proceeded to the site with the Superintendent and informed the police. Police came on the same day. Next day also, the police came. He also had gone with them to the place where skeletons were found. PW27 and PW28 have witnessed Ext.P2 by which the inquest report was prepared by the police. PW29 is also a witness to the inquest. PW33 had taken the videograph of the dresses and ornaments of a woman in the open jail compound. The CD is produced as MO24. PW40 was on guard duty in the open jail compound from 6 p.m on 26/2/2010 till 8 a.m on the next day along with Head Constable [ENTITY]. As has already been stated, from scientific evidence, it was found that the skeleton belonged to a lady and the dresses and ornaments recovered from the very same scene were identified by PW2, PW3 and PW5. Therefore, there cannot be any dispute regarding the identity of the victim.
17. It is rather clear that the victim's death was on account of a homicide as evident from Ext.P7 report and the oral testimony of PW34.
& 1109/17
18. The only other question that requires to be considered is whether the accused was involved in the crime. The prosecution had tried to establish the case based on circumstantial evidence. The first circumstance pointed out is Ext.X1, the judgment in [CASE NUMBER]. This judgment is produced only to prove the manner in which the accused had committed an earlier crime wherein he was punished and sentenced for imprisonment for life. But, later he was released by the Government after commuting the sentence. Of course, that by itself cannot be a reason for this Court to arrive at the guilt of the accused. But, the prosecution tries to emphasise on the point that, in that case also, the accused has murdered his wife by taking her to an open ground and inflicted fatal injuries on her head which is the same instance in the present case as well. Despite the judgment in [CASE NUMBER], we do not think it necessary for us to be carried away by the said judgment alone except to have an understanding that he was an earlier convict in another case.
19. In the case on hand, we have to independently arrive at a conclusion as to whether there are any circumstances which have been proved against the accused which could only point out & 1109/17 to the guilt of the accused. As already stated, one of the arguments was that the death was after 7/2/2010 and not on 31/1/2010. We have already dealt with the said argument. The argument was based on the previous statement of PW2 and PW3. PW3 has already clarified that it was a mistake by giving the date as 7/2/2010 and it is actually 31/1/2010. The day 7/2/2010 and 31/1/2010 being Sundays, it would only appear that the old couple had given a mistaken date when they were asked about their daughter's absence. That apart, it is in their evidence that she used to go out occasionally and would come back after some time and it was a regular practice. Therefore, they did not bother about her absence at all. Her brother PW9 had given evidence stating that he heard that she was living a loose life and on account of her behaviour, his wife and children have no contact with her. He had also identified MO6 to MO14 as belonging to the victim. Further, the accused was seen with the victim on 31/1/2010 by around 9.30-9.45 am and thereafter there is no material to infer that the victim was seen by anyone at any point of time. PW2 had deposed that he had heard from the people in the locality that the accused and the victim were having a relationship. PW3 also knew the accused. He had come to take a & 1109/17 pit for the toilet. She also stated that the accused and the victim were having a relationship and he used to come to her house during night and her grand son had seen the same. PW7 is the minor child who was aged 8 years at the time when he was examined. He is the son of the victim. He identified the accused in MO17 photograph. He calls the accused as [ENTITY]. He deposed that the accused used to come during night to their house. He used to have food in their house. He likes him. At times, during quarrel with his mother, accused used to threaten that he would kill her. They used to quarrel when mother does not come home for a few days. PW6 also proves the fact of having seen the accused and deceased together and the accused spending money for the victim. The aforesaid evidence apparently proves that there was a relationship between the accused and the victim, which is not disputed by the defence.
20. Yet another circumstance which has been highlighted by the prosecution is the subsequent conduct of the accused. PW11 [ENTITY] is the nephew of the accused. He deposed that, on 31st January of the previous year (2010), the accused had come to his house by about 9.00 p.m. He had a plastic cover with him. He was wearing a kaili mundu and an yellow shirt. While they & 1109/17 were talking, he saw the accused burning some papers behind the bathroom. He thereafter had a bath, came back and he wore a kaili mundu and a shirt. He had asked his son to wash the other shirt. Thereafter, he had food and asked him whether he could pledge a mobile and that he requires `500/-.Next day, they pledged the mobile in the nearby house for `300/- and it was given to the accused. Accused went away in the morning itself and came back the same night at 9 p.m. PW11 was residing at that time at Vengode near Paripally. When he came by the night, he was drunk. He had purchased some sardines and tapioca. It was cooked and they consumed the same. Thereafter, he took a packet from his purse. It was a hanging portion of an ear ring. He asked him to sell the same on the next day. PW11 asked him from where he got it. Accused asked him not to enquire about it and abused him with filthy words. He also said that he would kill him and he had come after killing a person. Since he was drunk, PW11 thought that he was speaking rubbish. Accused told him that the ear ring was a lost found one. Next day morning, the accused left the place. When PW11 went to Paripally, he saw the accused there and he asked him to sell the ear ring. Since he did not know any person, he entrusted the same to [ENTITY], who & 1109/17 sold it in Surya jewellery for `900/-. The money was given to the accused, out of which, he had paid `50 to [ENTITY]. He left the place with the balance amount. One week thereafter, he called over phone and told him that he was at Thalasserry. Then he disconnected the phone. The mobile phone which he had pledged was collected by his son and he was using it. Thereafter the police came and the mobile phone was surrendered, which is identified as MO18. The shirt of the accused which was given for washing was identified as MO19. He also deposed that accused had shown him a photo which was kept in his purse and stated that it was his wife. He identified the victim in Ext.P17 photograph.
21. PW12 is [ENTITY], son of PW11. He deposed regarding the fact that accused had come to their house on 31/1/2010, the pledging of MO18 for `300 and that he had released the mobile phone pledged and was using it. It is stated that the number of the mobile was 9526158967.
22. PW14 is [ENTITY] who took MO18 mobile on pledge by paying `300/- and it was taken back by PW12 on 3/2/2010. PW15 is a worker of Surya Jewellery. He deposed that, on 2/2/2010, [ENTITY], [ENTITY] (PW11) and the accused had come. They & 1109/17 wanted to sell the ear ring. There were sand particles and the accused told that it was a lost and found article. He checked up with the owner of the shop and paid `900/-. The police had come and by the time they have converted the gold into a sheet which was produced and the same was identified as MO22. Ext.P3 is the mahazar for recovering the gold sheet. PW16 is the owner of Surya Jewellery. He is a witness to Ext.P3 mahazar by which the gold sheet was recovered. He supported the statement of PW15.
23. PW19 is one [ENTITY]. He is a tapping worker. He knew the accused. They were friends. His mobile number was 9656183890 and he had another number 9567293387. The accused called him during the first week of February, 2010 and enquired whether there is any news in the place. He called again after three weeks and asked whether the police had come and enquired about him. Before giving an answer, he disconnected the phone. He also told him that he was at Kannur.
24. PW20 has a mobile and watch shop. He identified the persons in MO17. He stated that they had purchased a mobile phone Nokia by paying `1500/-. He identified MO18. PW21 runs a lodge. He deposed that accused and the victim had come for taking a room and he had provided room No.5. He had identified & 1109/17 the persons in MO17 photograph. PW23, a sales man of Chithra Jewellery had identified the victim in MO17 photograph and he also identified MO13, the anklets which had been changed by the victim on 2/11/2009. He deposed that while she had come to change the anklets, accused was along with her.
25. PW24 is the owner of Ullas Studio. He had taken MO17 photograph on 2/7/2009. The CD of the photograph is produced and marked as MO23.
26. From the aforesaid evidence, the only fact that could be discerned is that, on 31/1/2010, by evening, the accused reached Vengode near Paripally in the house of PW11. He had with him MO18 mobile phone, which, according to the prosecution, belonged to the victim. He also sold a portion of the ear ring alleging that it was a lost and found article and collected the money. Thereafter, the accused was not seen in the locality.
27. PW19 deposed that the accused called him and enquired about the situation in the said place, which was immediately after 31/1/2010. Thereafter, he called after three weeks and enquired whether the Police had come in search of him. As rightly pointed out by the learned counsel for the appellant, there is no evidence to prove that the ear ring which & 1109/17 the accused had with him, while he met PW11, belonged to the victim. The only connecting link is the mobile phone, which according to the prosecution was used by the victim and how did it come to the hands of the accused is to be looked into. The prosecution case is that after committing the crime, the accused had proceeded to Vengode at Paripally and he had taken the mobile phone of the victim which he had given to PW11 for pledging. The fact that accused had pledged the mobile phone MO18 is proved by the oral testimony of witnesses PW11, PW12 and PW14. The said mobile phone was being used by the victim which is evident from the testimony of PW2 and PW3. But, it would only prove that the accused was in possession of a mobile phone which belonged to the victim. It is also to be remembered that when they are living together or was maintaining a relationship, it is also possible that the mobile phone of the victim is kept by the accused. Therefore, mere possession of the mobile phone by itself is not enough to arrive at the complicity of the accused to the crime. It is only one of the links in a chain of circumstances.
28. Yet another circumstance which the prosecution highlighted was that MO19 dress, namely the shirt which was & 1109/17 recovered from the house of PW11 contains blood. The shirt was sent for forensic analysis and Ext.P34 is the report. The shirt is item No.24 in Ext.P34. It is reported that item No.24 contained blood which was found to be insufficient for determining the origin.
29. Yet another circumstance that had been relied upon by the prosecution is that the accused had taken the investigating officer to the place where the skeleton was discovered. Ext.P19(a) is the confession statement. The learned Public Prosecutor placed reliance on the judgment of the Apex Court in [ENTITY] v. State of Gujarat and Another (AIR 2017 SC 1761) to contend that when the accused gives the statement to the police regarding the place where the dead body of a person is dump, it amounts to discovery of a fact in terms of [SECTION] of the [ACT]. Paragraphs 48 and 49 of the judgment are relevant, which read as under:-
"48. It is not necessary to multiply the authorities on this aspect. In our opinion, the Courts below have rightly placed reliance on the fact discovered by the Investigating Officer (PW64) on the basis of the disclosure made by the Accused No.3 on 2nd April 1999, after his arrest on 29th March, 1999, as recorded in Exh. 188. The panchanama Exh.188 was proved by pancha witness PW30. The fact that PW30 & 1109/17 was not on good terms with the accused cannot be the basis to discard his evidence. This aspect has been considered by the High Court and in our opinion, rightly, that the evidence of PW30 was relied upon for the limited purpose to prove the panchanama and not for any other relevant fact. We affirm the view taken by the courts below about the admissibility of disclosure of the spot where the dead body of [ENTITY] was disposed of by Accused No.3. The same stood corroborated from the recovery of a dead body of an unknown person from the same spot by the Rajasthan Police on 4th May, 1998 on the information provided by PW50. That dead body, on subsequent medical examination was found to be of none other than that of [ENTITY].
49. As regards the identity of the dead body, the Courts below took note of the evidence of PW57 and PW50. PW50 had informed the local police of Barothi on 4th May, 1998 about the dead body of an unknown person lying at the same spot, later on discovered to be that of [ENTITY] due to the disclosure made by Accused No. 3. PW57 conducted the post-mortem of the burnt dead body found at Barothi village in Rajasthan. He deposed that the death was homicide. He also deposed about the golden teeth and a key found near the dead body. During the course of investigation, it was revealed that the said key could open the lock put up on the room of the deceased in the Vadtal Temple complex. PW3 corroborated that fact.
Further, the identity of the dead body was conclusively established from the DNA testing results of the skin sample of the body which matched with the blood samples of the biological sister of the deceased. Additionally, PW1 also confirmed that he had treated the deceased in 1993 by & 1109/17 implanting gold caps on his teeth. That statement was corroborated by the receipts and diary entries of PW1. Indeed, the Appellants have vehemently contended that the said medical records are fabricated because of the discrepancies therein. However, the said discrepancies would not discredit the other evidence regarding the identity of the dead body which has been duly corroborated. This view taken by the High Court, in our opinion, is a possible view. It is certainly not a perverse view. As the identity of the dead body of deceased [ENTITY] is established, it is a strong circumstance to link it to Accused No.3 who had voluntarily disclosed to the investigating agency about the spot/location where the dead body of the deceased was dumped by him and that being the same place in Barothi village in Rajasthan from where the dead body of an unknown person was recovered earlier by the local police."
30. But, in this case, we do not think that the principle laid down in the above judgment can be applied. This is a case in which everyone knew from where the skeletons were located and even before the accused was apprehended, the identity of the victim was known. In [ENTITY] (supra), Supreme Court considered a case in which though a dead body was found, identity of the dead body could not be located. The accused on his arrest gave a confession statement and while leading the police to the place where the dead body was dumped, it was noticed that it was the same place where the unidentified body & 1109/17 was found and it was found to be that of a particular person. Such a situation does not arise in the case on hand and therefore the aforesaid judgment has no application.
31. Yet another circumstance relied upon by the prosecution is the recovery of MO21. After the arrest of the accused, he had given a confession statement which is marked as Ext.P20(a). The police party had taken the accused to the place where the weapon was concealed. It was among a cluster of standing reeds near the place where the skeletons were found. MO21 was recovered in the presence of witnesses. MO21 was sent for FSL examination and in Ext.P34 report, it was mentioned that MO21 chopper contains blood. However, it is insufficient for determining the origin.
32. Learned Public Prosecutor placed reliance upon the judgment in State of Rajasthan v. [ENTITY] and Others [(1999) 3 SCC 507] to contend that, even if the bloodstains cannot be detected due to disintegration of the serum, the circumstance arising from recovery of the weapon would not stand relegated to disutility. Paragraphs 24 to 27 are relevant, which read as under:-
"24. Normally, the above circumstance should have been & 1109/17 given weighty consideration in the evaluation of circumstantial evidence. But the High Court downstaged it on a reasoning which is difficult to sustain. This is what the High Court has observed regarding the evidence relating to the recovery of the two axes (kulhadis):
"The evidence of the bloodstained kulhadi is not sufficient as the prosecution has not been able to prove that kulhadi which was stained with human blood was recovered from whom. Thus it is not clear whether the recovered kulhadi was of [ENTITY] or of [ENTITY]. The other infirmity in the chemical examiner's report is that it does not mention the extent of blood seen on the kulhadi. It has not been established clearly as to which particular accused the incriminating axe belonged. As such, it cannot be used against any one of these two accused."
25. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.
26. Learned counsel for the accused made an effort to sustain the rejection of the abovesaid evidence for which he & 1109/17 cited the decisions in [ENTITY] Navle v. State of Bombay and [ENTITY] v. State of U.P. In the former, [ENTITY], J. has observed that the chemical examiner's duty is to indicate the number of bloodstains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail. It was a case in which one circumstance projected by the prosecution was just one spot of blood on a dhoti. Their Lordships felt that "blood could equally have spurted on the dhoti of a wholly innocent person passing through in the circumstances described by us earlier in the judgment". In the latter decision, this Court observed regarding the certificate of a chemical examiner that inasmuch as the bloodstain is not proved to be of human origin the circumstance has no evidentiary value "in the circumstances" connecting the accused with the murder. The further part of the circumstance in that case showed that a shirt was seized from a drycleaning establishment and the proprietor of the said establishment had testified that when the shirt was given to him for drycleaning, it was not bloodstained.
27. We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existing therein. They cannot be imported to a case where the facts are materially different."
33. Another judgment relied on is [PRECEDENT]. In this case, the Apex Court following [ENTITY] (supra) observed that even if the & 1109/17 classification of blood could not be determined and the Serologist could not determine the origin, still, Court can rely upon the same as evidence. Paragraphs 17 to 20 are relevant, which reads as under:-
"17. The Serologist and Chemical Examiner to the Government of India found chadar (sheet) and other items to be stained with human blood. However, the origin of bloodstains on items, pair of shoes and kassi could not be determined on account of disintegration with the lapse of time.
18. Learned counsel for the appellant submitted that as the origin of the blood could not be determined, the appellant was entitled to be acquitted, as according to him the prosecution had failed to connect the accused with the commission of crime. In support of his contention he relied upon the judgment of this Court in [ENTITY] Navle v. State of Bombay, [ENTITY] v. State of U.P., [PRECEDENT], [PRECEDENT].
19. The effect of the failure of the Serologist to detect the origin of blood due to disintegration in the light of the judgments in [ENTITY] and [ENTITY] cases was considered by this Court in State of Rajasthan v. [ENTITY] wherein it was held: (SCC pp. 514-15, paras 25-27)
20. In view of the authoritative pronouncement of this Court in [ENTITY] case we do not find any substance in the submissions of the learned counsel for the appellant & 1109/17 that in the absence of the report regarding the origin of the blood, the trial court could not have convicted the accused. The Serologist and Chemical Examiner has found that the chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant."
34. The evidence before the Court establishes the fact that [ENTITY] was missing since 31/1/2010. The last person who saw her on 31/1/2010 was PW5. At that time, she was with the accused. The skeleton of [ENTITY] was noticed at the open jail compound on 26/2/2010. PW34 opined that the death could have occurred approximately above a minimum period of 7 days and within 30 days of post-mortem examination. Postmortem was conducted on 27/2/2010. Therefore, the actual date on which [ENTITY] sustained injuries which resulted in her death cannot be ascertained with precision. At any rate, we could only infer that the death was on or after 31/1/2010.
35. It is clear from the evidence of the prosecution witnesses especially PW2, PW3, PW6 and PW7 that [ENTITY] was & 1109/17 having an extra-marital relationship with the accused. PW7, son of [ENTITY] refers him as [ENTITY]. ([ENTITY] father). Therefore, it has to be assumed that he was a constant visitor in their house and accused along with [ENTITY] were having a relationship. Evidence of PW24 proves that accused along with the deceased [ENTITY] had gone to his studio and had taken MO17 photograph on 2/7/2009. The couple also purchased a mobile phone MO18 Nokia made, by paying `1,500/-. PW21 had deposed that the couple had taken a room and stayed in his lodge. PW23 had identified the victim in MO17 photograph and he identified MO13 anklets. He also deposed that the victim had come to change the anklets on 2/11/2009 and the accused was also along with her. Therefore, the relationship the accused had with the deceased is proved beyond all reasonable doubt.
36. Though the learned Public Prosecutor tries to emphasise that the ear rings which the accused sold through PW15 and PW16 belonged to the victim, the recovery was of a gold sheet and none of the witnesses have stated that the deceased had such an ear ring. Of course, the accused had stated to PW11 that it was a lost and found article. Therefore, recovery of the gold sheet from the shop of PW15 and PW16 does & 1109/17 not implicate the accused to the crime.
37. The main circumstance that is pointed out by the Public Prosecutor is the possession of the mobile phone, which according to PW2 and PW3, was used by the deceased. It is in evidence that on 31/1/2010, the mobile phone was with the accused and he had pledged it and collected `300/- from PW14 as per the intervention of PW12. He did not take it back as promised, but it was taken back by PW12 and he used it for a few days. The mobile phone was purchased from the shop of PW20 by the accused along with [ENTITY].
38. The other main circumstance pointed out by the prosecution is the conduct of the accused and the fact that he had an intention to commit the crime on 31/1/2010. Prosecution relies upon the oral testimony of PW7, PW17 and PW5. PW7, son of [ENTITY] has stated that the couple used to quarrel and the accused used to threaten her that she would be killed. However, the exact details of the said threat by the accused is not known and that apart, PW7 is only a child witness whose evidence has to be evaluated with great care and caution. PW17 deposed that on 31/1/2010, the accused got into his autorickshaw and he had a plastic cover and a chopper. The accused hired the auto to go to & 1109/17 the house of PW4. When he reached PW4's house, the accused hid the knife inside his shirt. PW17 indeed identified the said knife as MO21. Learned counsel for the appellant argued that the evidence of PW17 cannot be relied upon as there is no possibility for him to see MO21 while driving the autorickshaw. In cross- examination PW17 stated that while the accused entered into the vehicle, he did not notice the chopper. He deposed that while entering the auto, accused was carrying a plastic cover and PW17 did not know what it was. He saw the chopper only when the accused got down. He further deposed that "Auto . ." Though it is true that PW17 had deposed that he did not see the chopper while they were travelling, his evidence in chief-examination was that when they reached the house of [ENTITY] (PW4) the accused " ." Therefore, PW17 had the occasion to see the chopper when the accused took it out and kept it behind his tucking inside his shirt. From the conduct of the accused, it is evident that he was keeping the chopper concealed. & 1109/17 Thereafter, PW5 sees the accused and [ENTITY] walking towards Kaliyal junction after entrusting her with the coconuts and the passbook and offering to come back after some time. MO21 chopper was recovered at the instance of the accused on the basis of his confession statement and the chopper was blood- stained, but, the origin of the blood could not be detected. Therefore, there is evidence to prove that accused was carrying MO21 chopper on 31/1/2010 and [ENTITY] was along with him.
39. Yet another circumstance which requires consideration is the telephone conversation between PW19 and accused. The accused called him during the first week of February 2010 and enquired whether there is any news in the said place. He again called after three weeks and asked PW19 whether the police had come and enquired about him. Thereafter, he disconnected the phone.
40. That the accused had taken the police officers to the scene of crime cannot be a circumstance that could be utilized to implicate the accused to the crime as the police officers were well aware of the place, from where the skeletons were found. The accused was arrested on 25/3/2010 after ascertaining the identity of the victim.
& 1109/17
41. Yet another circumstance is the recovery of an yellow shirt which the accused was wearing on 31/1/2010. It contained blood stain, but, the origin of the blood could not be ascertained.
42. As rightly pointed out by the learned Public Prosecutor, the modus operandi of the crime as reflected in Ext.X1, the judgment in [CASE NUMBER] is almost similar in the case on hand. In this case also, a lady was murdered in an open compound using chopper.
43. In order to implicate the accused, prosecution has proved the following circumstances:-
(i) The accused was seen with a chopper on 31.1.2010 by PW17, while travelling in his auto. Accused was dropped in front of PW4's house.
(ii)The deceased was last seen with the accused on 31.1.2010, by PW5. None has seen her thereafter.
(iii) The accused was not seen in the locality after 31.1.2010.
(iv) By 9 p.m on 31.1.2010 accused went to PW11's house and pledged MO18 mobile phone belonging to the deceased.
(v) Accused calls PW19 during first week of February and & 1109/17 enquires whether there was any news in the locality. He calls PW19 again after three weeks and checks up whether Police had enquired about him.
(vi) MO21 chopper was recovered based on the confession statement of the accused and it was blood- stained.
(vii) Accused was wearing MO19 dress on 31/1/2010. It was recovered from the house of PW11 on 9/3/2010 and found to be blood stained.
44. The circumstances under which the last seen theory can be made applicable is rather well settled. In [PRECEDENT], the Apex Court held that if there is no eyewitness to the occurrence, but only circumstances coupled with the fact of the deceased having been last seen with the appellant, "Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, & 1109/17 and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under [SECTION] of the [ACT] with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."
45. In [PRECEDENT], Apex Court held that "Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another." It was further held that "The mere circumstance that the appellant was last & 1109/17 seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the appellant was last seen with the deceased and the time of death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body."
46. In [ENTITY] v. State of U.P., [(2014) 5 SCC 509], the Apex Court held that:-
"19. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. The conduct of the accused and the fact of last seen together plus other circumstances have to be looked into. Normally, last seen theory comes into play when the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the perpetrator of the crime becomes impossible. It will be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, it is obligatory on the part of the accused to & 1109/17 explain the circumstances in which the missing person and the accused parted company. Reference may be made to the judgment of this Court in [PRECEDENT] *. In such a situation, the proximity of time between the event of last seen together and the recovery of the dead body or the skeleton, as the case may be, may not be of much consequence. PWs 1, 2, 3, 5, 9 and 10 have all deposed that the accused was last seen with [ENTITY]. But, as already indicated, to record a conviction, that itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused."
(emphasis supplied) *[PRECEDENT]
47. The settled legal position is that the last seen theory becomes significant when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead, is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. Of course, [ENTITY] (supra) was a case in which the skeleton remains of the deceased were found out an year after the missing of the person. The victim, a foreign tourist, was not seen since 10/8/1997. A complaint was made by her father on 24/4/1998. The accused was a guide who was seen with the victim. The complainant had suspicion about the accused and the police took him under custody on 19/8/1998 and & 1109/17 on questioning he took them to his house and the skeleton remains of the victim was exhumed. But that was a case in which after the accused was apprehended, he had taken the police to the place where the dead body was buried and the skeleton was exhumed. In such a contingency, the Apex Court observed that if the prosecution is able to establish on the basis of reliable evidence that the missing person was seen in the company of the accused and was never seen thereafter, it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused parted company.
48. In the case on hand, the evidence discloses that the victim used to go from her house on several occasions and would be back only after several days. In fact, she was living a wayward life as well. Therefore, the principle of last seen theory cannot be made applicable to the facts of the present case.
49. The only other evidence available in the case is the recovery of MO18 mobile phone which belonged to the deceased. Apparently there is no valid explanation from the accused as to how he came into possession of the said mobile phone. The other incriminating factor is the recovery of MO19 dress. All the witnesses who had last seen the accused on 31/1/2010 had & 1109/17 clearly stated that the accused was wearing MO19 shirt at the relevant time. On 31/1/2010, accused reached the house of PW11 and he was wearing MO19 shirt. He left it there after asking PW11's son to wash the same, which was recovered by the police. The shirt was bloodstained. The other incriminating factor is that after remaining with PW11 for a few days, he did not come back to the house of deceased and had no contact with PW2, PW3 or PW7, whereas, he telephoned PW19 to ascertain whether there is any news in the locality and whether the police was in search of him. The absconding of accused from the place where he was residing immediately after 31/1/2010, the date on which [ENTITY] was last seen, is a strong circumstance which indicates that the accused had something to hide. In [PRECEDENT], the Apex Court observed as under:-
"Different persons are differently constituted and some persons when wanted in a criminal case, deliberately abscond simply to avoid a criminal trial. Still, the flight of the accused from justice after the occurrence is a relevant circumstance indicative of the conduct of the accused. At the same time, it must be borne in mind that conclusion of guilty mind cannot be drawn from such circumstance alone because even an innocent person may be tempted to such conduct, to avoid arrest."
50. In the case on hand, the police after having known & 1109/17 that the skeleton remains were that of [ENTITY], went in search of the accused and he was missing. They had recovered MO20 passbook from the house of PW4 and PW5, MO19 shirt from the house of PW11 and despite their search, they were unable to locate the accused. Finally he was taken into custody on 25/3/2010 from Paripally. At the time of arrest, among other items, he had the passport size photographs of four women as well, which was kept in his purse. After the arrest, on the basis of his confession statement, he had taken the investigating officer to the place where the chopper was hidden. Of course, the shirt MO19 and MO21 chopper though were bloodstained, the origin of blood could not be detected. The Apex Court in [ENTITY] (supra), held that if there is failure on the part of Serologist to detect the origin of blood due to disintegration of the serum, it does not mean that the blood on the weapon would not have been human blood at all. It is relevant to note that this is a case in which the accused was an inmate of the open jail and he was fully aware of the lie and location of the open jail. PW4 in his testimony has stated that he had a garden near the open jail and accused used to work for him in that place. From the materials placed on record, it is rather clear that MO21 weapon was used & 1109/17 for commission of the crime and it was seen in possession of the accused by PW17 on 31/1/2010 while alighting from an autorickshaw and PW5 deposed that the accused had come to their house on 31/1/2010 and had gone with [ENTITY]. Therefore, at the time when [ENTITY] and the accused were last seen by PW5, the accused had kept the chopper hidden in his tucking. The fact of concealment of the weapon in the open jail compound is proved by the recovery based on Ext.P20 mahazar. Ext.P20(a) is the confession statement. Therefore, there is enough evidence available in the case to indicate that the accused having committed the murder, had proceeded to the house of PW11, pledged the mobile, left his shirt there and eloped from the scene after selling a portion of the ear ring. He did not come to the house of [ENTITY] thereafter nor to the locality. His conduct in calling PW19 and enquiring whether the police was in search of him is another strong incriminating circumstance against him.
51. The aforesaid materials clearly prove the fact that the accused alone was responsible for commission of the crime and hence we are of the view that the Court below did not commit any error in convicting him.
& 1109/17
52. [CASE NUMBER] has been filed by the State for enhancement of sentence. The case has been decided on circumstantial evidence and the accused had been sentenced to imprisonment for life and a direction had been issued that he shall not be released from prison for a period of 17 years.
53. Of course in [PRECEDENT], it is always open for the Court to substitute a death sentence by life imprisonment or by a term in excess of 14 years and further to direct that the convict shall not be released from the prison for the rest of his life or for the actual term as specified in the order. But it is relevant to note that the statutory right of the accused to seek commutation or remission as provided under the [ACT] cannot be taken away by the trial Court. Such an order could be passed only by constitutional courts and therefore the direction issued by the trial Court that he shall not be released from prison for a period of 17 years is liable to be set aside
54. However, we do not think that this is a fit case in which death sentence can be awarded especially since the case rests only on circumstantial evidence. In the result, we are of the & 1109/17 view that the conviction of the accused for offence u/[SECTION] of [ACT] stands confirmed and his sentence for imprisonment for life also stands confirmed. However, the order of the Court below that the accused shall not be released from prison for a period of 17 years shall stand set aside.
[CASE NUMBER] is disposed of with the above modification to the sentence and [CASE NUMBER] is dismissed.
[ENTITY] JUDGE Sd/-
[ENTITY] True Copy JUDGE PS to Judge