IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 CRL.A.No. 230 of 2005() ----------------------- SC.208/2003 of ADDL. SESSIONS COURT (ADHOC)FAST TRACK-II, THRISSUR CP.24/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... APPELLANT: ----------- SHIBU SINGH, S/O. MOOKERIVEETTIL SEKHARAN, CONVICT NO.5563, CENTRAL PRISON, THIRUVANANTHAPURAM - 695 012. BY ADV. ADV.LIGEY ANTONY(STATE BRIEF) RESPONDENTS: ---------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SHRI S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2008, ALONG WITH CRA NOS.326/05 AND 847/05 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- Crl.Appeal Nos.230/05, 326/05 & 847/05 ----------------------------------------------------- DATED THIS THE 25th DAY OF AUGUST, 2008 JUDGMENT Balakrishnan Nair, J. These Criminal Appeals are filed by accused Nos.1, 3 and 2 respectively in S.C.No.208/2003, on the files of the Court of Additional Sessions Judge (Ad-hoc) Fast Track II, Thrissur challenging their conviction under Sections 395, 365, 364, 201, 380, 302 and 302 read with Section 34 of the I.P.C. and the sentence imposed on them. The facts of the case are the following: 2. The 1st accused, Shibu Singh, is the younger brother of Viswanathan. PW1 is the wife of Viswanathan. The 1st accused was a convict undergoing imprisonment. He was involved in many theft cases and the stolen articles were received and disposed of by Viswanathan. Dispute arose between them and Viswanathan threatened that he will inform the police that the accused who jumped the jail, was present in the locality. Infuriated by that, accused No.1 along with accused Nos. 2 to 7 came in a jeep to the house of Viswanathan on 20.11.2000 at 8.p.m. They called Viswanathan and held him at knife point. PW1,when tried to interfere was attempted to be hit with the knife. She tried to catch the dagger Crl.A.Nos.230, 326 & 847/05 -2- and the same injured her palm. The accused poured liquor into the mouth of Viswanathan and compelled him to drink it till he lost his consciousness. Later, PW1 and Viswanathan were blind-folded and taken in a jeep. After covering a distance of about 30 kms., when the jeep reached Poomala, which is the native place of PW1, she was dropped there. While, taking the deceased and PW1 the accused took several valuable items from the house of PW1 like T.V., V.C.R., etc. They by force removed the gold ornaments from PW1 and also a wedding ring worn by Viswanathan. PW1 with the help of a local person reached her house. She informed about the incident to her brother PW6, who made some search during the night to locate Viswanathan. Next day, they together went to the police station and lodged Ext.P1 F.I. statement. The 3rd accused was arrested on 25.11.2000. Based on his confession statement, it was found that the body of Viswanathan was buried at Pattithara on the banks of river Bharathapuzha. The stolen goods were also recovered from the house of the 3rd accused. The body was exhumed from the place shown by A3. Accused 1 and 2 were arrested on 28.11.2000 from a lodge at Guruvayoor by the Guruvayoor Police. Later, they were handed over to the Anthikad police on 2.12.2000. Based on the confession statement of A1, Crl.A.Nos.230, 326 & 847/05 -3- the spade which was concealed in a plastic bag and put near to the place from where the body was exhumed, was also recovered. 3. The Investigating officer PW33 completed the investigation and laid the charge before the Judicial First Class Magistrate's Court-II, Thrissur, who committed the case for trial by Sessions Court, Thrissur. The case was made over to the Additional Sessions Court (Ad-hoc) Fast Track-II , Thrissur. 4. The accused pleaded not guilty to the charges framed against them. From the side of the prosecution PWs 1 to 33 were examined and Exts.P1 to P44 were marked. Material Objects 1 to 14 were produced and marked. During the cross-examination from the side of the defence, Ext.D1 was marked, which was the contradiction in the deposition of PW1 with reference to her statement made under Section 161 of Cr.P.C. before the police. From the defence side, Exts.D2 to D5 were also marked. The accused were questioned under Section 313 of Cr.P.C. and they denied the circumstances that appeared against them in the evidence and which were put to them. 5. DW1, Sekharan, who is the father of the deceased Viswanathan, was examined by the defence to prove that the body recovered was not in fact the body of Viswanathan. Crl.A.Nos.230, 326 & 847/05 -4- According to DW1, Viswanathan is absconding to escape from his creditors. 6. After hearing both sides the learned Additional Sessions Judge found A1 to A3 guilty of the offences charged and they were accordingly sentenced to undergo imprisonment appropriate to the offences concerned. In these appeals, A1 to A3 challenge their conviction and sentence. They attack the findings of the learned Additional Sessions Judge against them. They raised various grounds. 7. Now we will notice the contentions of each appellant separately. The 1st accused would submit that allegedly at his instance a spade and a plastic bag were recovered from a place near to the place where the dead body was exhumed. That was on 3.12.2000. In fact, so many persons were assembled for the recovery of the body at the scene on 26.11.2000. Those persons have not noticed the presence of the bag in the neighbourhood. If it was there, it was inherently improbable that they would not notice it. So, the recovery of this plastic bag containing a spade from an open space at the instance of A1 and that too after the police came to know that the body was buried there, lacks probative value, it is submitted. Further A1 and the deceased Crl.A.Nos.230, 326 & 847/05 -5- were last seen together. According to the prosecution, the incident took place on 20.11.2000 and the body was recovered on 26.11.2000. In view of the long gap no presumption can be drawn against A2 based on the last seen together theory. Because of the time gap the evidentiary value of the recovery is nil. It is also vehemently contended that the dead body recovered is not that of Viswanathan. Therefore A1 is entitled to get the benefit of doubt, it is submitted. 8. The 2nd accused would submit that in the FI statement the 2nd accused was named as Babu. In the police charge he was named as Biju alias Babu. PW1 does not have a case that Biju is known as Babu also. PW1 also does not have a case that she named the second accused as Biju and it was wrongly recorded by the police as Babu. From the materials on record, it could be seen that the second accused as per the FIR is Babu whereas as per the deposition of PWs 1 to 4, he is Biju. She does not try any where to reconcile this contradiction. It is also submitted that Exhibit D1 would show that the police showed the second accused while he was in police custody and from the police, she came to know that it was Biju, the second accused. The learned counsel for the second accused would submit that since Babu was named in the Crl.A.Nos.230, 326 & 847/05 -6- FIR and Biju was arrested, a test identification parade was a must in this case. In the absence of any case for PW1 that Biju and Babu are one and the same, the second accused is entitled to get the benefit of doubt. No overt act is attributed to Biju in the FI statement. The overt acts were attributed to the second accused only before the court. So, the said statement lacks probative value. For this reason also, the second accused is entitled to get the benefit of doubt, it is submitted. 9. The 3rd accused also would canvass that the body recovered is not that of Viswanathan, but he is still absconding to escape from his creditors. In any view of the matter , it is submitted that the last seen together theory cannot be pressed into service to fasten the guilt on him for the reason that there is considerable gap between the accused seen together with the victim and the recovery of his body. The alleged recovery of gold ornaments made from his house under Section 27 of the Evidence Act has been disbelieved by the learned Sessions Judge also. It was only a stage managed recovery which was rightly found so by the trial court, it is submitted. Regarding the recovery of the body, it is submitted that the place where the body was found was located on the previous day, that is, 25.11.2000. The police along Crl.A.Nos.230, 326 & 847/05 -7- with the 3rd accused came to the seen and recovered it only on the next day. It is submitted that the police came to know where the body was buried on the previous day of recovery. Therefore, the recovery does not have any sanctity of a recovery under Section 27 of the Evidence Act. The 3rd accused is found guilty based on the following three circumstances. (1) He was seen last together with the accused. (2) The ornaments and other material objects were recovered from his house. (3) The body of the victim was recovered on the basis of his confession. In view of the aforementioned contentions, these three circumstances cannot be relied on against him, it is submitted. So, he is entitled to get the benefit of doubt. The learned counsel also relied on the decision of the Apex Court in Venkatesan v. State of Tamil Nadu [2008(2) KLD 292 (SC) ]and also the decision in Thankappan v. State of Kerala [2005(3) KLT SN.73 (Case No.86)]. 10. In answer, the learned Public Prosecutor would submit that all the three accused who are the appellants in these appeals were named in the FIR by PW1. Her statement against the appellants Crl.A.Nos.230, 326 & 847/05 -8- is corroborated by the recovery of the ornaments, TV, VCR, etc. and also by the recovery of the body as also the spade used for concealing the body under the river sand in the river bank. The learned Public Prosecutor also pointed out that the identification of the body by the wife would conclusively prove that the dead body belongs to her husband. Further, he would point out that the father and other relatives of the deceased never took up before any authorities their grievance about the missing of Viswanathan. They did not object to the bringing of the body to the house of Viswanathan and cremating it there. For the first time while cross- examining the prosecution witnesses, the accused have taken up a stand that the body found was not that of Viswanathan. So, the learned Public Prosecutor submits that the prosecution has succeeded in proving that the body recovered was that of Viswanathan. None of the grounds raised by A1 against the prosecution case is sustainable in law, submits the learned Public Prosecutor. The spade concealed in a plastic bag was at a distance of 15 meters away from the place where the body was buried. Therefore,there is nothing unusual that the the people who gathered there have not noticed the presence of the bag. The case advanced by the second accused relying on Exhibit D1 is Crl.A.Nos.230, 326 & 847/05 -9- unsustainable, it is submitted. The learned Sessions Judge has dealt with that point correctly in the judgment under appeal. So, his claim for benefit of doubt is liable to be rejected, it is pointed out. The learned Public Prosecutor distinguished the decisions cited by the 3rd accused concerning the application of last seen together theory. According to him, the recovery of the body at the instance of the 3rd accused from a concealed place would corroborate the oral evidence of PW1. So, the 3rd accused was rightly convicted, it is submitted. 11. Before adverting to the rival submissions, we would refer to the evidence on record. PW1, the wife of the deceased would state before the court that her marriage with the deceased took place on 28.5.2000. Thereafter, they were living together in the house of the deceased. Her mother-in-law died on 15.8.2000. Thereafter her father-in-law left the house along with another brother of her husband living in North India. She and her husband alone were residing in the house. While so, on 20.11.2000 at 8 PM while they were watching the TV, a jeep came to the courtyard and suddenly stopped. The accused entered the room. At knife point, the ornaments worn by her and the wedding ring of her husband were removed and taken by the accused. They blind- Crl.A.Nos.230, 326 & 847/05 -10- folded them and took them away in a jeep. She has spoken to the various overt acts of the accused in the above incident. After blind folding, but before taking them in the jeep, the TV, VCR, tape recorder, etc. were taken out and removed. She identified all the accused who were in the box including accused 1 to 3, who are the appellants herein. After driving about 30 Kms, she was let off at Poomala. While she was waiting there, a person called Baiju, familiar to her came there in a bike. She told him about the incident. He took her and dropped her at her residence. It was at about 11'O Clock in the night. She immediately informed PW6 her brother about the incident. He made a search to find out Viswanathan. Next morning, they went to the Police Station between 8.30 and 9 AM and gave the FI statement. She has spoken to the motive for the accused to abduct Viswanathan as her husband's threat to inform police about the presence of the first accused who was an escaped convict. The witness further stated that after a few days, on 26.11.2000, the body of her husband was found in a decomposed state. She identified the body. She also identified the knife using which she was injured. She identified other material objects including her ornaments and Crl.A.Nos.230, 326 & 847/05 -11- the wedding ring worn by her husband. She was subjected to extensive cross-examination by the accused, but nothing was brought out to discredit her version. PW6 is another material witness who is relied on by the prosecution to prove their case. He was present when the body was recovered from Pattithara. He says, he came to know the missing of Viswanathan from his sister PW1 between 10 and 11 PM on the fateful day. He along with his friends made some enquiries. But, they could not find him out. Next day, Anthikkad police was informed of the missing of A1. A3 had shown the place where the body was buried. When the sand was removed, the body was found. He identified the body as that of his brother-in-law. After showing the body to all persons, the body was buried. He was also subjected to extensive cross- examination. It was suggested that it was impossible to identify the body having regard to the decomposed state of it. PW16 is the Tahsildar who conducted the inquest. In his presence PW6 and PW17 identified the body of the deceased. But, later PW17 retracted from his statement and submitted that he believed that the body recovered did not belong to Viswanathan. With the permission of the court he was declared hostile by the learned Public Prosecutor and he was cross-examined. In cross- Crl.A.Nos.230, 326 & 847/05 -12- examination, he submitted that he did not move any authorities for tracing out missing Viswanathan. He is the first cousin of the deceased. PW24 is the doctor who conducted autopsy. He has given the cause of death as drowning. PW28 is the Sub Inspector of Police, Anthikkad Police Station who recorded Exhibit P1 FI statement. PW33 is the Circle Inspector of Police who conducted major part of the investigation. PW30 is the Circle Inspector who verified the charge and filed the final report before the Magistrate. 12. We gave anxious consideration to the contentions of both sides. We have gone through the evidence and materials on record. First, we will consider whether the finding of the learned Sessions Judge that the body recovered was that of Viswanathan is sustainable. We notice that the body was identified by PW6, the brother of PW1 and brother-in-law of the deceased, when it was exhumed. PW17 who is the first cousin of the deceased. Though, he identified the body while the inquest was prepared, he retracted from the said stand while he was in the box and he said the body recovered is not that of Viswanathan. He firmly believes that Viswanathan is still alive and he is remaining away to escape from the harassment of his creditors. But, he would admit that PW1 is the wife of Viswanathan. DW1, the father of the deceased Crl.A.Nos.230, 326 & 847/05 -13- while in the box has sworn that Viswanathan has not married PW1 and he also asserted the body recovered was not that of Viswanathan. But, he would submit that he has not complained before any authorities about the missing of his son. He would say, he has entrusted PW17 the responsibility to file complaints before the authorities. PW17 also would submit that he has not made any complaints before any authority for tracing out Viswanathan. The denial of DW1 of the marriage between PW1 and the deceased would show that he has scant respect for truth. The trial court has rightly disbelieved DW1. We find no reason to disbelieve the identification of the dead body by PW1 and her brother PW6. If somebody else's body is found and tried to be buried, there will be serious objection from the part of the relatives. In this case no one demurred and the first objection emanated only when the witnesses were in the box. Obviously, it was only to help the accused. So, we uphold the finding of the learned Sessions Judge that the body recovered was that of Viswanathan. We agree with the reasons and conclusions of the learned Sessions Judge on this point. 13. The medical evidence in this case would show that Viswanathan died of drowning. Whether it was a case of Crl.A.Nos.230, 326 & 847/05 -14- accidental drowning or a case of homicide as suggested by the prosecution is also a point which arises for decision in this case. Viswanathan was found missing from his house from 20.11.2000. His body was found at Pattithara on the banks of Bharathapuzha river on 26.11.2000. He was found buried under the sand. If it was a case of accidental drowning, the body would be floating in the river. Normally, no stranger would carry a floating dead body and bury it on the bank. The body was found buried under the sand. The irresistible inference that can be drawn is that it was a case of homicide. Those who killed him must have buried the body to cause disappearance of evidence against them. So, we also agree with the finding of the trial court that the death of Viswanathan was homicidal. 14. The next point to be considered is whether the accused are responsible for the death of Viswanathan. The prosecution has mainly relied on the last seen together theory as also the recovery of the material objects and the dead body to find them guilty. The last seen together theory is inapplicable in this case, it is submitted, for the reason of delay of six days in recovering the body. It is pointed out that there is no evidence on record to show the time of death. So, the delay of six days would considerably Crl.A.Nos.230, 326 & 847/05 -15- weaken the presumption which can be drawn based on the last seen together theory, it is submitted. But, the medical evidence would show that the body recovered was a decomposed body. We have perused Exhibit P21 series photographs also. At one point of time, the defence canvassed that the body is too decomposed and therefore it is not identifiable. Now it is canvassed that from the appearance of the body, the date of death cannot be ascertained. The deposition of the doctor is also relied on to support the submission. But the materials including the photographs and the deposition of the doctor would show that the body recovered was decomposed to a certain extent. The doctor has also given the opinion that the decomposition will be considerably retarded when it is buried under the sand. If the body is exposed, the decomposition will take place at a faster pace. Even without the support of any medical opinion or expert evidence, any layman can understand that the body was decomposed to a certain extent. Though the features for identifying the body may be available, still decomposition can be clearly seen from the eyes and other organs as they appear in the photographs. So, an inference can be drawn that the death took place a few days prior to the recovery of the body. The same cannot be termed as Crl.A.Nos.230, 326 & 847/05 -16- unreasonable. In this case, the accused were seen together along with the deceased by PW1 on the night of 20.11.2000. His body was recovered in a semi-decomposed state on 26.11.2000. The accused does not give any explanation regarding the disappearance of Viswanathan. It is exclusively within their knowledge as to what happened to Viswanathan after PW1 was let off at Poomala. They have not disclosed what happened to him. We think, this is a very important circumstance against the accused based on which it can be inferred that the persons last seen together are responsible for the homicidal death of Viswanathan. In this case, that the accused were seen last along with the deceased is proved beyond doubt by the deposition of PW1. PW1 has narrated in detail that all the accused came there in a jeep, showing a knife abducted them, took them in the jeep and she was let off, etc. The conduct of PW1 of informing the fact to PW6 and the next day lodging first information, etc. would lend full credence to the version of PW1. So, it is proved that the accused and the deceased were seen together last in a jeep on the night of 20.11.2000. 15. The above version of PW1 is further corroborated by the presence of many of the material objects in the house of the Crl.A.Nos.230, 326 & 847/05 -17- 3rd accused and its seizure by the police. The recovery of the body on the information furnished by the 3rd accused would further corroborate the deposition of PW1. So, in this case, we agree with the learned Sessions Judge that the last seen together theory was applicable on the facts of this case. We have gone through the decisions cited by the learned counsel for the appellants on this point. But those decisions are distinguishable on facts. Each case is decided by the peculiar facts of that case. In this case the body was not found in an open space and not sighted by local people. It was recovered from a place, where it was buried, on the information furnished by the 3rd accused. Therefore, the principles laid down in the decisions cited are not applicable to the facts of the present case. 16. From the above findings we hold that A1 and A3 were rightly found guilty and convicted. The last seen together theory coupled with the recovery of body and ornaments will prove beyond reasonable doubt the guilt of the 3rd accused. Same is the case of the first accused. The recovery of the spade concealed in a plastic bag very near to the place where the body was concealed and the deposition