IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 CRL.A.No. 501 of 2006() ----------------------- SC.297/2005 of ADDL.SESSIONS COURT-II, KOZHIKODE .................... APPELLANT: ACCUSED --------------------- AVUTHY @ BABU, S/O.SUBRAMANIAN, ANKKALPATTY, THOTTIYAM.P.O, TRICHI, TAMILNADU. BY ADV. SRI.SANTHARAM.P SRI.K.P.RAJAGOPALAN RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR SHRI.P.N.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr.A.No.501 of 2006 ------------------------------------------------------------------ Dated 11th December 2009 Judgment Balakrishnan Nair, J. The accused in Sessions Case No.297/04 of the Sessions Court, Kozhikode, is the appellant. He was charge sheeted by the Thamarassery Police, for the offences punishable under Ss.449, 302 and 392 IPC. The learned Sessions Judge found him guilty of all the offences and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.10,000/- for the offence punishable under S.302 IPC, Ten years' rigorous imprisonment and a fine of Rs.7,500/- for the offence punishable under S.392 IPC and imprisonment for life and a fine of Rs.10,000/- for the offence punishable under S.449 IPC. Default sentence of rigorous imprisonment for one year, 9 months and one year respectively were ordered for the fine imposed for the offences punishable under Ss.302, 392 and 449 IPC respectively. Substantive sentences were to run concurrently. 2. The Prosecution case, in brief, is as follows : The accused is a native of Trichy. His marriage was scheduled to be solemnized on 27.08.2004. He was a rubber tapper working Cr. A. No.501/06 2 under PW7. The accused was in dire need of money for his marriage. His efforts to raise the same failed. His employer and friends did not oblige him by advancing money to him. So, on 19.08.2004, he murdered Mariamma Teacher, who was staying alone in her house and committed theft of three gold bangles and one gold chain, which are MOS 1 to 4, belonging to the said lady. The appellant sold the bangles in two jewelleries and raised the necessary funds for his marriage. 3. PW2, who is the immediate neighbour of the deceased, found the victim lying in a pool of blood at about 4 pm. People gathered around and PW1, a shop keeper on the opposite side of the road, in front of the house of the deceased, lodged Ext.P1 first information before the Police, based on which, Ext.P1(a) F.I.R. was registered by PW28 Sub Inspector of Police. Thereafter, the investigation was taken over by PW27, Circle Inspector of Police. He conducted the inquest, arranged for autopsy of the body, prepared the scene mahazar and got the scene examined by the Scientific Assistant PW22. He also used the services of the Finger Print Expert PW23. He questioned the witnesses, arrested the accused on 24.08.2004 and based on his confession statement, Cr. A. No.501/06 3 recovered MOs 1 to 3 from the respective Jewelleries, where they were sold. Along with the accused, the Police party went to his native place and seized a bag, which contained MO4 gold chain, which was usually worn by the deceased. Another gold chain, which was stated to be purchased by the accused, after selling Mos1 and 2 and some clothes were also recovered from the house of the accused. These items were kept in a travel bag, with the brand name “Sony” on it, stated to be purchased from Kozhikode. Based on the confession statement of the accused, MO9 knife, used for committing the murder was recovered from the residential premises of the victim. It was stated to be found hidden in a hole on a mud wall, on the north eastern side of the house. PW27, Circle Inspector of Police completed the investigation and laid the charge before the Judicial First Class Magistrate Court-I, Thamarassery. After following the due procedure, the learned Magistrate committed the case for trial by the Sessions Court, Kozhikode, as the offences disclosed were exclusively triable by a Court of Sessions. The learned Sessions Judge made over the case for trial to the IInd Additional Sessions Judge, Kozhikode. Cr. A. No.501/06 4 4. The accused pleaded not guilty to the charges framed by the learned Additional Sessions Judge. The Prosecution, to prove its case, examined PWs1 to28 and marked Exts.P1 to P20. Material Objects Mos 1 to 29 were also got identified and marked. From the side of the Defence, D1, D1(a) and D2, which are the relevant portions of the inquest report, were also marked. While questioned under S.313 Cr.P.C., the accused denied all the circumstances, that were put to him, based on the evidence on record. He further filed a statement, pleading alibi. According to him, he went to his native place on 17.08.2004. But a Police party from Kerala came to his house and took him to Kerala on 22.08.2004. He maintained that he was innocent. 5. The Trial Court, after hearing both sides, found the appellant guilty of the offences and the sentences mentioned above, followed. Feeling aggrieved by the conviction and sentence, the appellant has preferred this Criminal Appeal. 6. The learned Counsel for the appellant took us through the evidence and materials on record and submitted that the case of the Prosecution lacks credence. Special reference was made to the recovery, stated to be made of MOs 1 to 3 from two Jewelleries. Regarding the time of the recoveries, the witnesses have given Cr. A. No.501/06 5 conflicting versions. Further, the case of the appellant that he was arrested on 22.08.2004, is supported by the deposition of PW9. So, the case of the Prosecution that the appellant was arrested on 24.08.2004 and his confession statement was recorded on that day and based on the said confession statement, the recoveries were made, cannot be believed. There is discrepancy regarding the place of recovery of MO9 knife also, it is submitted. Though the Prosecution Witnesses would say that the bag recovered from the house of the appellant was having the brand name “Sony”, the seizure mahazar gives a different name. So, that recovery also comes under the cloud of suspicion. In view of the above facts, the appellant is entitled to get the benefit of doubt, it is pointed out. 7. The learned Public Prosecutor, on the other hand, submitted that the three bangles MOs 1 to 3, which were usually worn by the deceased and MO4 gold chain, which was also usually worn by her, were recovered under S.27 of the Evidence Act, based on the information furnished by the appellant. The two jewellers from whom, MO1 to 3 were recovered, have deposed before Court that the appellant gave them those bangles on 19.08.2004, the date on which, the victim was killed. Further, two witnesses have noticed the Cr. A. No.501/06 6 presence of the accused in the neighbourhood of the victim on the fateful day. There is material on record to show that the appellant was in dire need of money at the relevant time. The weapon recovered at the instance of the accused, under S.27 of the Evidence Act, contained blood stains, which on analysis, was found to be belonging to the same blood group of the deceased. So, these clinching circumstances, which were proved beyond doubt, will drive home the guilt of the appellant and therefore, the Trial Court rightly convicted him, it is submitted. 8. We considered the rival submissions made at the Bar. The fact that the death of the victim Mariamma Teacher, was homicidal, was proved beyond doubt by the evidence of PW21 Dr.Sujith Sreenivas and Ext.P11 postmortem report. The Doctor has deposed that the Injury No.1 inflicted on the neck of the deceased, which cut the throat involving the air passage and major blood vessels, was the cause of death. 9. The next point to be considered is whether there is evidence on record to show that it was the appellant, who committed the crime. The case of the appellant is that he was away at his native place, on the date of the incident. PW5, who claims that he usually plays Cr. A. No.501/06 7 Shuttle Badminton in a ground, opposite to the residence of the victim, saw the accused, standing near the court and watching the play in the morning of 19.08.2004. He has also deposed that the accused was wearing shirt and pants. PW6, who is an employee of a nearby hotel, has deposed that the accused, on 19.08.2004, came to his hotel in the morning at about 7 am. and took break fast from there. Though, those witnesses were cross examined, nothing has been brought out to discredit their version. Though, the learned counsel for the appellant would submit that those witnesses have been procured to give false evidence, we find no reason to endorse the said submission. PW7 is the employer of the accused. He has deposed that the accused had invited him for his marriage, which was scheduled to be solemnized on 27.08.2004. He had also asked for advancing some amount to him, to which, he did not agree. PW7 would further say that on 19.08.2004, when the accused was going home, he said that he was able to meet his requirements of money. Though PW8 was also examined to prove this point, the said witness turned hostile to the Prosecution. 10. That the accused was in the place, on the date of occurrence and that he was in dire need of money, are not facts Cr. A. No.501/06 8 sufficient to implicate him in the crime. But, on the arrest of the accused on 24.08.2004, based on his confession statement, PW11 and his shop was located by the Investigating Officer PW27 and his party. MO2 and MO3 gold bangles, stated to be sold by the accused on 19.08.2004, were recovered from his shop under Ext.P6 mahazar. The said recovery is proved, not only by PW27, but also by PW17, the attester to Ext.P6. On the same day, based on the confession statement of the accused, PW12, who is a Goldsmith working in a Jewellery at Kozhikode was located and MO1 bangle was recovered from there. The said recovery was made under Ext.P7 mahazar. MO1 bangle was stated to be sold by the accused on 19.08.2004. The said recovery was also witnessed by PW17. Another piece of evidence, which would support the case of the Prosecution is the recovery of MO4 gold chain from the residence of the accused, made by the Investigating Officer. PW20, who is an independent witness, who is stated to have gone along with the Police to the native place of the accused, would prove that the mother of the accused produced a bag before the Police party, which contained MO4 also, apart from another gold chain and clothes, apparently kept for the marriage function. Though, based on the time of recovery given by the Cr. A. No.501/06 9 independent witnesses, the learned counsel for the appellant made a strong attack against the recovery under S.27 of the Evidence Act, we find no reason to disbelieve the case of the Prosecution regarding the recovery of MOs 1 to 4. When a fact is proved through witnesses, there are bound to be some contradictions, inconsistencies etc. in their versions regarding the details, which are not material. The contradictions and inconsistencies pointed out in this case, do not affect the veracity of the recoveries made. 11. Now, we will come to the evidence of PW4, the daughter and PW14, the sister-in-law of the deceased. These witnesses have identified MOs 1 to 4 as the bangles and chain, usually worn by the deceased. The identification made by lady witnesses of gold ornaments worn by their near relative, is normally to be believed, unless the defence is able to make some dent on their evidence. We find that those two witnesses have withstood the cross-examination of the defence. It is true, there is a mistake in the evidence of PW4, when she speaks that the studs and gold ring were also missing from the dead body of the victim, but PW14 has correctly spoken that only MOs 1 to 4 were missing. The above aspect in the version of PW4 can only be a mistake. So, we are inclined to believe the Cr. A. No.501/06 10 identification of the above said gold ornaments by PWs 4 and 14. 12. The result of the above evidence is that the accused is found to be in possession of the ornaments worn by the deceased on the date of her death. The accused does not have any explanation for his possession of the above ornaments. Further, he has given a false explanation that on the fateful day, he was away at his native place. Apart from the above clinching materials, there is yet another evidence in the form of a finger print found from the scene of occurrence. On examination by PW23 Finger Print Expert, a fingerprint was found on a glass tumbler. Its photograph was taken, which was produced as MO14 in this case. When PW27 arrested the accused, his fingerprint was taken and on comparing those two finger prints, PW23 has given Ext.P12 report, showing that those fingerprints belong to the same person. So the fingerprint found in the scene of occurrence is yet another evidence, which corroborates the case of the Prosecution. Based on the confession statement, MO9 weapon was recovered from the residential premises of the deceased. It was hidden in a hole in the wall. The said recovery is proved by the Attesting witness PW16, apart from the Investigating Officer, PW27. Ext.P19 FSL report showed that MO9 knife contained Cr. A. No.501/06 11 human blood and its group was 'A', which was the blood group of the deceased. So, this is yet another piece of evidence, which further corroborates the case of the Prosecution. We also notice that as per Ext.P20 FSL report, the hair found on MO9 knife matched favourably with the admitted hairs collected from the body of the victim. This is also a piece of evidence, which further corroborates and supports the case of the Prosecution. We notice that the above circumstances, which are against the accused, have been proved beyond doubt. All these circumstances unerringly point to the guilt of the accused. No theory, consistent with the innocence of the accused is possible in the background of the above proven facts. So, we find no reason to interfere with the Judgment of the learned Sessions Judge, who found the appellant guilty and imposed appropriate punishments on him. In the result, the Criminal Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Cr. A. No.501/06 12 Cr. A. No.501/06 13