IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 CRL.A.No. 1877 of 2006() ------------------------ SC.141/2002 of ADDL. SESSIONS COURT (ADHOC-I), KALPETTA .................... APPELLANT(S): -------------- DASAN @ VISWAMBARAN, CONVICT NO.2872, CENTRAL PRISON, KANNUR. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT(S): --------------- STATE OF KERALA. PUBLIC PROSECUTOR SRI.NOBLE MATHEW PUBLIC PROSECUTOR SRI.MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ************************* Crl.Appeal No.1877 of 2006 ****************************** Dated this the 29th day of January 2010 JUDGMENT BASANT, J. Whether the prosecution has succeeded in establishing the charge against the accused on the basis of evidence of circumstances adduced against the appellant/accused is the short question to be considered in this appeal. 2. The appellant Dasan @ Viswambharan in this appeal assails the verdict of guilty, conviction and sentence imposed on him in a prosecution for offences punishable under Sections 449, 392 and 302 I.P.C. He faces the sentence of rigorous imprisonment for a period of 7 years, 7 years and imprisonment for life respectively for the said offences. In addition, he faces sentence of fine to pay Rs.10,000/- each for the said offences and in default to undergo R.I for a further period of one year each. 3. The crux of the allegations against the appellant/accused is that on 02.12.1997 at 12 mid night, he trespassed into the residential building of deceased Suseela, aged 45 years, the mother of PW1. He is alleged to have committed theft of costly gold ornaments including M.Os 6 and 7 by use of physical force. He is alleged to have inflicted fatal Crl.Appeal No.1877 of 2006 2 injuries on the deceased and murdered her by smothering and strangulation. 4. PW1, the daughter of the deceased came to know of the death on the next morning and she lodged Ext.P1 F.I statement before the police. The F.I statement was lodged at 9 a.m on 03.12.1997, the incident having taken place earlier on the night intervening 02.12.1997 and 03.12.1997. Ext.P1(a) F.I.R was registered and investigation commenced on the basis of that F.I.R. Investigation was completed and PW14, a police official filed final report raising allegations against the appellant/accused. 5. Consequent to denial of the charge by the appellant/accused, the prosecution examined PWs 1 to 15. Exts.P1 to P20 and M.Os 1 to 15 were marked. On the side of the accused, he examined a witness as DW1. 6. We shall now briefly narrate the evidence relied on by the prosecution and the accused. PW1, as stated earlier, is the daughter of the deceased. The deceased had a strained relationship with her husband and was residing separately from him for a fairly long period of time. Her daughter PW1 was married and she along with her husband was residing in an Crl.Appeal No.1877 of 2006 3 adjacent house at a distance of about 150 metres from the residence of the deceased. PW1 was examined to prove that M.Os 6 and 7 gold ornaments belong to her mother, she having purchased the same under two bills, which she had produced before the Investigating Officer and which the Investigating Officer had seized under Ext.P2. PW1 had come to know of the death of her mother on the next morning when persons who went to the house to call the deceased to go along with them for her daily work found no response from the house. Ext.P1 is the F.I statement lodged by PW1 before the police at 9 a.m on 03.12.1997. Ext.P1(a) is the F.I.R registered and that had reached the court at 5 p.m on the same day. Though Ext.P2 seizure mahazar was proved, the bills seized under Ext.P2 seizure mahazar, which allegedly were produced before the Magistrate, were not traceable. The prosecution could not hence mark the same. 7. PW2 is a neighbour of PW1 and the deceased. She was working as a house maid elsewhere. She came to her native place on coming to know of the death of the deceased. She revealed to the police when she was questioned on 05.12.1997 that the accused was guilty of a similar misadventure against her Crl.Appeal No.1877 of 2006 4 - of snatching away her gold chain one night, on an earlier occasion. The prosecution relied on the evidence of PW2 to apprise the court of the circumstance under which the suspicious eye fell on the appellant. PWs 1, 2 and the deceased were residing in different houses in a Laksham Veedu Colony and the accused was also occupying one of the houses in that colony. PWs 3 and 4 are attestors to Ext.P3 scene mahazar. PW5 is a finger print expert attached to the police. He was examined to prove that at the request of the Investigating Officer, he had inspected the scene of the crime on 03.12.1997 itself. According to him, he had found chance finger prints on M.O 13, a glass kerosene lamp, which was available at the scene. That was developed by him. At the instance of the Investigating Officer he examined that chance finger print and compared the same with the specimen finger print of the deceased. They did not tally. He compared the specimen finger print of the accused which the Investigating Officer sent to him and according to him the same tallied. Ext.P4 is the photographic enlargement of the finger print which was available in M.O 13 whereas Ext.P5 is the photographic enlargement of the specimen finger print of the appellant obtained by the Investigating Officer after his arrest. Crl.Appeal No.1877 of 2006 5 Comparing the two, Ext.P6 opinion was tendered by PW5 to say that 2 finger prints were of the same person. PW5 had, before getting the specimen finger print of the accused, compared the chance finger print with finger prints of known criminals available in the records. None of them tallied with the chance print. 8. PW6 is an attestor to Ext.P2 seizure mahazar under which the bills for purchase of M.Os 6 and 7 issued by the jeweller were seized by the Investigating Officer when they were produced by PW1. We have exhaustive details about the bills in Ext.P2. But as stated earlier, the bills were not available when the matter came up for trial. Those bills which were produced before the Magistrate were not sent to the Sessions Court and could not be traced in spite of the efforts of the learned Sessions Judge to trace them. PW7 is the salesman of the jewellery to whom the bills were shown and statement recorded. He was examined to prove the sale of M.Os 6 and 7 to the deceased as per those bills seized under Ext.P2. PW8 police constable is an attestor to Ext.P7 seizure mahazar under which M.O 13 which was taken from the scene of the crime by PW5 was produced by him after examination before the Investigating Officer. Crl.Appeal No.1877 of 2006 6 9. According to the prosecution, the accused was arrested on 05.12.1997 and when he was so arrested he had injuries on his person. He has got examined by PW9 who issued Ext.P8 wound certificate after such examination. PW9 stated further that he had taken the sample scalp hairs and nail clippings of the accused and had handed over the same to the Investigating Officer. PW10 is the doctor who conducted postmortem examination on the body of the deceased. Ext.P9 is the postmortem certificate issued by him on 04.12.1997. It would appear that at that stage, ie. initially, there was an apprehension that the deceased may have been subjected to sexual harassment. Vaginal swab and smear was taken for examination. Ext.P10 is the report of the examiner, which shows that there was no semen or spermatozoa detected in such vaginal swab and smear. 10. PW11 is the village assistant who prepared Ext.P11 scene plan on the basis of Ext.P3 scene mahazar. According to the prosecution, the deceased had many injuries on her person and that suggests a scuffle/altercation before she suffered death. It is in this context that the prosecution relied on the injuries on the person of the accused found at the time of his arrest Crl.Appeal No.1877 of 2006 7 recorded by PW9 in Ext.P8. 11. After the arrest of the accused, he was interrogated by the Investigating Officer PW14. He allegedly gave a confession statement. In such confession statement, he allegedly furnished Ext.P12(a) and P13(a) information to PW14. On the basis of such information, M.Os 6 and 7 were recovered from the place of concealment as pointed out by the appellant under Ext.P12 seizure mahazar. M.O 15 lungi, which the accused was allegedly wearing at the time of the alleged incident, was also recovered on the basis of Ext.P13(a) information under Ext.P13 by the police. It appears that the police expected that an examination of the fibres on the clothes worn by the deceased and M.O 15 lungi might afford crucial information and that explains why M.O 15 was seized. No such fibres were detected on scientific examination by the expert. 12. PW13 recorded Ext.P1 statement of PW1 and registered Ext.P1(a) F.I.R. PW14 conducted the investigation completely - except laying of charge which was done by PW15, his successor. PW14 proved Ext.P17 inquest report. Under the inquest report, he had also seized some strands of hairs which were available clutched in the palm of the deceased. He had Crl.Appeal No.1877 of 2006 8 submitted Ext.P18 report to court to clarify certain inaccuracies which had crept in PW1's previous statements. Ext.P19 is the forwarding note and P20 is the Chemical Examiner's report. Chemical Examiner reported that the strands of hairs which were found in the palm of the deceased were similar and identical to the specimen hair of the accused and that they were not similar and identical to the specimen hairs of the deceased. 13. After the close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. The accused took up a defence of total denial. According to him, he was not in any way responsible for the injuries found on the deceased or her death. According to him the police had unnecessarily and vexatiously taken him into custody on 03.12.1997 itself. He was kept in illegal custody till 05.12.1997. Thereafter his arrest was recorded and he was produced before the learned Magistrate on 06.12.1997. During this period, he was subjected to physical violence in custody. That is how he suffered the injuries described in Ext.P8 by PW9. He, it appears, did not strain to dispute the finger prints available on M.O 13, but took the stand that he was forced and compelled to give his finger print on M.O 13 while he was in custody. The accused, as stated earlier, Crl.Appeal No.1877 of 2006 9 examined DW1. DW1 is a neighbour. She was examined to show that she was present when police came to the scene of the crime in that morning and that she had helped to clean up the clothes of the deceased. She is a resident of the Laksham Veedu Colony and the neighbour of the deceased, PW1 and the accused. According to her, there used to be quarrels between PW1 and her husband on the one side and the deceased on the other. She further stated that the accused had also come to the scene of the crime on that morning suggesting that there was no reason to suspect him. She further supported the case of the accused that the accused was taken into custody on 03.12.1997 itself by the police. According to her, she had gone to the police station along with the wife and children of the accused as directed by the police and she had seen the accused in the police station when she so made a visit to the police station. 14. The learned Sessions Judge on an anxious consideration of all the relevant circumstances came to the conclusion that the prosecution has succeeded in establishing clinching circumstances which unerringly point to the guilt of the accused. In these circumstances, notwithstanding the absence of direct testimony about the involvement of the Crl.Appeal No.1877 of 2006 10 accused in the crime, the court took the view that the circumstances unerringly afford indirect evidence to enter a safe conclusion of guilt against the appellant/accused. Accordingly the court below proceeded to pronounce the impugned verdict of guilty, conviction and sentence. 15. We note that 2 appeals have been preferred by the appellant - both through the prison authorities. The earlier one was numbered as Crl.Appeal No.766 of 2006 and the same was admitted and it was directed that a counsel on State Brief shall render assistance to the appellant. Without taking note of that, this appeal filed as Crl.Appeal No.1877 of 2006 was also received on file and admitted. A counsel - Advocate Sachidananda Pai has entered appearance on behalf of the appellant/accused. In these circumstances, we are proceeding to dispose of Crl.Appeal No.1877 of 2006 on merits. Crl.Appeal No.766 of 2006 is dismissed as unnecessary as the challenge is being considered in this Crl.Appeal No.1877 of 2006. 16. We have heard the learned counsel for the appellant Sri.Sachidananda Pai and the learned Public Prosecutor Sri.Noble Mathew. The learned counsel for the appellant contends that the learned Sessions Judge has erred grossly in Crl.Appeal No.1877 of 2006 11 coming to the conclusion that certain circumstances have been established satisfactorily against the appellant. It is the further contention of the learned counsel for the appellant that those circumstances, even if it is assumed that they have been established, are not sufficient to come to a safe conclusion/inference about the culpable responsibility of the appellant for the murder of the deceased. 17. The learned Public Prosecutor on the contrary contends that the circumstances have been established satisfactorily and the cumulative effect of all these circumstances unerringly point to the guilt of the accused and rules out every possible hypothesis of innocence of the appellant/accused. 18. We shall now refer to the circumstances relied on by the prosecution and shall proceed to consider the arguments for and against the acceptability and relevance of these circumstances. The circumstances are: i) Deceased Suseela was found dead at her house on the morning of 03.12.1997 and she had died as a result of strangulation and smothering. She did not have on her body at that time M.O 6 and 7 ornaments which she usually wears. ii) The appellant was a neighbour of the deceased Crl.Appeal No.1877 of 2006 12 residing in the same Laksham Veedu Colony. iii) The appellant had indulged in an identical misadventure against PW2, who was at that point of time residing in the very same Laksham Veedu Colony in an adjacent house. iv) Finger prints of the appellant were found on M.O 13 glass kerosene lamp in the house of the deceased and no acceptable explanation is forthcoming for such presence of the finger print of the appellant. v) When the body was found, the injuries on the body indicated a scuffle and certain strands of hairs were found in the palm of the deceased which strands of hairs are found to be similar and identical to the specimen scalp hair of the accused obtained during investigation. vi) M.Os 6 and 7 belonging to the deceased, which were found missing when her dead body was found on the morning of 03.12.1997 were recovered by PW14 under Ext.P12 on the basis of information furnished by the appellant to the police in her confession after his arrest. vii) There were unexplained injuries on the person of the accused when he was arrested on 05.12.1997. Crl.Appeal No.1877 of 2006 13 19. We shall now proceed to consider each of these circumstances. Coming to the first circumstance we find absolutely no controversy at all. That the deceased had the injuries described in Ext.P9 postmortem certificate on her is established satisfactorily. That these injuries could be suffered in the course of an attempt of strangulation and smothering is also convincingly established by the evidence of PW10. There is absolutely no dispute or quarrel on this aspect. We do, in these circumstances, hold that the first circumstance has been established satisfactorily. We shall later advert to the controversy regarding M.Os 6 and 7 when we deal with circumstance No.vi. 20. About the second circumstance relied on by the prosecution also, there is absolutely no dispute. The evidence of DW1 clearly shows that it is the common case of both the accused and the prosecution that accused was a resident of the locality - of the same Laksham Veedu Colony. The second circumstance is also thus established satisfactorily. Contention is raised laboriously that the oral evidence of PW2 deserves to be rejected. It is contended that there is incongruity in her version as to the date on which she was questioned and about the date of Crl.Appeal No.1877 of 2006 14 arrest of the accused thereafter. She had initially stated that she was questioned on the second day after the death of the deceased. Later she stated that she was questioned on the third day. According to her the accused was arrested after 2 days of her questioning. We find no merit in this contention. This is only an attempt to make a mountain out of a mole hill. It would be idle to place any crucial significance on her statement of the precise date on which she was questioned. Evidently her statement on those aspects cannot be preferred to the statement of the Investigating Officer who tendered evidence of the sequence of events with reference to official documents. No crucial significance can be attached to her evidence about the number of days that elapsed between the death of the deceased and her questioning. She stated vaguely that she was questioned two days after the incident. Later she stated the number of days as three days. Death occurred on the night of 02/12/1997 and if PW2 states that she was questioned two days or three days after the death, the case of the prosecution that she was questioned on 05/12/1997 is not contra indicated. Similarly, her statement that the accused was arrested two days after she was questioned cannot also be reckoned as accurate. Crl.Appeal No.1877 of 2006 15 She does not speak by the clock or calender. Her statement can be reckoned as only an approximate statement. In these circumstances, the laborious attempt made by the learned counsel for the appellant that the version of PW2 disproves the case of the prosecution that the appellant was arrested on 5/12/1997 cannot be accepted. The learned Public Prosecutor, relying on the following observations in paragraph 33 of State of Maharashtra v. Siraj Ahmed Nisal Ahmed [2007(5)SCC 161] contends that the courts cannot attach undue importance to insignificant inadequacies or disagreements between witnesses. “Para.33:.............................................................. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hyper technical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit Crl.Appeal No.1877 of 2006 16 rejection of the evidence as a whole.” We agree with the learned Public Prosecutor completely that a court has to find out whether the evidence of witnesses are intrinsically acceptable. Once it is found to be acceptable intrinsically and on broad probabilities, the criticism against the evidence of witnesses will have to be gone through realistically to ascertain whether any reasonable doubt is generated thereby. 21. Coming to the third circumstance, the counsel for the appellant argues and we agree that it may not be correct in this prosecution to enter a positive finding as to whether the allegation of PW2 about the alleged earlier misadventure by the accused is correct or proved. We are not adjudicating the guilt of the accused in that earlier alleged incident. Circumstance No.iii is relied on by the prosecution not to prove the earlier incident, but only to satisfy the Court as to why and under what circumstances the needle of suspicion was pointed at the accused. PW2, as the case diary statement and the evidence of PW14 show, had come to her house in the Laksham Veedu Colony on coming to know of the death of the deceased. She was allegedly questioned on 05.12.1997. The accused was arrested later on that evening itself. Without embarking on a detailed Crl.Appeal No.1877 of 2006 17 discussion as to whether the allegation of PW2 against the accused is true or correct, we can safely come to the conclusion that on 05.12.1997 when PW2 was questioned, she had parted with this information to PW14 which generated serious doubt in the mind of the Investigating Officer about the involvement of the appellant/accused in the incident of murder of the deceased. To this extent, and to this extent alone, we hold that the third circumstance relied on by the prosecution is also proved. 22. The 4 remaining circumstances are crucial and vital. We now take up the fourth circumstance. The prosecution alleges that the chance finger print on M.O 13 - a glass kerosene lamp, in the house of the deceased was that of the appellant. The unexplained presence of the finger print of the appellant on M.O 13 is relied on by the prosecution to contend heavily that the appellant must have present in the house on that night and must have been responsible for the crime that occurred in the house of the deceased on that night. The appellant does not now dispute that the finger print on M.O 13 is not his. He accepts the same and contends that the same happened to be there because he was compelled to put his impression on M.O 13 under duress after his arrest. Crl.Appeal No.1877 of 2006 18 23. The learned counsel for the appellant has seriously challenged the evidence of the prosecution relating to MO13. We shall advert to the various circumstances relied on by the learned counsel for the appellant. 24. First of all it is contended that in Ext.P17 inquest report, there is nothing to show that MO13 was seized by the police. The learned counsel for the appellant proceeds to further argue that an exhaustive perusal of Ext.P17 will not even suggest that any chance finger print was detected on MO13 by either the investigating officer PW14 or the finger print expert PW5. We find that this submission is factually correct. Evidence reveals that the finger print expert PW5 was, at any rate, available at the scene of the crime before Ext.P17 was completed. The learned counsel for the appellant laboriously points out that a piece of conduct claimed to have been performed by PW5 is seen recorded in Ext.P17. In column 19(b), it is stated that the finger prints of the deceased was taken by the finger print expert. Column 19(b) of Ext.P17 thus clearly shows that the finger print expert was available before PW14 closed Ext.P17 inquest report. Crl.Appeal No.1877 of 2006 19 25. We have gone through Ext.P17 in detail. We do note that in Ext.P17 the presence of MO13 is indicated in page 12 of the inquest report. The availability of a glass kerosene lamp is stated by interpolation