IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 CRL.A.No. 2137 of 2005() ------------------------ SC.195/2003 of ADDL.SESSIONS COURT (SPL.COURT), KOTTAYAM .................... APPELLANT(S): ACCUSED NO.2 -------------------------------------------- ALI JISHAN @ JISHAN CHAWHAN, S/O.MOHAMMED AMIL, RESIDING AT 1001, SARAI BAHLEEN, MEERUT (DISTRICT), UTTAR PRADESH STATE. BY ADV. SRI.P.VIJAYA BHANU SRI.A.SAMEER SRI.VIPIN NARAYAN RESPONDENT(S): COMPLAINANT & ACCUSED NO.1: -------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. MANOJ KUMAR, S/O.CHANDANMALGI LALITH KUMAR, CHANDANMALGI HOUSE, KEDABAS THANGATHGUARD DISTRICT, RAJASTHAN STATE. PUBLIC PROSECUTOR SRI. P.N. SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2009, ALONG WITH CRA NO. 2223 OF 2005 THE COURT ON 26/11/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal Nos. 2137 & 2223 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2009. JUDGMENT Bhavadasan, J, Two persons, the appellants in these criminal appeals, were sought to be prosecuted for the offences punishable under Sections 394, 302, 201 and 120B read with Section 34 of the Indian Penal Code. They were found guilty of the offences alleged against them. They were therefore convicted and sentenced to suffer imprisonment for life for the offences punishable under Sections 120B and 302 read with Section 34 of the Indian Penal Code. They were also sentenced to suffer rigorous imprisonment for seven years for the offences punishable under Sections 120B and 394 read with Section 34 of the Indian Penal Code. They were also sentenced to undergo rigorous imprisonment for four years for the offences punishable under Section 120B and 201 read with Section 34 of the IPC. Crl.Appeals.2137 & 2223/2005. 2 2. P.W.1 and P.W.37 are the paternal uncles of Pintu aged 19 years, who was the unfortunate victim in this case. The deceased, P.W. 42, his brother, P.W.1, paternal uncle of the deceased and P.W.6 together occupied Rajadhani Buildings at Gopalaprabhu Road in Ernakulam. P.W.37 who was residing in Asoka Flat was doing business in gold ornaments. Both Pintu and the first accused used to undertake distribution of gold ornaments given by P.W.37 to various jewellery shops in the State. Pintu and the first accused used to supply gold to customers on their demand and receive the price for the same. As usual, on 21.12.2001 also, Pintu met P.W.37 and received the gold ornaments to be supplied to Thekkekara Jewellery at Changanacherry. After taking lunch, he set out to Changanacherry. By about 5 p.m. on the same day P.W.42 contacted Pintu over phone. Pintu told him that he had managed to collect amounts from various jewelleries at Changanacherry. By Crl.Appeals.2137 & 2223/2005. 3 7.30 p.m. Pintu informed him that he was able to collect Rs.6,00,000/- and that he would return soon. Unfortunately Pintu did not return as promised. P.W.42 tried to contact Pintu as night advanced and Pintu did not return. But he was unable to get Pintu. P.W.42 got in touch with P.W.37 and conveyed that though Pintu had called him at about 7.30 p.m. and told him that he was returning home at Ernakulam, he had not come home. P.W.37 asked P.W.42 to get in touch with the friends of Pintu. P.W.42 got in touch with several friends of Pintu, but he got negative replies. He had called the first accused also. But the first accused did not respond. P.W.42 and P.W.30 enquired in the Railway Station and Bus stand. On the next day one Suresh Bhai and P.W.30 went to Changanacherry by about 10.30 a.m. Meanwhile P.W.2 came to the house of Pintu. When news about Pintu was conveyed to him, he said that he had on the previous day contacted Pintu from Mavelikkara Railway Station to ascertain whether Pintu was coming by train to Ernakulam. P.W.2 told P.W.42 that Pintu told Crl.Appeals.2137 & 2223/2005. 4 him that he was not coming by train but in a Maruti Van along with two of his friends. On 23.12.2001 by about 5 p.m. in the evening P.W.5 Anil Kumar had come to the house of Pintu and told P.W.42 that he had occasion to see Pintu getting into a blue Maruti car with Goa registration by about 7.45 p.m. on 22.12.2001. P.W.5 also told him that he had seen first accused sitting in the rear seat of the car. There was yet another person in the car whom he could not recognize. Jagadeesh and Suresh Bhai went in search of first accused and found his house locked. In the meanwhile, on 23.12.2001 by about 1.30 p.m. P.W.1 had laid First Information Statement before the police. A crime was registered under the caption 'man missing'. 3. On 26.12.2001 Jagadeesh happened to see a news item about a dead body found within the jurisdiction of Mulanthuruthy Police Station. P.W.42, Jagadeesh and Praveen Bhai went to the Mulanthuruthy Police Station to ascertain whether the dead body was that of Pintu. They were told that the body Crl.Appeals.2137 & 2223/2005. 5 has been buried. If they so wanted, they can get the body exhumed. P.W.37 made a formal request and the same was allowed. Meanwhile, they had identified M.Os. 1 to 3 recovered from the body of Pintu when his body was found in a canal. When the body was exhumed, it was confirmed that it was Pintu. 4. On 26.12.2001 on getting information P.W.48, the Sub Inspector of Police Changanacherry Police Station reached Mulanthuruthy Police Station. As it was revealed that the body was that of Pintu, a crime was registered as Crime No.372 of 2001 in Mulanthuruthy Police Station. P.W.48 handed over the files in his office to P.W.53, the Circle Inspector of Police, Changanacherry. 5. P.W.53 took over the investigation of the crime. On 27.12.2001 P.W.50 informed P.W.53 that a suspect in the case had been kept under surveillance in the Central Police Station at Ernakulam. P.W.53 immediately reached the Station. The person was none other than the first accused in the case. His interrogation Crl.Appeals.2137 & 2223/2005. 6 and the investigation of P.W.53 revealed the story of a gruesome murder, by the accused, of Pintu for money. Several incriminating articles in the possession of first accused were recovered. Ext.P41 report was filed by P.W.53 before the Changanacherry Magistrate Court furnishing details of the accused and also sought to have offences punishable under Sections 394, 302 and 201 read with Section 34 incorporated. He also filed Ext.P40 report before the R.D.O., Fort Kochi requesting that records of the case may be called for. Later he had Section 120B also incorporated. 6. P.W.53 conducted a search in the house taken on lease by the second accused. He found M.O.24 almirah. He had forcibly opened the almirh and was able to recover M.Os. 14, 15, 16, 18, 19, 23, 25, 26, 27, 36 and 37, which are bundles of currency notes of various denominations. He also had the clothes of second accused seized. On the basis of the information furnished by the first accused and as led by him, M.O.28 chopper was recovered as per Ext.P14 mahazar. On searching the house of Crl.Appeals.2137 & 2223/2005. 7 the first accused, M.Os. 44, 45 and 46, which were bundles of currency notes of various denominations were found. They were seized. M.O.47 air pistol and the currency bundles were seized as per Ext.P31 search list. As per Ext.P32 mahazar M.Os. 48 and 49 belonging to first accused were seized. P.W.53 had utilised the services of P.W.46, who was then working as Scientific Assistant attached to Mobile Laboratory of Kottayam District. On a search conducted in Room No.30 of the Tourist Home where second accused had resided, he was able to recover M.Os.34, 35 and 36 as per Ext.P17 search list. Accused No.2 was not available in station. Enquiry made revealed that he is in prison in connection with an Abkari Case in Meerut. After obtaining a production warrant from the JFCM, Changanacherry, the police officers proceeded to Meerut and got custody of second accused. He was produced before JFCM, Changanacherry and police custody was obtained from court. P.W.53 recorded the statements of witnesses, completed investigation and laid the charge before court. Crl.Appeals.2137 & 2223/2005. 8 7. JFCM, Changanacherry took cognizance of the offence as C.P. 5 of 2003. On appearance of the accused before the said court, all legal formalities were complied with. Finding that the offences were exclusively triable by a court of Sessions, the learned Magistrate committed the case to Sessions Court, Kottayam. The said court made over the case to Additional Sessions Judge (Special), Kottayam for trial and disposal. 8. The latter court on receipt of records issued summons to the accused and they entered appearance. After hearing both sides, charge was framed for the offences punishable under Sections 120B, 302, 201 and 394 read with Section 34 Indian Penal Code. The accused pleaded not guilty and claimed to be tried. Therefore prosecution had P.Ws. 1 to 54 examined Exts.P1 to P44 marked. M.Os. 1 to 76 were identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 of the Criminal Procedure Code. Crl.Appeals.2137 & 2223/2005. 9 They denied all the incriminating circumstances brought out against them and maintained that they are innocent. First accused stated that from 1999 onwards he was dealing in gold ornaments. On every Sunday he collects gold ornaments from Praveen Bhai and distributes to various jewellers in various places. He collects the amounts due and hands it over to Praveen Bhai. On 22.12.2001 he claims to have gone to the 'Highranges' (high altitude places in Idukki District) for business purpose. He returned in the evening. He was given to understand that Mukesh Bhai had visited his house. It appears that Mukesh Bhai had conveyed to the mother of first accused that the son of the sister of his mother was seriously ill. His mother insisted that she should be taken to her house at Kozhikode. On 23.12.2001 at about 5.30 in the morning he and his mother left for Kozhikode. On 26.12.2001 he claims to have returned to the house at Ernakulam. His mother returned with him. While he was watching T.V at about 6 p.m., according to him Praveen Bhai, Anil Metha, Jagadeesh along with Crl.Appeals.2137 & 2223/2005. 10 two other persons came to his house. They invited the deceased to go out as they wanted to have some conversation with him. Even though first accused promised that he would follow in the motor bike, they asked him to go along with them. According to him, he was directly taken to the police station and entrusted to the police. He would complain that he had been falsely implicated. 9. The second accused in his reply has stated that he conducts business in textile along with his brother at Ernakulam. On all days, except Sundays, he goes to various customers and takes orders. Since he was informed that his father was ill, he left for Meerut on 30.12.2001. He returned by 19th of January. After he returned from Meerut he paid the rent to the landlord. While he was carrying on his employment, he would say that on 20.2.2002 he was informed that his father was ill. He left for Meerut on 20.2.2002. He would say that he was nabbed by the police at Meerut. He would say that he has been falsely implicated by manipulating the documents and other records. Crl.Appeals.2137 & 2223/2005. 11 10. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. Except for marking Exts.D1 to D10 at the earlier stage, the accused chose not to adduce any evidence. On an appreciation of the materials before it, the court below found that the prosecution has succeeded in establishing the case against the accused and accordingly conviction and sentence already mentioned followed. The said conviction and sentence are assailed in these appeals. 11. The question that arises for consideration is whether the court below was justified in convicting the accused and sentencing them as already mentioned. 12. The prosecution case is that on 22.12.2001 Pintu, who got into the vehicle owned by accused No. 2 to return home was done away with by the accused, who hatched a conspiracy for the same. The court below has enumerated sixteen circumstances Crl.Appeals.2137 & 2223/2005. 12 which the prosecution sought to prove in order to substantiate the allegations against the accused persons. On an evaluation of the evidence, the court below found that all the circumstances have been convincingly established and held the accused guilty. 13. Heard the learned Public Prosecutor and the counsel for the appellants. 14. Learned counsel appearing for the appellants pointed out that the significant circumstances on which the prosecution relies to prove the case against the accused are as follows: i) Purchase of the Maruti vehicle by Accused Nos. 1 and 2. ii) Deceased Pintu had collected amounts from various jewellers at Changanacherry and Thiruvalla and kept in M.O.4 bag. iii) Pintu was seen getting into the Maruti van belonging to accused Nos. 1 and 2. iv) Pintu did not return thereafter. Crl.Appeals.2137 & 2223/2005. 13 v) Recovery of the chopper, which is said to have been used to attack Pintu. vi) Recovery of the money, which Pintu had collected from the places where accused Nos. 1 and 2 resided. vii) Recovery of M.Os. 5, 6 and 7, the ornaments said to have been worn by late Pintu from one Suresh Bhai at the behest of accused No.2. 15. Learned counsel appearing for the appellants unleashed an attack on the findings of the court below. It is pointed out that even assuming that the accused had purchased a Maruti van, there is nothing to indicate that the said Maruti van was used for the offence. There is no evidence at all in this case, according to learned counsel for the appellants to show that Pintu was taken on the ill-fated day in the Maruti car owned by accused Nos.1 and 2. Even assuming that he had been taken in the Maruti car belonging to accused Nos.1 and 2, there is nothing to indicate that the Maruti van produced before the court was the vehicle Crl.Appeals.2137 & 2223/2005. 14 owned by second accused. There is nothing to show that there was anything special with the van which made it possible to identify it easily. There was only one Maruti van in the compound of the court at the time of trial and the witnesses simply said that that was the vehicle into which Pintu had got in. 16. It was also contended that the Scientific Assistant noticed blood stains all over the places including the Maruti van. But he is not able to collect enough blood for the purpose of grouping. It is difficult to believe his version and this is a deliberate attempt on the part of the prosecution to aid the real culprits. If blood grouping was done, according to the learned counsel for the appellants, it would have revealed that the accused had no role to play in the incident. Emphasis was laid on the fact that the Doctor, who conducted autopsy states that when an injury as the one suffered by late Pintu is caused, there will be spurt of blood and it will splash all around. Here the roof of the car had no blood stains. Going by the medical evidence, it was pointed out Crl.Appeals.2137 & 2223/2005. 15 that, it could easily be seen that the entire prosecution version is untrue. The definite case of the prosecution is that the murder took place inside the van. If that be so, there should have been pools of blood inside the vehicle, which could have been easily detected and collected by the Scientific Assistant. The failure on the part of the prosecution to ascertain the group of blood stains collected shows that the prosecution wants to conceal more than what it reveals. 17. As far as the recovery of money is concerned, it is true that a few jewellers and certain Bank officials have been examined. But there is nothing to show that the respective bundles were given to late Pintu by any of the jewellers. Of course, one witness says that one of the bundles given by him contained a particular sign. The Bank officer, who is said to have given the bundles was examined. He has stated that the alphabet shown on that particular bundle related to a customer of the Bank and all the bundles of notes deposited by him contained those alphabets. Crl.Appeals.2137 & 2223/2005. 16 In short, according to the learned counsel, there is nothing to establish the identity of notes. The court below has also found that the mode of recovery of M.O.4 bag and M.Os. 5, 6 7 etc., cannot fall under Section 27 of the Indian Evidence Act, so also under Section 8. Holding so, the court should not have relied on those items of evidence to hold against the accused. 18. It was contended by the learned counsel for the second accused that even assuming that the second accused had taken a house on rent and also brought an almirah to the building, the same does not lead to the conclusion that the currency notes recovered from that almirah were kept by the second accused. It is stated that by the learned counsel that the almirah was brought into the rented house soon after it was taken on rent and thereafter the evidence is to the effect that the accused had not come there till the date of arrest. If that be so, it is not possible to understand as to how he could have kept the notes in the almirah. These are sufficient to show that the entire evidence regarding recovery of Crl.Appeals.2137 & 2223/2005. 17 notes was a stage managed one. 19. It was also contended by the learned counsel for the appellants that the evidence revealed that the accused persons were also business men, first accused was doing the same business as Pintu and they were considerably rich. It is ridiculous to suggest that they would think of murdering Pintu for a paltry sum of Rs. 5 to 6 Lakhs. 20. Learned counsel pointed out that the above aspects have been omitted to be noticed by the court below and that has resulted in miscarriage of justice. 21. Per contra, learned Public Prosecutor chose to support the judgment of the court below. It was pointed out by him that none of the contentions urged by the learned counsel for the appellants before this court have any basis or foundation. There is clinching evidence to show that Pintu got into the van owned by accused No.2 and thereafter he was found missing. The evidence is also to the effect that the various articles seized during Crl.Appeals.2137 & 2223/2005. 18 investigation were in the possession of the accused persons or were recovered at their behest. The recovery of M.O.4 bag is clinching enough to show the culpability of the accused persons. The bag contained apart from various other things M.Os. 5, 6 and 7, which were the jewellery usually worn by Pintu. According to learned Public Prosecutor, even assuming that Section 27 of the Indian Evidence Act could not be taken aid of, the fact remains that the bag was recovered from one Suresh Bhai at the behest of the second accused. In fact the second accused had knowledge that the bag had been entrusted to Suresh Bhai by the first accused. This item of evidence, according to learned Public Prosecutor could not be ignored as suggested by the appellants. Equally fallacious is the contention based on identity of notes. The jewellery owners from whom Pintu had collected amounts had deposed before court about the payment of money. The respective Bank officers have also been examined. But the identification by various witnesses of the respective bundles and also the fact that Crl.Appeals.2137 & 2223/2005. 19 one of the jewellers has been able to identify the bundles of notes given by him to Pintu as those bundles contained the wrappers with letters 'TJ' goes in favour of the prosecution. The learned Public Prosecutor pointed out that the recovery has to be viewed in the facts and circumstances of the case and not in isolation. There is nothing to indicate that the amounts so recovered by the investigating officer belong to the accused persons. 22. It was pointed out by the learned Public prosecutor that the vehicle was recovered a few days after the incident and therefore it is idle for the accused persons to contend that as the vehicle did not show pools of blood in it, the evidence should be discarded. Learned Public Prosecutor pointed out that the evidence by the Scientific Assistant and the mahazar concerned will clearly show that the Scientific Assistant was able to trace blood stains from several portions of the vehicle as well as the room occupied by 2nd accused. To take an answer in isolation and then generalizing it would be preposterous. Learned Public Crl.Appeals.2137 & 2223/2005. 20 Prosecutor also pointed out that the contention based on the almirah taken by the second accused is only to be rejected. There is convincing evidence to show that the house in which M.O.24 almirah was found was taken on rent by the second accused and also that the almirah had been recently purchased by him. Attention was drawn by the learned Public prosecutor to the fact that the key of the almirah was not available and it had to be broken open. According to the learned Public Prosecutor, it is ridiculous to suggest that the notes would have been planted by the investigating agency in the almirah to manage false recovery. 23. There can be no dispute regarding the fact that the case is built on circumstantial evidence. In a case built on circumstantial evidence, direct proof of the culpability of the accused is often lacking. When the case rests on circumstantial evidence, the circumstance must be cogently and firmly established. The circumstance must point inescapably towards the guilt of the accused and the accused only, forming an unbroken Crl.Appeals.2137 & 2223/2005. 21 chain of evidence ruling out a reasonable likelihood of the innocence of the accused. Where any link in the chain is missing, the accused is entitled to benefit of doubt. In a case of circumstantial evidence, the prosecution must establish different circumstances beyond reasonable doubt and all those circumstances taken together must lead to no other inference except the guilt of the accused. When the circumstances lead to two equally possible inferences, the inference that goes in favour of the accused is usually accepted. The graver the offence, stricter the proof. When a case rests on circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, must form a chain so complete that there is no escape from the Crl.Appeals.2137 & 2223/2005. 22 conclusion that within all human probability the crime was committed by the accused and none else, in other words the circumstances must be incapable of explanation on any reasonable hypothesis other than that of the guilt of the accused; and (4) such evidence must not only be consistent with the guilt of the accused but must be inconsistent with his