IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 CRL.A.No. 124 of 2004(A) ------------------------ SC.318/2002 of Addl. Sessions Court (Adhoc-II), Ernakulam. C.P.No.6/2002 of Addl. Chief Judicial Magistrate's Court, Ernakulam .................... APPELLANTS/ACCUSED: ----------- 1. MANI S/O. KOCHAPPI, KAITHAMANAPPADOM VEEDU, NETTOOR DESOM, NEAR PATTUPURAKKAL TEMPLE, MARADU VILLAGE. 2. VIJU S/O. MANI, DO. DO. DO. BY ADV. SRI.JOSY ANTONY SRI.S.RAJEEV RESPONDENT/COMPLAINANT: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CR.NO.148/2001 OF PANANGAD POLICE STATION) BY PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- CRL. APPEAL NO. 124 OF 2004-A ----------------------------------------- Dated 4th July, 2008. JUDGMENT Balakrishnan Nair, J. The accused, aggrieved by the conviction and sentence imposed on them by the Additional Sessions Judge, Adhoc – II, Ernakulam for the offence under Section 302 of the I.P.C., have come up in appeal. 2. The prosecution case in brief is as follows: The appellants are father and son. They were living along with Mythili, the wife of the 1st appellant and mother of the 2nd appellant, and the elder son of the 1st appellant Mr.Seju, in their house. The said Mr.Seju suddenly disappeared on 15.12.2000. The accused spread word in the locality that he has gone to Kuwait, on getting employment there. While so, PW4, a friend of Mr.Seju handed over Ext.P3 petition before the Panangad Police Station, pointing out his suspicion about the mysterious disappearance of his friend. The police questioned the accused and on finding that they have done away with Mr.Seju, arrested them at 9 p.m on 8.7.2001. They confessed that the 1st CRA 124/2004 2 appellant hit Seju using a hammer twice. He succumbed to the injuries at 12 O'clock on 14.12.2000. The said Mr.Seju was a drunkard and he was spending money recklessly. Even the money, which the 1st appellant, who is a employee of the Military Engineering Service, took as a loan from his Provident Fund Account for constructing the residential building, was also taken away by him. This led to a heated exchange of words between the deceased and the 1st appellant and following that the murder took place. With the help of the 2nd appellant, the body was concealed in their residential building for one day and during the night of 15.12.2000 a pit was dug in the courtyard on the south western corner of their residential building and in that pit the body of Seju was buried. Based on the said confession, the police made arrangement for exhumation of the body. The Sub Divisional Magistrate, Fort Kochi was informed. The local Tahsildar PW13 and P.Ws. 1 to 3, who were respectively the Ward Member, President and Vice-President of Maradu Grama Panchayat, where the appellants are residing, were present in the morning on 9.7.2001, in the premises of the residential building belonging to the appellants. A large number of public, apart from a contingent of police force, were also present. In their presence, the place pointed out by the appellants was dug. A body of a human being wrapped in a mat and tied by coir was recovered. It was in a highly CRA 124/2004 3 decomposed stage. The body was placed on a table and the Tahsildar present conducted the inquest and Ext.P1 report was prepared. The Police Surgeon present on the occasion, PW19 did the post-mortem examination there itself and Ext.P27 report was prepared. The various pieces of clothes found on the body were recovered under a mahazar. The skull and mandible (lower jaw) were also recovered and preserved. The clothes worn by the accused and the hammer used for inflicting injury on the deceased were recovered. Altogether 7 items were sent for chemical analysis. It was found that except item No.6, others contained human blood belonging to A positive group. Item No.6 is the lungi, which was worn by the second appellant when he was arrested on 8.7.2001.The same did not contain any human blood. Based on the superimposition test, PW22 gave the opinion that the skull belonged to Seju, the son of the 1st appellant. The investigating officer questioned the witnesses, obtained the aforementioned reports from the concerned authorities and laid the charge before the Additional Chief Judicial Magistrate, Ernakulam against the appellants for the offences punishable under Sections 302 and 201 read with Section 34 of the I.P.C. The learned Magistrate committed the case for trial to the Sessions Court, which was made over for trial to the Additional Sessions Court (Adhoc – II), Ernakulam. The appellants pleaded not guilty to the CRA 124/2004 4 charges framed by the learned Additional Sessions Judge. From the side of the prosecution, P.Ws. 1 to 25 were examined and Exts.P1 to P37 were marked. Material objects 1 to 8 were also produced. The accused were questioned under Section 313 of the Cr.P.C., on the materials against them in the evidence tendered by the witnesses. They submitted that they are innocent and they have nothing to do with the offence. No witness was examined from the side of the defence. 3. The learned Additional Sessions Judge after hearing both sides, found the appellants guilty under Section 302 read with Section 34 of the I.P.C., and sentenced them to undergo imprisonment for life. Though they were found guilty under Section 201of the I.P.C also, no separate conviction or sentence was ordered for the said offence. In this appeal, the appellants challenge their conviction and the sentence imposed on them on various grounds. 4. The learned counsel for the appellants submitted that the case against the accused was sought to be proved, based on circumstantial evidence. He pointed out the well-settled principle that all the circumstances should consistently point to the guilt of the accused and no circumstance, which is inconsistent with his guilt should be there. The learned counsel also pointed out that no witness examined before the court CRA 124/2004 5 has spoken regarding the bickerings between the deceased and the appellants. There was no evidence to show that there was ill-will between them and no material, whatsoever, has been brought up by the prosecution to show the motive behind the murder. So, when the guilt of the accused is sought to be established by circumstantial evidence, the absence of legal proof of motive is fatal to the prosecution With specific reference to the deposition of various witnesses, the learned counsel for the appellants pointed out that no one has spoken regarding any ill-will between the father and the son. He also submitted that there is no reliable evidence to show that the body was recovered from the place pointed out by the accused. PW1 would say, the digging started at the place pointed out by the 1st accused. PW2 would submit that she did not see whether the digging started at the place pointed out by the accused. PW3 stated that the digging was done at the place pointed out by the accused. The official witness PW13, who was also present there, does not say, who pointed out the place for digging. So, the learned counsel submitted that the versions of different witnesses are conflicting and it is quite unsafe to rely on their evidence, to find that the place where the body was buried, was pointed out by the appellants/accused. He also pointed out that the recovery of hammer, stated to be concealed along with some brooms and a plastic can, does not inspire CRA 124/2004 6 confidence. The alleged incident took place on 14.12.2000 and the recovery was made on 9.7.2001. It cannot be believed that the hammer, which is an implement available in every house, was kept concealed for about seven months in their residential house. The learned counsel further pointed out that many of the bones in the body were missing. If a person was killed and buried immediately, there is no reason for missing any of the bones. So, the recovery of the body without all the bones, raises suspicion about the case of the prosecution. The learned counsel also pointed out that in the house of the appellants, Smt. Mythili, the wife of the 1st appellant was also residing. Even assuming the deceased met with a homicidal death in the house, there is not even an iota of evidence to show, who struck the fatal blows. It may be the 1st appellant or the 2nd appellant or Smt. Mythili. Unless there is some clinching or direct evidence as to who dealt with the blow, it is quite unsafe to convict the appellants for the offence under Section 302 of the I.P.C. It is submitted that the accused was arrested, admittedly, after the lapse of six months from the alleged date of occurrence. The lungi worn by the 1st appellant was found to contain human blood belonging to A positive group. There is possibility of the 1st appellant's blood finding a place in his cloth, owing to some injury. To rule out the same, the prosecution should have proved what is the blood group of the 1st appellant. The same is an CRA 124/2004 7 important missing link in the evidence of the prosecution, it is pointed out. The learned counsel also attacked the procedure followed by the expert in the superimposition test. The skull was identified as that of the deceased by the expert, PW22, based on eight parameters. They are the following: “(1) The eyeballs were within the orbital cavities. (2) The eyebrows corresponded to the upper orbital margins. (3) Nasion corresponded to the root of nasal bone. (4) The nasal spine was just above the tip of nose. (5) The upper alveolar margin was just below the tip of nose. (6) The gonions corresponded to the maxillary eminences. (7) Gnathion corresponded to the symphysismenti. (8) The outlines of the jaws and jaw bones were congruous grantin, due allowance for soft tissue thickness.” 5. The learned counsel for the appellant pointed out that parameter 6, which deals with gonions, is not one which is followed by other authorities/experts in the field. It has come out in the cross-examination of PW22 that certain other experts prefer to compare gonions with angle of mandible. Maxilla is upper jaw and mandible is lower jaw. In support of that submission, the learned counsel relied on the “Principles and Practice of Forensic Medicine” written by Dr.Umadethan. If one of the parameters concerning anatomical landmarks does not correspond with anthropological landmarks, the opinion regarding the identity has to be given in the negative. Since one of the parameters followed by the expert, PW22 is not recognised by the later authorities, the appellants are entitled to get the CRA 124/2004 8 benefit of doubt, it is submitted. 6. The learned Public Prosecutor fully supported the judgment of the learned Additional Sessions Judge. It is pointed out that the appellants were residing in a small plot of land having an extent of six cents only. It is a thickly populated area. In their courtyard no stranger can bring and bury a dead body. No stranger will think of their courtyard as a suitable place for concealing a dead body also. Apart from the deceased and the mother of the deceased, who is mentally ill, only the appellants were residing. So, it can be safely and rightly concluded that it was they, who concealed the body. From the post-mortem report, it is clear that the deceased suffered two ante mortem injuries on his head, which could be caused by using a heavy object like the hammer. This is evident from Ext.P27 post-mortem report. The chemical analysis showed that there were traces of human blood belonging to A positive group on the hammer, which was marked as M.O.7. The conduct of the accused/appellants in not making any complaint before the authorities concerning the missing of the son of the 1st appellant, is also a circumstance, which will point to the guilt of the accused. Though there is no positive evidence that they spread some story regarding the disappearance of the deceased, it is evident from the facts of the case that they kept silence regarding his disappearance for more than six months. CRA 124/2004 9 Having regard to the circumstances of the case, it can be safely inferred that it was the appellants, who inflicted the fatal injury on the deceased. There is no reason to disbelieve the recovery of the hammer, in view of the finding of blood stain on it. It is also submitted that the recovery was made on 9.7.2001 itself, in the presence of so many people. Therefore, manipulation by the police concerning the recovery has to be ruled out. The learned Public Prosecutor has also submitted that the authorities cited by the learned counsel for the appellants concerning the superimposition test do not say that if the gonions correspond with the upper jaw, it is a wrong test. Some authorities follow the method of comparison of gonions with upper jaw, whereas the authorities cited by the appellants compare the same with the lower jaw. No authority has been produced to show that the comparison made by one school or authority or the other school or authority is wrong. According to the learned Public Prosecutor, the deposition of the expert witness stands unscathed, notwithstanding the virulent cross-examination made by engaging an expert in the field. So, he prayed for confirming the conviction. 7. We notice that PW1, the ward member of the local Grama Panchayat, who was present at the time of exhumation, stated that the digging was done at the place pointed out by the 1st accused. PW2, the CRA 124/2004 10 President of the local Grama Panchayat stated that the digging was done at the place shown by the accused. She does not say whether it was pointed out by the 1st accused or the second accused. PW6, though hostile, has spoken to the fact that the appellants are residing in a six cents plot with a house therein and it is a thickly populated area. The hammer recovered from the house, on analysis, contained blood stains belonging to A positive group. On analysis, the pieces of cloth recovered from the dead body were also found to contain human blood belonging to A positive group. The said circumstance coupled with the opinion of the doctor, who conducted the post-mortem examination that the ante mortem injuries found on the head of the deceased can be caused by a weapon like M.O.7 hammer, points to the fact that some one present in the house might have used that hammer to cause homicidal death of Seju. Going by the evidence of PW22 and the report concerning superimposition Ext.P31, we feel that the same inspires confidence. The cross-examination as well as the arguments of the learned counsel for the appellants have not brought out any circumstance weakening the report, though, as mentioned earlier, one of the parameters followed, that is, comparison of the gonions differ, in the opinion of different authorities. But, they do not say that the comparison of gonions made with the upper jaw is an unsafe test, thereby weakening the superimposition test. CRA 124/2004 11 In the cross-examination the said expert witness stated that it was the best fit case where all the parameters tallied. We find no reason to discard the evidence of the said witness or the superimposition certificate. So, we affirm the finding of the court below that the body found was that of Seju, the elder son of the 1st appellant. If that be so, when his body is found to be buried in the courtyard of the residence of the appellants, it can be safely presumed that they knew how he died and to screen the offender, they have buried the body. Without the knowledge of the 1st appellant, the 2nd appellant cannot bury the body there, nor the 1st appellant can bury the body without the knowledge of the 2nd appellant, having regard to the circumstances of the case. So, they have jointly or one of them with the help of the other has buried the body of Seju, who suffered a homicidal death. But, with the materials on records, it cannot be inferred as to who dealt with the fatal blows on the deceased. It may be the 1st appellant or the 2nd appellant or even the mentally insane lady. But, in the absence of any clinching circumstance, pointing to the guilt of one or more of them, it is quite unsafe to convict them for the offence under Section 302 of the I.P.C. Mere suspicion cannot take the place of evidence. The circumstances proved are not sufficient to enter a finding of guilt against them, for the offence under Section 302. The absence of proof of motive is also staring at CRA 124/2004 12 the face of the prosecution. 8. Next we have to examine is whether the appellants can be convicted under Section 201 of the I.P.C. Now, it is well settled that even if the accused is acquitted of the main offence, he can be convicted of the offence under Section 201 of the I.P.C., in view of the decision of the Apex Court in Tresa v. State of Kerala [2001(1) KLT 781]. We have already noticed that the trial court has found them guilty of the offence under Section 201. So, the point to be decided by us is whether that finding can be affirmed. Section 201 of the I.P.C reads as follows: “201. Causing disappearance of evidence of offence, or giving false information to screen offender:-- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence:-- shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life:-- and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; CRA 124/2004 13 if punishable with less than ten years' imprisonment:-- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.” Going by the above Section, the essential ingredients to be established for the offence under Section 201 of the I.P.C., are the following: (1) That an offence was committed. (2) The person charged must have knowledge or reason to believe that the main offence was committed. (3) The person charged should have caused any evidence relating to the main offence to disappear or given false information regarding the main offence. (4) The act should have been done by the person with the intention of screening the offender from punishment under law. 9. In this case, the first ingredient stands proved with our finding that the deceased died a homicidal death. The second ingredient is also present in this case, as both the accused/appellants were aware of the commission of the offence. The 3rd ingredient is also present, as they have buried the body to screen the offender. The 4th ingredient is also present, as the burial of the dead body was done, definitely, for saving the culprit from punishment. In view of the above position, we affirm the finding of the court below that the appellants are guilty of the offence punishable under Section 201 of the CRA 124/2004 14 I.P.C. 10. In the result, the conviction and sentence imposed on the appellants for the offence under Section 302 of the I.P.C are set aside and they are acquitted. But, they are convicted for the offence punishable under Section 201 read with Section 34 of the I.P.C and sentenced to undergo rigorous imprisonment for three years. Since the appellants have already suffered imprisonment for more than three years, they shall be set at liberty forthwith, if their detention is not required in any other case. The Criminal Appeal is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/