IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 Death Sentence Ref..No. 1 of 2008() ----------------------------------- SC.563/2007 of SESSIONS COURT, THRISSUR .................... COMPLAINANT -------------------- STATE OF KERALA BY PUBLIC PROSECUTOR SRI.NOBLE MATHEW PUBLIC PROSECUTOR SRI.MOHAMMAD ANZAR RESPONDENT/ACCUSED: --------------- JAYANANDHAN @JAYAN ADV. SRI.M.L.SURESH KUMAR THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 09/02/2010, ALONG WITH CRA NO.1367 OF 2008. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== D.S.R. NO. 1 OF 2008 & CRL.A. NO. 1367 OF 2008 ============================ DATED THIS THE 9TH DAY OF FEBRUARY 2010 JUDGMENT Basant,J. 1) Is the verdict of guilt and conviction entered against the accused-appellant valid and sustainable? 2)Is the sentence imposed on the accused for the various offences justified? Does the sentence of death deserve to be confirmed? These are the questions that arise for consideration in this appeal preferred by the appellant-accused through prison authorities. A counsel has subsequently entered appearance on his behalf to prosecute the appeal and to represent him in the Death Sentence Reference. 2. The charge against the appellant-accused is that he committed house breaking and gained access into the house of deceased Nirmala and Sahadevan on the night of 3-10-2004/ DSR.No.1/08 &Crl.A No.1367/08 2 4-10-2004 by breaking open the wooden bars of a window. After so entering the house, he broke open the receptacles in the house. He is further alleged to have committed robbery and in the course of such attempt he is alleged to have caused the death of both deceased Sahadevan and his wife Nirmala, an old couple 62 years and 58 years. He is thereby alleged to have committed the offence punishable under Sections 449, 461,394 and 302 of the Indian Penal code. 3. The investigation commenced with Ext.P1 F.I. statement lodged by PW2. Ext.P1(a), F.I.R.was registered on the basis of Ext.P1. Investigation was conducted by different police officers belonging to different police agencies. It was PW42, who completed the investigation and filed the final report against the accused. Cognizance was taken by the learned Magistrate and the case was committed to the Court of Sessions. Consequent to the plea of not guilty raised by the accused, the prosecution was called upon to adduce evidence and the prosecution examined PWs.1 to 42 and proved Exts.P1 to P45. MOs.1 to 32 series were also marked. On the side of the accused, Ext.D1 was marked. The court below on an anxious consideration of all the relevant circumstances came to the conclusion that the prosecution has DSR.No.1/08 &Crl.A No.1367/08 3 succeeded in establishing all offences alleged against the accused. The learned Sessions Judge proceeded to hear the accused on the question of sentence. Exts.C1 to C8 which have a bearing on the question of sentence were marked. The court below proceeded to pass the impugned judgment convicting and sentencing the accused under Sections 441,394,461 and 302 IPC. A sentence of death was imposed under Section 302 I.P.C. For the offence punishable under Sections 449 and 394 I.P.C. , separate sentences of imprisonment for life were imposed. The appellant-accused was sentenced to undergo rigorous imprisonment for a period of two years under Section 461 I.P.C. Substantive sentences of imprisonment were directed to run concurrently. The accused, it was held, was entitled to set off for the period of imprisonment undergone by him under Section 428 Cr.P.C. 4. We shall initially refer to the evidence adduced by the prosecution. Pws.1,2, 3,4,6,7,8,9,10 and 11 are neighbours. Some of them have come to the scene of occurrence. When they came to the house of the deceased Sahadevan and Nirmala on the morning of 4-10-2004, they came to know that the deceased Sahadevan was lying dead inside the house and Nirmala with the DSR.No.1/08 &Crl.A No.1367/08 4 injuries was available in the house. The house was closed from inside. They broke open the door and rushed Nirmala to the hospital. PW2 as stated earlier had lodged Ext.P1 F.I.statement on the basis of which Ext.P1(a)F.I.R.was registered. Nirmala succumbed to her injuries later while undergoing treatment. Exts.P2 and P4 are the inquest reports of Sahadevan and Nirmala respectively. Ext.P3 is the scene mahazar. PW8 is an attester to Ext.P5 seizure mahazar under which the clothes of Nirmala were seized. MOs.1 to 18 were seized under Ext.P3 scene mahazar to which PW4 is an attester. Under Ext.P5, MOs.19 to 22 were seized to which PW8 is an attester. It was realized a ‘koothanpara’ – a long iron rod (MO.23) was missing from the premises of PW10 and the same was seized under Ext.P6 from a stream near the house of the deceased. PW1, a neighbour and a friend of deceased Nirmala and PW12, daughter of Nirmala had observed that ornaments which deceased Nirmala used to wear were missing on her body when she was lying with the injuries and shifted to the hospital. Local police conducted investigation initially. Later, the investigation was taken over by the Crime Branch C.I.D. 5. Long later, on 23-11-2006, PW34 in the course of DSR.No.1/08 &Crl.A No.1367/08 5 investigation in another crime had arrested the accused. He was interrogated. He allegedly furnished information which revealed his involvement in this crime also. PW36, the superior of PW33 had submitted Ext.P39 report. The accused was produced in that crime before the Magistrate and PW37 had arrested the accused formally in this crime. Later PW37 interrogated the accused. He allegedly gave a confession statement. On the basis of information furnished in such confession statement (it is marked as Ext.P40 separately), PW37proceeded to M/s.Thomson Enterprises where PWs.13 to 15 and 17 were employed. Accused led PW37 to PWs.13 to 15 and 17 and there it was revealed that under Ext.P7(a)one gold chain and four bangles were pledged by the accused on 7-10-2004. An amount of Rs.25,000/- was paid to him. On 14-10-2004 under Ext.P8(b) the accused had redeemed those gold ornaments. It was the case of PWs.13 to 15 and 17 that on 14-10-2004, the accused had sold to M/s. Thomson Enterprises the said gold chain and four bangles along with a thali, two ear studs and one gold ring (total of 90 grams of gold ornaments). M/s. Thomson Enterprises, Chalakudi had allegedly melted those gold ornaments and they were available with them. MO.24 which is one gold ingot of 89.5 DSR.No.1/08 &Crl.A No.1367/08 6 grams and a gold plate 500 Mg. which allegedly came out of the melting of the ornaments was available in the said establishment and the same was seized under Ext.P11 by PW37. PW16, a gold appraiser had appraised the said gold and found the same to be of 20 ct. purity. 6. In the course of investigation, the investigating officer traced PWs.18 and 19, who stated that the accused had visited that area in connection with a transaction relating to a log of Punna tree. In the course of further investigation, the investigating officer had traced PWs.20 and 39 who are alleged to be employees of a stage carriage bus plying in that route. According to them, on the morning of 4-10-2004 in the first trip of the bus from Guruvayur to Ernakulam the accused person in a strange and soiled attire had got into the bus at Perinjanam near the scene of the crime. This had attracted their attention. 7. It is the further case of the prosecution that in Ext.P7 while pledging the gold ornaments the accused had given an address and phone number which were patently false. PW22 an Engineer of the BSNL had issued Ext.P13 certificate that the said phone was allotted to a totally different person. PW23, Village Officer who submitted Ext.P14 report had reported to the DSR.No.1/08 &Crl.A No.1367/08 7 investigating officer that there was no such person with that name and the address shown in Ext.P7. There was a signature of the person who pledged ornaments and redeemed the same in Ext.P8(b). The signature therein was compared with Exts.P15 to P18. They are specimen signatures of the accused who had an account with the Bank in which PW24 is an employee. Exts.P15 to P18 were seized as specimen signatures of the accused under Ext.P19 by the investigating officer. PW26 is the Doctor who conducted the postmortem examination on the body of the deceased couple and issued Exts.P23 and P25 postmortem certificates. Exts.P24 and P26 are the chemical analysis reports which were also proved through PW26. PW27, Scientific Assistant had inspected the scene of the crime and prepared Ext.P27 examination report. Mos.25 to 28 were seized by him under Ext.P27. He had conducted the preliminary test for the presence of blood on MO.23 weapon which was found lying in a stream near the scene of the crime. He filed the report Ext.P28. PWs.28 and 29 are the Doctors who attended on deceased Nirmala from 4-10-2004 to the date of her death in two different hospitals. Ext.P29 is the wound certificate and Ext.P30 is the case sheet. PW30 is the Scientific Assistant who examined DSR.No.1/08 &Crl.A No.1367/08 8 the signature which appeared in Ext.P8(b) with the standard/specimen signatures of the accused. Exts.P31 to P33 were marked through him. He was examined to confirm that the signature in Ext.P8(b) was that of the accused. 8. PW31 is a friend of the accused. He was examined by the prosecution to prove that after the accused collected Rs.25,000/- by pledging the ornaments before Thomson Enterprises on 7-10-2004, the accused had advanced an amount of Rs.10,000/- to his friend, PW31. PW32 is the Circle Inspector, who conducted the initial investigation. Ext.P1 F.I.statement, Ext.P1(a)F.I.R., Exts.P2 and P4 inquest reports, Ext.P3 scene mahazar and Exts.P5 and P6 seizure mahazars were proved through him. Ext.P21 as also Exts.P34 to 36 were also marked by him. PW25 is the court clerk who forwarded the properties to the expert and Exts.P20 to P22 series were marked through him. PWs.33,34,36,37,38,40,41 and 42 are the police officers, who had various roles to play in the investigation of the crime from the date of registration to the date of filing the charge sheet. PW35 is the expert from the Forensic Science Laboratory who proved Ext.P38. PW38 had prepared Ext.P19 under which Exts.P15 to P18 were seized by him from PW24 as directed by DSR.No.1/08 &Crl.A No.1367/08 9 the investigating officer. 9. In the course of cross examination of PW1, the accused had marked Ext.D1 a case diary contradiction. After the closing of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. He took the stand that he had nothing to do with the crime or the articles lost/thieved from the deceased. He however in the course of examination under Section 313 Cr.P.C.admitted his signature in Ext.P8(b). According to him, the address shown in Ext.P7(a) is his correct address. But he denied that he had pledged the articles on 7/10/2004 under Ext.P7(b). He admitted that he pledged gold ornaments with M/s.Thomson Enterprises on several occasions but did not sell gold to them. PW17, an employee of Thomson Enterprises was known to him. He conceded that from 1995 he was having transactions with that institution. He admitted that he knew PW18 and had helped him to carry a Punna tree to a place near the house of the deceased. He admitted his specimen signatures in Exts.P15 to P18. He did not adduce any oral evidence on his side. As stated earlier, Ext.D1 case diary contradiction was marked. 10. Before us, the learned counsel for the appellant, DSR.No.1/08 &Crl.A No.1367/08 10 Sri M.L.Sureshkumar and the learned Public Prosecutor Sri. Noble Mathew have advanced their detailed arguments. 11. The learned counsel for the appellant contends that in this case reliance is placed only on circumstantial evidence. The prosecution has not succeeded in proving the circumstances satisfactorily and the circumstances established even if accepted in toto is insufficient to establish the guilt of the accused. In these circumstances, the counsel contends that at any rate, the appellant-accused is entitled to the benefit of doubt. The learned Public Prosecutor, on the contrary, contends that all the circumstances relied on by the prosecution have been established satisfactorily and the circumstances proved are sufficient to establish the guilt of the accused beyond any reasonable doubt. The learned Public Prosecutor in these circumstances prays that considering the gravity of the offence and the depravity of the offender, the sentence of death may be confirmed. 12. We shall now advert to the circumstances which are relied on by the prosecution. We shall then proceed to consider whether these circumstances have been established satisfactorily. Later, we shall consider the question whether the DSR.No.1/08 &Crl.A No.1367/08 11 circumstances established are sufficient to establish the offences alleged against the accused satisfactorily. We shall thereafter proceed to, if necessary, consider the question of sentence. 13. We shall initially refer to certain circumstances and conclusions which flow from such circumstances which are not disputed seriously and are, at any rate, established convincingly. The prosecution relies on the fact that Sahadevan and Nirmala had suffered homicidal injuries on the night of 03/10/2004 / 04/10/2004. Sahadevan had succumbed to the injuries at the scene of the crime itself. Nirmala had suffered injuries and had succumbed to the injuries later on 09/10/2004. The injured persons were lying inside the house closed from inside. The miscreant had gained access into the house through a window, the wooden bars of which were found broken. MO23 was found missing from the house of PW10 and the same was found in a stream which was situated on the south of the house of the deceased. The doctor who conducted the postmortem examination that is PW26 and the postmortem certificates Exts.P23 and P25 revealed that the deceased persons must have suffered the injuries when they were attacked with a weapon like MO23. DSR.No.1/08 &Crl.A No.1367/08 12 14. We do not think it necessary to advert to the circumstances relied on by the prosecution in support of these conclusions of facts in any greater detail. We are satisfied and there is no serious dispute on this aspect that the following findings of fact can safely be entered. That is: i) Both the deceased persons died of homicidal injuries suffered by them on the night of 03/10/2004. ii) That injuries were inflicted on them by some miscreant who had entered the house by breaking open the wooden bars of a window. iii) A weapon like MO23 must have been used by him for infliction of the injuries. iv) The miscreant, whoever he be, had made attempts to search for and take away costly articles available in the house. 15. Certain gold ornaments worn by deceased Nirmala usually were found missing when she was found lying with injuries on the morning of 04/10/2004. 16. We are not embarking on a detailed consideration of the evidence in support of the above circumstances as we find that there is no dispute between the parties on this aspect and the said findings of fact are eminently justified by the materials DSR.No.1/08 &Crl.A No.1367/08 13 placed on record. 17. The million dollar question to be decided in this case is whether it was the accused who so gained access into the house and committed the crime. On this aspect, as stated earlier, there is no direct evidence and the prosecution relies heavily on certain circumstances to tilt the balance convincingly against the accused. The following are the circumstances relied on by the prosecution. i) At the time when deceased Nirmala was found lying with injuries, her gold ornaments weighing a total of 11 ¼ sovereigns (gold chain weighing six sovereigns, four gold bangles each weighing one sovereign, a gold ring weighing ½ sovereign and two ear studs weighing ¾ sovereigns in all) were found missing. ii) Prior to the date of occurrence, the accused had opportunity to visit the locality and come to know of the residence of the deceased persons alone in the house where the incident took place. iii) After the arrest of the accused on 23/11/2006 by PW34 in another crime, he had allegedly made a confession statement which revealed his involvement in the instant crime. DSR.No.1/08 &Crl.A No.1367/08 14 iv) PW34 had handed over the accused to PW36, his superior. PW36 recorded the confession statement in detail and forwarded Ext.P39 report dated 26/11/2006 incorporating the confession to PW37, the investigating officer . v) PW37 formally recorded the arrest of the accused in this crime on 19/12/2006. He interrogated the accused. The accused then allegedly gave confession statement on 20/12/2006. In such confession statement, he furnished Ext.P40 information to PW37. vi) In furtherance of Ext.P40 information received by PW37 as led by the accused, PW37 reached M/s.Thomson Enterprises and questioned PWs 13,14,15 and 17. It was revealed that on 07/10/2004, the accused had pledged one gold chain and four gold bangles (weighing 77.5grams) and had obtained an amount of Rs.25,000/- from M/s.Thomson Enterprises. Under Ext.P8(b), the accused had redeemed the said 77.5 grams of gold ornaments. On 14/10/2004 itself, the accused had sold the said gold chain weighing six sovereigns, four gold bangles each weighing one sovereign ear studs weighing ¾ sovereign and gold ring weighing ½ sovereign (90 grams in all) to M/s. Thomson Enterprises. DSR.No.1/08 &Crl.A No.1367/08 15 vii) M/s.Thomson Enterprises had melted the gold ornaments sold on 14/10/2004 by the accused to them and the melted gold in the form of a gold ingot weighing 89.500 grams and a gold plate weighing 500 Milli grams (MO24) were seized by PW37 under Ext.P11 seizure mahazer on 20/12/2006. viii) The accused had furnished a false address and telephone number to M/s.Thomson Enterprises when he pledged the gold ornaments. ix) After the arrest of the accused PWs 20 and 39 were traced and according to them they had seen the accused boarding their bus from Perinjanam on its first trip on 04/10/2004 at about 6.30 a.m. x) After the arrest of the accused PW31 was traced and it was revealed that an amount of Rs.10,000/- had been borrowed by PW31 from the accused in October 2004. 18. We shall now proceed to consider whether these circumstances have been proved and they if proved are sufficient to drive home the guilt of the accused. 19. The first circumstance relied on by the prosecution is that the ornaments of the deceased Nirmala were found missing DSR.No.1/08 &Crl.A No.1367/08 16 when she was found lying with injuries inside the closed house. We have fairly satisfactory materials to come to a conclusion beyond doubt, that after the deceased persons retired for the night after closing their house from inside, some miscreants had gained access into the house by removing the wooden bars of the window. We have also clinching indications available from the description of the scene in Ext.P3 scene mahazer that the scene bore evidence of an attempt to search for valuables. The evidence of PW1 and Ext.P1 show clearly that the gold ornaments worn by the deceased Nirmala were missing when she was lying with injuries. The prosecution, in these circumstances, argues that whoever was responsible for the injuries found on the person of the deceased must have removed the gold ornaments of deceased Nirmala. The learned counsel for the accused contests this version of the prosecution. He argues that the available indications must persuade the court to doubt the version that this is a case of murder for gain alone. The learned counsel brings to the notice of the court that deceased Sahadevan was a money lender. Relying on Ext.P35 search list and the letter dated 20/09/2002 recovered after the search of the premises of deceased Sahadevan some one DSR.No.1/08 &Crl.A No.1367/08 17 dissatisfied with the activities of deceased Sahadevan as a money lender had sent that letter intimidating him. The learned counsel builds up an argument that deceased Sahadevan had many enemies. His activities as a money lender had created many enemies for him. It would be myopic to jump to the conclusion that theft was the dominant motive of the crime. In this context the learned counsel points out that several other costly articles and currency notes were available at the scene and the miscreant whoever he be had not chosen to take away those articles. The learned counsel places reliance on Ext.P2 inquest report and Ext.P3 scene mahazer to drive home his theory that the miscreant who had not touched the various costly articles readily available at the scene, cannot lightly be assumed to be a mere theft. The miscreant who is alleged to have searched the receptacles in the other room is unlikely to have not searched the other articles at the scene of crime if his purpose were mere theft alone, argues the learned counsel. 20. We take note of the circumstances referred above relied on by the learned counsel for the accused in support of the hypothesis that some other motive and not merely theft alone could have prompted the miscreant to commit the heinous crime. DSR.No.1/08 &Crl.A No.1367/08 18 Be that as it may, identification of the articles if any which were removed/thieved from the scene, whatever be the motive of the offender, is definitely crucial in the facts of the case. But the more important question is what those ornaments were. In a case like the instant one, where the indictee is sought to be linked with the crime primarily on the basis of possession of stolen articles removed from the body of the deceased, the identity of the ornaments missing is certainly very important. The burden rests squarely on the shoulders of the prosecution to adduce satisfactory evidence to link the accused with the ornaments thieved/lost from the scene of the crime. We have only the evidence of PW1 neighbour and PW12 daughter about the ornaments that deceased Nirmala used to wear and which were found missing when she was found lying with injuries. The evidence of both PW1 and PW12 suggest that the deceased used to wear a gold chain with thali, four gold bangles, one gold finger ring and two ear studs. What is of relevance is that the daughter does not speak of the details of the ornaments - even the weight of the ornaments. No other near relative is examined to show the nature and details of the ornaments which the deceased was wearing at the time of her death. The deceased had two DSR.No.1/08 &Crl.A No.1367/08 19 daughters in addition to PW12. They have not been examined. The deceased - Sahadevan and Nirmala had married off all the three daughters and were residing in the house where the incident occurred. None of the children were residing with them. All these notwithstanding, the burden in a case like this, is heavy on the prosecution to prove by evidence before court the nature of the ornaments that were found missing. The evidence of PW12, as stated earlier, only indicates that the deceased was having the above gold ornaments without any description of the nature and pattern of those ornaments or the weight of those ornaments. This must definitely be reckoned as a relevant inadequacy. We do, of course, have the evidence of PW1 that the deceased was wearing the above said ornaments. Sahadevan was a money lender. Several ornaments may have come into his possession. PW1 also did not give details about the nature and pattern of these gold ornaments. However, she gave details about the weight of these ornaments as allegedly disclosed to her by deceased Nirmala. According to her, deceased Nirmala had and used to wear ornaments - gold chain with thali weighing six sovereigns, four gold bangles each weighing one sovereign, ear studs weighing 3/4th of a sovereign and a gold finger ring DSR.No.1/08 &Crl.A No.1367/08 20 weighing half a sovereign. This would work out to a total of 11 ¼ sovereigns, that is 90 grams. 21. What we are concerned with now is the total absence of an endeavour on the part of the prosecution to