IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 CRL.A.No. 1226 of 2007(C) ------------------------ ADDITIONAL SESSIONS JUDGE, THRISSUR (FAST TRACK COURT NO.II ADHOC) APPELLANT : ACCUSED: ---------------------- SUNNY, S/O.JOB, CHERUVATHOOR HOUSE, MARATHAMKODE VILLAGE, DESOM, THALAPPILLY TALUK, KUNNAMKULAM. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT : COMPLAINANT: --------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- Crl. Appeal No.1226 of 2007 ------------------------------------------------- Dated this the 22nd day of December, 2011 JUDGMENT Basant,J. (i) Are the circumstances relied on by the prosecution proved satisfactorily? (ii) Are the circumstances sufficient to come to a safe conclusion about the guilt of the appellant? (iii) Are not the various inadequacies pointed out by the learned counsel for the appellant sufficient to generate a reasonable doubt in favour of the appellant? These questions arise for our consideration in this appeal where the appellant has been found guilty, convicted and sentenced for commission of the offence of murder under Sec.302 IPC. The appellant was found not guilty and acquitted of the charge levelled against him under Sec.377 read with Sec.511 IPC. 2. In view of the nature of this case, we initially at the Crl.Appeal No.1226/07 2 stage of commencement of arguments wanted the learned Public Prosecutor to explain the theory of the prosecution to us. The learned Public Prosecutor fairly submits that some part of the prosecution case particularly the allegation under Sec.377 read with Sec.511 IPC could not be established by the prosecution by specific substantive evidence. We therefore wanted to know what the initial theory of the prosecution was. 3. According to the prosecution, the house in question which stood in the name of the uncle (mother's brother) of the deceased was left abandoned and unoccupied. The maternal grandmother of the appellant was long earlier allegedly murdered in that house by none other than the appellant. For that offence of murder, the appellant had faced prosecution. He was granted the benefit of doubt and was acquitted. He remained in custody for some period of time in connection with that crime. It is the case of the prosecution that the appellant (an unmarried person) alone used to occasionally reside in that house. 4. The body of the deceased was found available in that house on 19/3/2005. Ext.P1 First Information Statement was lodged by P.W.1 and investigation commenced on the basis of Crl.Appeal No.1226/07 3 the crime so registered. In the course of inquest, it was revealed that the appellant had gone to that house on the night of 17/3/2005 and had picked up a quarrel with the deceased in that house. The deceased had met with a homicidal death. According to the prosecution, the deceased was a native of Rajasthan who was leading a nomadic life. He has chosen to take shelter on the open veranda of the unoccupied house on that night. He was, according to the prosecution, a total stranger to the appellant also. 5. The appellant was dissatisfied with the presence of that stranger in that house. The accused was allegedly drunk also. There was a quarrel between the appellant and the deceased. The appellant allegedly attempted to have oral sex with the deceased. The deceased resisted the attempt. An altercation followed. The deceased was murdered by the appellant. Injuries were inflicted with weapons - M.Os.20, 12 and 13. It was, in these circumstances, that the prosecution initially raised allegation against the appellant under Sec.377 read with Sec.511 and Sec.302 IPC. The learned Public Prosecutor submits that the allegation under Sec.377 read with Sec.511 IPC was raised initially - evidently not on the basis of any evidence secured; but Crl.Appeal No.1226/07 4 on the basis of confession statement of the accused. 6. It was P.W.21 who completed the investigation and filed the charge sheet against the appellant. 7. The learned Magistrate duly committed the case to the Court of Session. The learned Sessions Judge framed charges under Secs.302 and 377 read with Sec.511 IPC. The appellant denied the charges. Thereupon, the prosecution examined P.Ws.1 to 26 and proved Exts.P1 to P29. M.Os.1 to 34 were also marked by the prosecution. 8. The accused took up a defence of total denial. He did not examine any defence witness. Exts.D1 and D2, portions of Ext.P1 First Information Statement, were marked when P.W.1 was in the witness stand in an attempt to contradict him. 9. The learned Sessions Judge, on an anxious evaluation of all the relevant inputs, came to the conclusion that the prosecution has succeeded in proving the offence under Sec.302 IPC against the appellant. The appellant was acquitted of the charge under Sec.377 read with Sec.511 IPC in the total absence of any evidence in support of that charge. Accordingly, the learned Judge proceeded to pass the impugned judgment. 10. Before us, the learned counsel for the appellant/ Crl.Appeal No.1226/07 5 accused and the learned Public Prosecutor have advanced detailed arguments. The case rests entirely on circumstantial evidence. The learned counsel for the appellant argues that the circumstances relied on by the prosecution have not been firmly and satisfactorily established beyond doubt. The established circumstances, if any, are not sufficient for a prudent mind to sail to the safe conclusion that the appellant is guilty of the charge under Sec.302 IPC levelled against him. In any view of the matter, the appellant is entitled to the benefit of doubt, argues the learned counsel for the appellant. 11. The learned learned Public Prosecutor, on the other hand, contends that the prosecution has successfully established all circumstances on which reliance is placed and the established circumstances convincingly beyond the trace of any reasonable doubt establish the charge under Sec.302 IPC against the appellant. 12. We have considered all the relevant inputs. An appellate judgment is and ought to be read in continuation of the judgment of the trial court. In that view of the matter, we deem it unnecessary to attempt a re-narration of the materials relied on by the prosecution. Suffice it to say that we have been taken Crl.Appeal No.1226/07 6 thread bare through the oral evidence of P.Ws.1 to 26 and the contents of Exts.P1 to P29. The charge framed by the court as also the answers given by the accused in the course of 313 examination have also been read over to us. We shall advert to relevant material specifically, if necessary, while undertaking discussions later. 13. A look at the law relating to appreciation of evidence in a case resting circumstantial evidence, initially will be appropriate. The law is too well settled to require or warrant reference to any specific precedent. In a case resting on circumstantial evidence, the prosecution must discharge its burden to establish all circumstances firmly and satisfactorily. Such circumstances established must form strong links of a strong chain which unerringly and clinchingly point to the guilt of the indictee - to the exclusion of every reasonable hypothesis of innocence of the appellant. The strength of the chain of circumstances is identical to the strength of the weakest link in the chain, we must always remember. We would promptly remind us that it is not the number of circumstances that matter, it is the probative significance and relevance of the circumstances proved that would ultimately be crucial in the Crl.Appeal No.1226/07 7 assessment and evaluation of guilt of the indictee. 14. Having thus remained ourselves about the law on the point, we shall now attempt to narrate the various circumstances relied on by the prosecution. We shall then discuss each circumstance to decide whether such circumstances have been established or not. We shall subsequently consider the safe conclusions that flow from the circumstances proved. 15. The prosecution relies on the following circumstances. (1) The deceased person met with homicidal death at some time around mid night on 17/3/05. He had succumbed to the injuries inflicted on him with weapons like M.Os.12, 13 and 20. (2) That the house in question belonged to the maternal uncle of the appellant and the accused used to reside occasionally in that unoccupied house. (3) The accused was taken to that house on the night of 17/3/05 by P.W.3 in his autorikshaw. (4) En route to that house, the accused had stopped at the shop of P.W.4 and had purchased articles from the shop Crl.Appeal No.1226/07 8 of P.W.4 including M.O.9 disposable glass which was found at the scene of the crime. (5) In that house when P.W.3 dropped the accused, there was another person (stranger) wearing a coffee coloured dress (the deceased). The appellant had in the presence of P.W.3 picked up a quarrel with such person (stranger) who was found on the veranda of the house. (6) Early morning on 18/3/05 the appellant was found moving away from the direction of that house by P.W.6 an autorikshaw driver to whom the appellant asked for a lift and he did not oblige. (7) The appellant went to the house of P.W.14, his sister, on that night and sought shelter/asylum in that house for the night which she refused. (8) The appellant then proceeded to Guruvayur and resided in the dormitory in the Rest House of Guruvayur Devaswom under a pseudonymous name and address on the night of 18th and 19th of March, Crl.Appeal No.1226/07 9 2005. (9) The police eventually arrested the appellant on 22/3/05 and on the basis of his statement, M.Os.11 and 14 clothes worn by him were recovered by the police. M.O.14 was found to contain human blood in it (which remains unexplained by the appellant). (10) On the basis of the information furnished by the appellant in the course of his confession statement (admitted under Sec.27 of the Evidence Act), M.Os.12 and 13 weapons were recovered by the Investigating Officer under Ext.P3 seizure mahazar. M.O.13 which alone was sent to the Chemical Examiner was found to contain human blood stains on it. (11) When the appellant, after his arrest, was examined by P.W.18 doctor, he was found to have injuries on his person described in Ext.P15. (12) The accused does not offer any acceptable explanation for the various circumstances proved against him. Crl.Appeal No.1226/07 10 16. We shall now proceed to consider whether these circumstances relied on by the prosecution have been established satisfactorily. 17. Circumstance No.(1): The identity of the deceased person has not been established too satisfactorily. We have the evidence of P.W.20 that the accused, whose photograph was taken by the police and who bore a tattoo mark with his name “Harish” in Hindi on his person was known to him as a nomadic worker who had no fixed place abode. Notwithstanding the inability of the prosecution to establish the identity of the deceased in any better and more convincing manner with reference to his close relatives, the fact remains that the deceased person was found dead in the house in question. We have the evidence of P.W.22 doctor and Ext.P26 post-mortem certificate issued by him to confirm beyond the pale of controversy that the deceased had succumbed to the injuries found on his person described in Ext.P26. We do have the evidence of P.W.22 that those injuries could have been inflicted on the deceased with weapons like M.Os.12, 13 and 20. 18. This circumstance is not seriously disputed. This circumstance is convincingly established. We agree that the Crl.Appeal No.1226/07 11 deceased had died a homicidal death and had succumbed to the injuries described in Ext.P26 inflicted with weapons like M.Os.12, 13 and 20. 19. Circumstance No.(2): It is the case of the prosecution that the house belongs to the tarwad of the appellant's mother. The appellant's mother was examined as P.W.10; his brother was examined as PW1; a relative was examined as P.W.13 and the sister of the appellant was examined as P.W.14. Ext.P22 ownership certificate issued by P.W.25 was also proved. These show clearly that the house belonged to the maternal uncle of the appellant. Indications galore to suggest that the said house remained unoccupied. Prosecution has a case that the appellant used to occasionally occupy the said house. On that part of the prosecution case clinching evidence could not be secured from the mouth of P.Ws.1, 10, 13 and 14 who are the close relatives of the appellant. However, P.W.1 in Ext.P1 First Information Statement had asserted that the house was occupied occasionally by the appellant. He stood by Ext.P1, his signed statement given before the police. He asserted that the contents were true. He was cross-examined with reference to the contents of Ext.P1. It was in that context that Exts.D1 and Crl.Appeal No.1226/07 12 D2 were marked. However, we find no specific cross- examination on this crucial aspect - that the appellant used to occasionally reside in that house. Substantive evidence of such occasional residence in that house is, of course, not available. It will not be inapposite in this context to note that P.W.4, a shop owner said to be related to the appellant also admitted that the appellant used to purchase articles from that nearby shop. Though the totality of circumstances do point to the truth of the case of the prosecution that the appellant used to occasionally reside in that house, specific substantive evidence on that aspect has not been procured. It is established beyond doubt that the house in question is the tarwad house of the appellant which stood in the name of his maternal uncle as per Ext.P22. This circumstance is established by the prosecution to the above extent only. 20. Circumstance No.(3): According to the prosecution, the appellant had come to the house in question on the night of 17/3/05. He had allegedly come in the autorikshaw of P.W.3. P.W.3 on coming to know that a dead body was found in that house and that police had come to the said house had gone to that house and was present when the inquest report Ext.P2 was Crl.Appeal No.1226/07 13 being prepared. Even at the stage of Ext.P2 (on 19.03.2005), P.W.3 had asserted that he had dropped Sunny, the appellant in the house in question on the night of 17/3/05. Under law, we cannot directly take cognizance of the statements given to the police by the witness recorded in Ext.P2 inquest report; but his assertions on oath in court is convincingly corroborated by the absence of contradictions marked in that earlier statement made before police which is recorded in Ext.P2 and which record is available before court. We cannot afford to omit to note the significance of that earlier statement of P.W.3 to the police in Ext.P2 inquest report prepared on 19/3/05 (and which reached the court on 23/3/05) that the appellant had gone to the house in question on the night of 17/3/05. This Circumstance No. (3) is thus convincingly and firmly established by the prosecution. 21. Circumstance No.(4): The prosecution relied on the oral evidence of P.W.4 that the appellant had gone to his shop which is situated near to the house in question on the night of 17/3/05 and purchased various articles. Specific evidence is available that M.O.9 disposable glass was one of the articles purchased by the appellant from the shop of P.W.4. That M.O.9 was found Crl.Appeal No.1226/07 14 available at the scene. It was PW3 who stated to the police that his autorickshaw had stopped at the shop of PW4 to enable the appellant to purchase an article. Evidence of PWs 3 and 4 support each other in this context. We have the identification by PW4 that MO.9 was purchased by the appellant on that night when he came to his shop. MO.9 was found available at the scene as per Ext.P8 scene mahazar. The statement of PW3 that the accused had purchased articles from the shop of PW4 on that night is supported by his earlier statement to police on 19.03.2005, as convincingly revealed from the absence of contradictions marked. This circumstance No.4 is also thus established convincingly by the prosecution. 22. Circumstance No.(5) The prosecution has a further case that when the appellant reached the house in the autorickshaw of PW3, a person - a stranger, said to be the deceased, was found in the veranda of that house. The appellant allegedly took objection to the presence of such stranger. There was a quarrel between them. PW3 identified such person as the deceased. Even in Ext.P2 inquest report, he made such identification. In court however he Crl.Appeal No.1226/07 15 stated that the deceased was wearing coffee coloured clothes which were found available at the scene of the crime. The evidence of PW3, which as stated earlier, is convincingly supported by the absence of contradictions marked in his statement in Ext.P2 inquest report clearly shows that when the appellant got down from the autorickhaw, a stranger was found present at the house. The appellant took objection to such presence and a quarrel ensued. As to whether it was the deceased who was the stranger present, there is no specific identification by PW3 now. But the fact remains that there is identification of such stranger as the person who was found wearing the coffee coloured clothes which were found at the scene when the scene mahazar was prepared. This circumstance No.5 is also thus established satisfactorily by the prosecution. 23. Circumstance No.(6) According to the prosecution on the morning of 18.03.2005 - allegedly after the incident in this case, the appellant had attempted to go away from the scene of the crime early in the Crl.Appeal No.1226/07 16 morning. PW6 is an autorickshaw driver of the locality. He was driving past a point near the house where the incident took place. He saw the appellant. The appellant wanted PW6 to stop and take him in the autorickshaw. PW6 was afraid. The accused allegedly had a bad reputation and that is what prompted PW6 not to carry the appellant in his autorickshaw. He sped away. He did identify the appellant as the person who was standing on the road early in the morning on 18.03.2005. PW6 has tendered substantive evidence. It is not in dispute that the appellant had earlier faced indictment for the murder of his grandmother. PW6 has a further case that the appellant is involved in theft cases. We are not choosing to refer to the character or conduct of the accused; we are only trying to find out the acceptability of the explanation of PW6 as to why he did not stop the vehicle and carry the appellant in his autorickshaw notwithstanding the request of the appellant to carry him in his passenger vehicle. It is argued that the oral evidence of PW6 does not deserve to be accepted. We have anxiously gone through the cross Crl.Appeal No.1226/07 17 examination of PW6. We have assessed his evidence on broad probabilities and also intrinsically. We find no reason whatsoever to discard the evidence of PW6. The court below which had the occasion to see PW6 performing in the witness stand has chosen to accept his oral evidence. The evident advantage of a trial court Judge who has occasion to see the witnesses perform in the witness stand before him in the matter of appreciation of evidence has to be alertly borne in mind by an appellate judge. An alert trial Judge gathers many an inputs in the course of examination of witnesses before him which may help in inducing or not inducing the requisite satisfaction in the mind of the trial Judge. Suffice it to say that assessed on broad probabilities or intrinsically we find no reason to discard the evidence of PW6. We note that no vital contradiction or omission is marked in his C.D statement to the police. We concur with the conclusion of the trial court that the evidence of PW6 can safely be accepted. 24. Circumstance Nos.(7) and (8) Crl.Appeal No.1226/07 18 According to the prosecution, the appellant who went away from the house in question early on the morning of 18.03.2005 evidently entertained an apprehension that he would be caught by the police for the indiscretion committed by him. According to the prosecution, he therefore wanted to seek shelter/asylum/protection. He went to PW14, his sister seeking accommodation on the night of 18.03.2005. PW14 has tendered evidence on this aspect. PW14 did not accept his request for accommodation/shelter/asylum on that night. She advanced her own reasons and the appellant allegedly went away from the house of PW14. On this aspect we have the evidence of PW14. Her evidence inherently inspires confidence. There is nothing to doubt or suspect her version. 25. According to the prosecution, the dissatisfied appellant went from PW14 to Guruvayur, where he chose to reside in a dormitory in the Guruvayur Devaswom rest house on the night of 18.03.2005 and 19.03.2005. On this aspect, we have the evidence of PW8, a room boy, of the Guruvayur Devaswom, Crl.Appeal No.1226/07 19 who was allegedly on duty on those nights. We have also the evidence of PW12, the Devaswom Manager. We have also Exts.P9 series and P10 series entries in the relevant books maintained by the Guruvayur Devaswom. It is the case of the prosecution through PWs 8 and 12 and Exts.P9 and P10 series that the appellant resided in that dormitory on the night of 18th and 19th March, 2005 under a pseudonymous name and address. He described himself to be K.Rajan of Mundathara House, Marathamkodu, Trichur. According to the prosecution this attempt of the appellant to conceal his real name is a serious circumstance pointing to the culpability of the appellant. The appellant denies his residence at the Guruvayur Devaswom rest house on 18th and 19th of March, 2005. We find no reason to disbelieve the evidence of PW8, room boy. His statement that the appellant described himself to be K.Rajan of Mundathara House, is also found to be eminently acceptable. The argument that the investigator has not verified whether there is at all a person by name K.Rajan of Mundathara house, is not of any Crl.Appeal No.1226/07 20 crucial significance as we note that there is no need to approach the evidence of PW8 with any inherent doubt, suspicion or distrust. We find no reason to mechanically insist on corroboration for the version of PW8. If the Investigating Officer had alertly applied himself to that aspect of the matter, it would have been a very good attempt towards perfection in investigation. But the want of perfection on that aspect cannot persuade a prudent mind to commit the indiscretion of squandering the acceptable oral evidence of PW8 which is eminently supported by the evidence of PW12 as also Exts.P9 and P10 registers and the entries therein. We do, in these circumstances, come to the conclusion that circumstances 7 and 8 have been satisfactorily established by the prosecution. 26. Circumstance Nos.(9), (10) and (11) These circumstances relate to the arrest of the accused and the subsequent recoveries as also the unexplained injuries on the person of the accused. We shall refer to these 3 circumstances in detail. Crl.Appeal No.1226/07 21 27. When the accused was arrested on 22.03.05, he was found wearing MO.11 shirt and MO.14 dhoti. They were seized by the police under Ext.P6, seizure mahazar. PW9, a police constable, is an attestor to Ext.P6 seizure mahazar prepared by PW21. The appellant was wearing those clothes. When he was taken to the police station, dress for changing was given to him and the dress worn by him were seized. The absence of an independent witness to such a seizure mahazar does not succeed in generating any dissatisfaction in our mind. The evidence of PW9 read along with the evidence of PW21 and the contents of the contemporaneous seizure mahazar Ext.P6 suggest to us that it is safe to accept and act upon this piece of evidence