IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 CRL.A.No. 1965 of 2005(B) ------------------------- SC.1/2004 of II ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): ------------------- OMANAKUTTAN @ KEERIKKADAN, S/O. RAGHAVAN, C.NO.2422, CENTRAL PRISON, KANNUR. BY ADV. ADV.K.M.JAMALUDHEEN(STATE BRIEF) RESPONDENT(S): ---------------------- STATE OF KERALA, REPREESNTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.249/98, HILL PALACE-P.S) PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON 21/10/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 1965 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2009. JUDGMENT Bhavadasan, J, The accused in this case was prosecuted for the offences punishable under Sections 392 and 302 Indian Penal Code. He was found guilty on both counts. Accordingly he was convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.15,000/- for the offence punishable under Section 302 IPC with a default clause. He was also sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.10,000/- for the offence punishable under Section 392 IPC, that too with a default clause. It is also directed that if the fine amount is realised, a sum of Rs.20,000/- shall be paid as compensation to the mother of the deceased or to the legal heirs as the case may be. Set off as per law was allowed. Crl.Appeal.1965/2005. 2 2. The incident which gave rise to this case is alleged to have taken place in the intervening night of 9.11.1998 and 10.11.1998. The body of the deceased, namely, Shine was found in the lean to the marriage hall of Puthiyakavu Devi Temple. Shine was working as a sales representative. On 9.11.1998 Shine was on his way to his house. The next day when P.W.1 had gone to the temple, he came to know the death of his nephew, namely, Shine and found his body in the lean to the marriage hall. He laid Ext.P1 First Information Statement before Hill Palace Police Station. Thripunithura. That was recorded by P.W.19, the Station House Officer of the Hill Palace Police Station. On the basis of Ext.P1 first information statement, Crime No.249 of 1998 was registered as per Ext.P1(a) First Information Report. P.W.20 took over investigation on 10.11.1998. He went to the scene of occurrence and conducted inquest over the body of the deceased person and Ext.P2 report was prepared by him. He then sent the body for autopsy. P.W.18, Forensic Surgeon conducted autopsy ad Crl.Appeal.1965/2005. 3 prepared Ext.P11 certificate. P.W.20 seized M.Os. 1 to 9, which were found on the body of the deceased. He secured the assistance of a Scientific Expert and had samples collected from the place. He also recovered materials, which were found at the scene of occurrence as per Ext.P4 mahazar. During his investigation, it was revealed that it was a case of murder and hence he filed a report before the court incorporating Section 302 IPC. Ext.P13 is the relevant report. It was revealed during investigation that the accused and the deceased were seen together on 9.11.1998 late in the night. Since the investigating officer was convinced that the accused had a role in the incident, the accused was arrested. Based on Exts.P5(a) and P6(a) confession statements said to have been given by the accused, M.O.11 bath towel and the cloths worn by the accused at the relevant time were seized. P.W.20 had the accused examined by Doctor and had also collected his blood sample and hair sample. He had the materials seized by him sent for chemical examination. In the meanwhile, he had the Village Crl.Appeal.1965/2005. 4 Officer prepare the site plan. Later he had Section 392 IPC also incorporated. He took the statements of witnesses and on receipt of Exts.P9 and P10 chemical examination reports, he completed investigation and laid charge before court. 3. Chief Judicial Magistrate Court, Ernakulam took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. The learned Magistrate found that the offences are exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Ernakulam under Section 209 Criminal Procedure Code. On receipt of the records, the said court made over the case to IInd Additional Sessions Court, Ernakulam for trial and disposal. 4. The said court, on receipt of records issued summons to the accused and he entered appearance. It was found that the accused was unable to engage a counsel to defend him and therefore the court appointed Adv.Sreelal Warriar to defend the Crl.Appeal.1965/2005. 5 accused. On 14.10.2004 after hearing both sides charge was framed for the offences punishable under Sections 302 and 392 IPC. It was read over to him. The accused pleaded not guilty and claimed to be tried. It is seen from the records that thereafter the accused filed a petition stating that he had no confidence in his counsel and that he wishes to conduct the case on his own. It is also seen that the court cautioned him about the risk involved and also offered him appointment of another counsel to defend him. The accused refused to avail the service of a counsel and insisted that he conducts the case on his own. 5. Prosecution had therefore P.Ws. 1 to 20 examined Exts.P1 to P20 marked. M.Os. 1 to 22(b) were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 of the Criminal Procedure Code. He denied all the incriminating circumstances brought out against him and maintained that he is innocent. He revealed that the deceased and he were classmates and that while they were studying Crl.Appeal.1965/2005. 6 in the 9th standard, he had beaten the deceased. Soon thereafter they parted and they met after a long time, ie., on the date of the incident. He claims that Shine offered to buy food and on the way they bought a bottle of liquor. On the way they purchased several food items. He would say that on request he gave his address at Trivandrum to the deceased. Since it was too late in the night, Shine told him that they could not go to his house and suggested that they could go to the lean to the auditorium of the temple. They did so. They had drinks and thereafter they had their food. The deceased says that then he went to sleep. While he was sleeping, according to him, the deceased tried to have unnatural sex with him. When he tried to get up, the deceased pressed him down. It is also alleged by the accused that the deceased tried to suffocate him in his attempt to have oral sex and in a desperate attempt he bit the deceased. He would also say that he was badly beaten by the deceased. He would then say that Shine tried to strangulate him and he managed to kick Shine on his face. Shine, Crl.Appeal.1965/2005. 7 the deceased fell on the ground and remained motionless. The accused claimed, after that soon he left the place and does not know what happened thereafter. 6. Presumably finding that the accused cannot be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused had D.Ws. 1 to 4 examined. The trial court on a consideration of the materials found that the prosecution had succeeded in establishing the case against the accused and accordingly he was convicted and sentenced as already mentioned. The said conviction and sentence are assailed in this appeal. 7. The question that arises for consideration is whether any interference is called for with the conviction and sentence passed by the court below. 8. Since the appellant was unable to engage a counsel of his own, Adv. Sri. K.M. Jamaludeen was appointed as State Brief to defend the appellant. Crl.Appeal.1965/2005. 8 9. At the outset, it may be observed that the case is built on circumstantial evidence. The main items of evidence are the testimony of those witnesses who had seen the accused in the company of the deceased shortly before the alleged time of the death of Shine and also the Forensic Science evidence adduced by the prosecution. 10. In a case based on circumstantial evidence, it is well settled that unless all the circumstances are proved, and they unerringly point to the guilt of the accused, the accused cannot be found guilty. There is a plethora of decisions on this aspect. It has been held that when a case rests upon circumstantial evidence, such evidence must be 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 Crl.Appeal.1965/2005. 9 accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 11. It is unnecessary to refer all the decisions on the point except the decisions reported in Baldev Singh v. State of Haryana (AIR 2009 SC 963) and Krishna Ghosh v. State of West Bengal (AIR 2009 SC 2279). In the decision in Baldev Singh's case, after referring a number of decisions on the point, it was held as follows: “A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Crl.Appeal.1965/2005. 10 Maharashtra (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (g) there must be a chain of evidence so complete as not to leave any reasonable ground for the Crl.Appeal.1965/2005. 11 conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003(1) SCC 261) and Kusuma Ankama Rao v. State of A.P. (Criminal Appeal No.185/2005 disposed on on 7.7.2008)” 12. In the decision reported in Krishna Ghosh's case, it was held as follows: “A reference may be made to a later decision in Sharad Birdhichand Sards v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: Crl.Appeal.1965/2005. 12 (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (g) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 13. Learned counsel appearing for the appellant pointed out that the court below had failed to appreciate the evidence in the proper perspective and according to the learned counsel there is absolutely no evidence to show that the accused Crl.Appeal.1965/2005. 13 had committed the offences. Merely because the accused was seen sometime during the previous night of the day of the incident with the deceased, it does not lead to the conclusion that he was the culprit. Learned counsel highlighted that the prosecution has not been able to establish the motive for the act committed by the accused. So also it is contended that the motive alleged is not proved. 14. It was contended by the learned counsel for the appellant that before the trial court the accused did not have the advantage of engaging a counsel to defend him and that caused considerable prejudice to the accused. Learned counsel emphasised that the court below should have ensured that the accused was properly defended and in case it was found that he was unable to engage his own counsel, the court should have taken steps to engage a counsel for him. It is also contended that the court below has failed to consider the plea of private defence which arises from the evidence adduced in the case. In short, Crl.Appeal.1965/2005. 14 according to learned counsel, there is absolutely no evidence at all to show that it was the accused, who had committed the objectionable act. 15. Per contra, learned Public Prosecutor pointed out that the court below has considered the evidence in detail and has come to the conclusion that the circumstances brought out in evidence clearly point to the guilt of the accused. Learned Public Prosecutor drew attention of this court to the statement in the judgment, which clearly showed that legal aid was made available to the accused, but he refused to accept the same. Learned Public Prosecutor submits that in fact a senior counsel was engaged to defend him and after the charge was read over to the accused, he stated that he had no faith in his counsel and he did not want the assistance of any counsel at all. He insisted that he conducts the case on his own. 16. Learned Public Prosecutor also pointed out that even assuming that the motive is not established, that by itself is Crl.Appeal.1965/2005. 15 not a ground to reject the prosecution case. There are other items of evidence, which unerringly point to the guilt of the accused. According to the learned Public Prosecutor, the plea of self defence is baseless. There is nothing to indicate that the deceased was the aggressor and that the accused had acted in self defence. Learned Public Prosecutor pointed out that no grounds are made out to interfere with the judgment of the court below. 17. The body of the deceased was found in the lean to the auditorium of the Puthiyakavu temple. It cannot be disputed that the death of Shine was homicidal. The evidence of P.W.18, Forensic Surgeon taken along with Ext.P11 postmortem certificate show that the death was caused due to strangulation. In fact there is no serious dispute regarding this aspect in this case. 18. The next and the most important question that arises for consideration is, has the prosecution succeeded in establishing that it was the accused, who was responsible for the act which resulted in the death of late Shine. As already Crl.Appeal.1965/2005. 16 mentioned, the case is built on circumstantial evidence. 19. The evidence of P.W.1 is not of much significance except for the fact that he is the author of Ext.P1 first information statement. He had no direct knowledge about the incident. 20. Going by the forensic evidence and the testimony of P.W.18, it would appear that the death occurred after mid night of 9.11.1998 and in the early morning of 10.11.1998. 21. P.W.3 has deposed that he knows Shine very well and he is a resident nearby. He had occasion to meet Shine at about 10.15 p.m. at Puthiyakavu Junction on the previous day. P.W.3 claims that he was waiting for his friend, who was to arrive by about that time. This witness would say that when he had met Shine, the accused was with Shine and Shine had introduced him to PW.3. 22. P.W.4 is another witness, who claims to have seen the accused and the deceased together by about 11 p.m. on the eventful day. He conducts a tea shop at Puthiyakavu Junction. He Crl.Appeal.1965/2005. 17 would depose that both the accused and Shine came to his shop and had food from there. Shine gave him Rs.100/- and since P.W.4 did not have change, Shine told him that he would collect the balance on the next day. P.W.5 is yet another witness, who claims to have seen the deceased and the accused at about 10.30 p.m. on 9.11.1998. He too runs a tea shop near Puthiyakavu Junction. He would depose that the deceased and the accused came to his shop and purchased fish fry and omelet. P.W.6 Udyan, who is also related to Shine would say that on 9.11.1998 he was standing in the bus stop talking to his friends. He was attempting to raise funds for the treatment of his father. He happened to see the accused and the deceased alighting from a bus at Puthiyakavu Junction. He also claims that the deceased is very familiar to him and the accused was a classmate of Shine. When P.W.6 asked Shine to come to his house, Shine replied that he will come to his house after consuming the liquor that he had with him. Crl.Appeal.1965/2005. 18 23. P.W.7 would depose that late Shine and the accused had come to the bar and they had purchased half bottle Old Cask Rum. They had a peg at the bar itself and then left the place. 24. It needs to be noticed that these witnesses were not cross-examined at all. The claim of these witnesses that they had occasion to see the accused and the deceased together at the time mentioned by each one of them is not challenged at all. There is also nothing to show that these witnesses had any reason to falsely implicate the accused. It is therefore quite evident from the available evidence that the deceased and the accused were together on the previous night, or in other words they were last seen together. 25. In the decision reported in State of Goa v. Pandurang Mohite (AIR 2009 SC 1066), the Apex Court, after following the decisions reported in Kusuma Ankama Rao v. State of A.P. (AIR 2008 SC 2819) and in State of Goa v. Sanjay Crl.Appeal.1965/2005. 19 Thakran ((2007) 2 SCC (Cri.) 162), it was held as follows: “So far as the last seen aspect is concerned, it is necessary to take note of two decisions of this court. In State of U.P. v. Satish (2005(3) SCC 114) it was noted as follows: “22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P.Ws.3 and 5, in addition to the evidence of P.W.2.” In Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006(10) SCC 172) it was noted as follows: “27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused Crl.Appeal.1965/2005. 20 and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.” 26. It is therefore clear that once the prosecution has succeeded in establishing that the accused and the deceased were seen together and the time gap between that and the death are short, the accused has to explain as to how the incident had occurred. 27. The prosecution placed considerable reliance on the chemical analysis report namely Exts.P9 and P10. The allegation is that M.O.11 bath towel was used by the accused to strangulate late Shine. The evidence of P.W.12 discloses that during the relevant period the accused was working as a coolie at a construction site near his tailoring shop at Puthiyakavu. P.W.12 has stated that the accused had approached him and asked him whether he could give him a bath towel. He claims that he had Crl.Appeal.1965/2005. 21 purchased one bath towel, ie., M.O.11 and handed it over to the accused. P.W.3, the contractor had stated that he had engaged the accused for work for a day. He also stated that he had seen M.O.11 bath towel with the accused. While P.W.13 was not cross- examined at all, the cross examination of P.W.12 did not bring out anything in favour of the defence. 28. One may notice here that M.O.11 towel was recovered based on Ext.P5(a) confession statement said to have been given by the accused and the towel was seized as per Ext.P5 mahazar. P.W.5 was the witness to the seizure. The accused did not challenge the confessional statement said to have been given by him nor the recovery based on that statement. He had not cross- examined the witness, namely, P.W.11, P.W.5 and P.W.20 on this aspect. It is significant to notice that as per forensic report the fibre of the towel, namely M.O.11, matched with the fibre found on the cellophane tape sample taken from the neck of the deceased. Crl.Appeal.1965/2005. 22 29. Yet another circumstance relied on by the prosecution is recovery of M.Os.12, 13 and 14. They are the clothes said to have been worn by the accused and his chappals. They were recovered as per Ext.P6 mahazar and the relevant portion which led to the recovery is shown as Ext.P6(a). As already noticed Exts.P9 and P10 are the Forensic Lab Reports. M.Os.12 and 13 on chemical examination found contained blood stains belonging to 'A' group. The blood group of the accused, going by the available records, is 'B' group. No explanation whatsoever is offered by the accused with respect to these items of evidence.