IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 CRL.A.NO. 489 OF 2005() ---------------------------------- SC.272/2002 OF ADDL. SESSIONS COURT (ADHOC-2), THRISSUR .................... APPELLANT(S): ACCUSED ------------------------------------ BENNY, S/O.ARANGATH APPUNNI, AMBALLUR VILLAGE, ALAGAPPA NAGAR DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT --------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON 19/02/2009 DELIVERED THE FOLLOWING: A.K. BASHEER & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = CRIMINAL APPEAL No.489 of 2005 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of February, 2009 J U D G M E N T ---------------------- Thomas P.Joseph, J. The cadaver of a male aged about 45 years was found in a public pond called 'Njavarikulam' at Irinjalakuda about 2.4 kms. south- west of the Irinjalakuda police station on 9.11.1998 at about 9.00 a.m. Of the persons who thronged the area on seeing the ghastly site one Madhavan, a resident of Irinjalakuda came to the Irinjalakuda police station at 10.30 a.m. and told the Additional Sub Inspector what he had seen. The Additional Sub Inspector recorded his statement at 10.30 a.m. and registered a case under caption, 'unnatural death' under Section 174 of the Code of Criminal Procedure (for short, “the Cr.P.C.”). The Sub Inspector of that police station conducted inquest on the body of the deceased near the pond itself on the same day and caused photographs of the dead body to be taken. Dr.T.V.Velayudhan (late), Assistant Professor of Forensic Medicine, Medical College, Thrissur, conducted the postmortem examination. Since the dead body remained unidentified, it was given an unceremonial burial at the Public Cemetry at Lalur, Thrissur. The Circle Inspector of Police, Irinjalakuda investigated the case which allegedly revealed that the Crl.Appeal No.489 of 2005 -: 2 :- appellant who was financially weak wanted to raise money to purchase a bus of his own and with intend to whisk insurance money after causing the death of Thankappan (hereinafter referred as “the deceased”), fraudulently created documents, obtained a personal accident insurance policy in the name of the deceased for a sum Rs.5,00,000/- making himself as the nominee, paid premium and on the evening of 7.11.1998 caused the deceased to come to Irinjalakuda, he was taken to the Njavarikulam near boys high school at Irinjalakuda,intoxicated the deceased who was already drunk, appellant removed the shirt worn by the deceased and at a stage when the deceased was unable to take care of himself due to intoxication, pushed him into the pond and caused his death by drowning. Appellant was charged-sheeted for the offence punishable under Section 302 of the Indian Penal Code (for short, “the Code”). Learned Additional Sessions Judge found that the appellant had strong motive for commission of the crime, the deceased was seen last in his company near the place of occurrence before the incident, appellant had taken such personal accident policies showing himself as nominee in the case of two other persons also, prosecution proved the recovery of the shirt worn by the deceased on the information given by the appellant and held the appellant guilty under Section 302 of the Crl.Appeal No.489 of 2005 -: 3 :- Code. He was convicted and sentenced to undergo imprisonment for life. That conviction and sentence are under challenge. 2. The prosecution produced the following evidence. P.W.5 is the wife and P.W.3 is the son of the deceased. P.W.5 claimed that her husband, the deceased had left their house at Amballur on 7th Saturday (1998) at 5.45 p.m. wearing M.Os.1 to 3, lunki, shuddy and shirt and thereafter she had not seen him alive or dead. At the time of leaving the house deceased had told her that he has some work at the house of 'Benny' and that 'Benny' had asked him to go to Irinjalakuda. P.W.5 learnt about the death of the deceased on the next Monday by 11.00 p.m. P.W.3, son of the deceased has only hearsay information about the deceased leaving their house on the evening of 7.11.1998. Getting information (that a dead body was seen in the Njavarikulam pond) himself, his paternal uncle and another person went to the Irinjalakuda police station on the morning of 10.11.1998. By then the dead body had been buried at Lalur. P.W.3 identified the dead body as that of his father from the photographs shown to him and M.Os 1 and 2, the lunki and shuddy found on the dead body. P.W.3 claimed that M.O.3, shirt belonged to him, his father (the deceased) was wearing on the fateful day. P.W.3 stated that they learnt about the personal accident insurance policy taken in the Crl.Appeal No.489 of 2005 -: 4 :- name of deceased with the appellant as the nominee. Appellant obtained the death certificate of the deceased (to facilitate issue of the insurance money) without their knowledge. It is also the version of P.Ws.3 and 5 that the deceased was in the habit of taking liquor often and used to stay away from their house, sometimes for a few days. P.W.4 is a neighbour of the deceased. She claimed that there was a call to her residential phone by an unidentified person informing her about the death of the deceased. P.W.7 is a neighbour of the deceased. On 9.11.1998 he was told that the deceased was missing since two days and that a dead body was seen in a pond at Irinjalakuda. Himself, younger brother of the deceased and others went to the Irinjalakuda police station on 9.11.1998. On the way when their vehicle was slowed down near a hump at Amballur Junction the appellant asked them whether they had learned about the matter relating to the deceased. To their query as to how the appellant learnt about that, he told that information was conveyed to their shop as well (it has come in evidence that a close relative of the appellant is running a bakery at Junction). P.W.7 and others went to the Irinjalakuda police station. Police told them that photographs of the dead body have been taken and that it could be shown to them the next day. On 10.11.1998 P.W.3 (son), P.W.7 and others went to the Crl.Appeal No.489 of 2005 -: 5 :- police station where P.W.3 identified the dead body from its photo. 3. P.Ws.6, 8 and 22 are examined to prove that the deceased was seen alive last in the company of the appellant. P.W.6 saw the appellant and deceased talking at the Amballur bus stop on 7.11.1998 at about 6.00 p.m. The deceased boarded Shalimar bus bound to Irinjalakuda. The appellant went towards west in haste. P.W.8 saw the appellant boarding a bus bound for Irinjalakuda at Amballur junction on 7.11.1998 after 6.00 p.m. P.W.22 is a political activist of Irinjalakuda and claimed that while himself and party workers were engaged in writing slogans in connection with party activities on the wall near the court building at Irinjalakuda on 7.11.1998 at about 7.15 p.m. he saw the appellant and the deceased going towards east from the side of the bus stand. From the gait of the deceased P.W.22 felt that the deceased was drunk. At about 8.00 p.m. the same day P.W.22 found the appellant alone as standing in front of the post office at Irinjalakuda. Prosecution examined P.W.29 to say that he had seen the appellant and deceased near Njavarikulam on the night of 7.11.1998 but he refused to support the prosecution. 4. P.W.1, first informant claimed that learning that the dead body of a male was found in Njavarikulam on 9.11.1998 at about Crl.Appeal No.489 of 2005 -: 6 :- 9.00 a.m. he went there, saw the dead body and gave information to the police (Ext.P1). P.W.28, Additional Sub Inspector recorded Ext.P1 and registered the case on 9.11.1998 at about 10.30 a.m. P.W.32, Sub Inspector conducted inquest on the dead body on the bank of Njavarikulam on 9.11.1998 from 11.15 a.m. onwards and seized M.Os.1 and 2, lunki and shuddy worn on the dead body. Exhibit P2 is the inquest report. P.W.2 is an attester in Ext.P2. P.W.32 claimed that he got photographs of the dead body taken by the owner of Janatha Studio and sent the dead body for postmortem examination. Thereafter the dead body was handed over to the police constable for burial since then it was not identified by anybody. Dr.T.V.Velayudhan, Assistant Professor of Forensic Medicine, Medical College Hospital, Thrissur conducted the postmortem examination on 9.11.1998 at 3.15 p.m. and issued Ext.P38 (since the medical officer who conducted the autopsy had expired, Ext.P38 was proved through P.W.37, Circle Inspector). No objection was raised on behalf of the appellant for proving Ext.P38 through P.W.37). In Ext.P38 the opinion regarding cause of death is stated as “drowning”. P.W.35, owner of Janatha Studio took the photographs of the dead body on 9.11.1998. Ext.P34 series are the photographs and negatives. Ext.P35 is the bill dated 9.11.1998 for the charges for taking those photographs. P.W.9 was Crl.Appeal No.489 of 2005 -: 7 :- the Registrar of births and deaths, Irinjalakuda Municipality during the relevant time. He deposed that an application (Ext.P3) was received in his office on 10.11.1998 for issue of the death certificate of the deceased. Accordingly certificate was issued on 17.11.1998. According to P.W.9, that certificate was received by the appellant who made an endorsement to that effect on the back of Ext.P3. Exhibit P3 (a) is that endorsement. P.W.38 was the Registrar of births and deaths in the same office during the time of trial and produced the relevant register for issue of certificate in respect of the deceased on 17.11.1998. Exhibit P47 is the copy of the relevant page of that register. 5. P.W.11 was the agent of M/s.United India Insurance Company, Irinjalakuda during the time of the incident. He was examined to say that the policy in the name of the deceased was taken by the appellant through him and that the appellant had paid the premium. PW.11 did not support the prosecution. He admitted that as desired by the appellant he had given to the appellant 4 or 5 proposal forms of Janatha Personal Accident Policy. Exhibit P4 is one of those proposal forms. P.W.11 denied that the appellant had handed over the claim form (for the sum assured) to him. P.W.11 later learnt from the police that the policy was taken in the name of the deceased. Crl.Appeal No.489 of 2005 -: 8 :- P.W.10 is the investigator attached to the said Insurance Company and claimed that as per the direction from the Company he investigated the claim for the sum assured under the policy and as part of that, went to the house of the deceased and talked to P.W.5, wife of the deceased. She had no information about the deceased taking such a policy and pleaded ignorance about the signature of the deceased in the proposal form (Ext.P4). P.W.5 then told P.W.10 that she thought that what is contained in Ext.P4 is not the signature of her husband. P.W.10 verified the signature of the proposer (the deceased) in Ext.P4 with the signature of the deceased in the various documents in the custody of the Co-operative Bank, Amballur and conducted local enquiries. Relatives of the deceased told him that deceased had not having financial capacity to pay the premium. P.W.27 is the Secretary of the Co-operative Bank, Amballur. He proved Exts.P27 and 28 series original documents containing the signature of the deceased. 6. P.W.12 is the Senior Manager of M/s.United India Insurance Company, Irinjalakuda branch and produced Exts.P6 and P7, copy of schedule and proposal form for the personal accident policy taken in the name of Smt.Thankam (P.W.14) for Rs.5,00,000/-. As per Ext.P7, the nominee is “A.A.Benny, Arangath House”. P.W.13 is the Development Officer of that Company and is an attester in Ext.P8, Crl.Appeal No.489 of 2005 -: 9 :- mahazar prepared by P.W.37 (C.I.) for seizure of Exts.P6 and P7. P.W.14 (Thankam) is a retired nursing assistant and the aunt of the appellant. P.W.20 is the son of P.W.14. P.Ws.14 and 20 were examined to say that without the consent or knowledge of P.W.14, appellant took a personal accident policy in the name of P.W.14 for Rs.5,00,000/- making himself as the nominee and paid the premium. P.Ws.14 and 20 refused to support the prosecution. P.W.14 claimed that she signed Ext.P7 proposal form and paid Rs.1,250/- as premium. Later she cancelled that policy. She nominated the appellant as her nominee in that policy. P.W.20 stated that he was not aware of P.W.14 taking the policy. According to P.W.20, P.W.14 (his mother) received the policy by post. 7. P.W.18 is the younger brother and P.W.19 is the son of one Bhaskaran who died due to cancer on 6.9.1998. According to the prosecution appellant had taken a policy in the name of Bhaskaran without his consent or knowledge making the appellant as nominee and later tried to cause the death of Bhaskaran by administering liquor mixed with poison. P.W.18 stated that Bhaskaran was in the habit of taking drinks and to his knowledge, Bhaskaran had not taken any policy of insurance. After the death of Bhaskaran, the policy in his name was received by post. Some time before death, Bhaskaran had Crl.Appeal No.489 of 2005 -: 10 :- told him that “Benny” had given him a bottle of liquor and asked P.W.18 whether he could consume it. P.W.18 smelt the liquor and told Bhaskaran that it was not good and advised Bhaskaran not to consume it. P.W.19 claimed that Ext.P17 is the policy of insurance in the name of Bhaskaran received by post after his death. He claimed that Bhaskaran had entrusted the bottle (referred by P.W.18) to him. He produced the bottle before the police. When M.O.4, bottle said to be seized by P.W.37 (as produced by P.W.19) was shown to P.Ws.18 and 19, they were not able identify the same but stated that the bottle looked like M.O.4. P.W.21 is an attester in Ext.P18, mahazar dated 12.12.1998 for seizure of M.O.4. M.O.4 with contents was sent to the Chemical Examiner's Laboratory, Ernakulam for examination. Exhibit P45 is the report. In Ext.P45 it is stated that Ethyl Alcohol and poisonous organo chloro compound were detected in the sample. Ethyl Alcohol content in the sample was 21.35% by volume. It is also reported that toxic organo chloro compounds are commonly used as insecticides, herbicides, fungicides, etc. 8. P.W.33 is the Senior Manager of M/s.United Insurance Company. He produced Ext.P4 (proposal form for issue of policy in the name of the deceased) and Ext.P32 original policy in the name of the deceased. According to P.W.33, the policies in the name of Bhaskaran Crl.Appeal No.489 of 2005 -: 11 :- and deceased were taken through P.W.11, insurance agent who paid the premium and receipts for payment of premium were also given to P.W.11. Exhibit P13 is the proposal form for issue of policy in the name of Bhaskaran. Exhibit P15 is the application for issue of claim form submitted after the death of the deceased (those documents were allegedly seized by the Investigating Officer from P.W.11). P.W.33 stated that Ext.P15, application for claim form was submitted by P.W.11, agent and since the cause of death of the insured (deceased) was not stated, it was returned to P.W.11 to complete the form. At the time of submitting Ext.P15, the insurance agent (P.W.11) had submitted along with it the death certificate and copy of FIR and postmortem certificate in respect of the deceased. P.Ws.15 and 16 are the attesters in Exts.P11 and P12, mahazars as per which documents produced by P.W.33 were seized by the Investigating Officer (P.W.37). 9. P.W.34 was the Head Constable of Irinjalakuda police station during the relevant time. He stated that appellant came to that station some time in November, 1998 with a request for the issue of copy of FIR and postmortem certificate concerning of the deceased. P.W.34 obliged that request and issued the copies. 10. P.W.17 is the Village Officer who prepared Ext.P16, site Crl.Appeal No.489 of 2005 -: 12 :- plan of Njavarikulam where the dead body was seen on 9.11.1998. 11. P.W.37, Circle Inspector conducted the investigation from 6.12.1998 onwards. He claimed to have arrested the appellant on 8.12.1998 at about 7.30 p.m. He questioned the appellant on the next day (9.12.1998). Appellant told P.W.37 that “he has tied the shirt on a granite stone and dropped it in 'Njavarikulam' and if taken there, will show that place” (Ext.P39 is the relevant portion of the statement of the appellant). Accordingly as led by the appellant, P.W.37 reached Njavarikulam on 9.12.1998 at 8.15 a.m. and from the place pointed out by the appellant recovered the shirt (M.O.3) seen tied around a granite stone (M.O.5). Exhibit P20 is the mahazar prepared by P.W.37 for the recovery. On the appellant pointing out the place of occurrence (Njavarikulam) P.W.37 prepared a separate mahazar for the place of occurrence (Ext.P21) on 9.12.1998 at about 4.00 p.m. P.W.37 searched the house where the appellant was residing and seized two receipts for payment of premium in the name of the deceased and Bhaskaran (Ext.P37 series) and two proposal forms for Janatha Personal Accident Policy. The said documents were seized as per Ext.P36, search list. P.W.37 seized M.O.4, bottle (produced by P.W.19) on 12.12.1998 as per Ext.P19 mahazar. Exhibit P23, claim form produced by P.W.11 was seized as per Ext.P22, mahazar dated Crl.Appeal No.489 of 2005 -: 13 :- 14.12.1998. Exhibits P6 and P7 (concerning the policy in the name of P.W.14, Smt.Thankam), were seized as per Exts.P8 and P9 respectively on 14.12.1998. Documents produced by P.W.33, Senior Manager of the Insurance Company were seized as per Exts.P11 and P12. Exhibit P17, original policy in the name of Bhaskaran was seized as per Ext.P24. Exhibit P3, application for issue of death certificate (proved through P.W.9, Registrar of births and deaths) was seized as per Ext.P25. Documents produced by P.W.27, Secretary of the Co- operative Bank, Amballur (Exts.P27 and 28 series containing signature of the deceased) were seized by P.W.37 as per Ext.P40. In the course of investigation P.W.37 obtained the specimen handwriting and signature of the appellant (Ext.P48 series). The disputed handwritings/signatures along with specimen handwritings/signatures were sent to the handwriting expert for opinion. Exhibit P44 is the report. (specimen handwritings/signatures of the appellant are marked by the expert as S1 to S30). 12. P.W.23 is the attester in Ext.21 and Ext.P20, mahazar for recovery of M.Os.3 and 5. He supported the prosecution and identified M.O.3. He was not sure about the identity of M.O.5, granite stone. P.W.36 is the attester in Ext.P36, search list as per which P.W.37 searched the house where the appellant was staying and Crl.Appeal No.489 of 2005 -: 14 :- seized Ext.P37 series, receipts for payment of premium for the policies in the name of Bhaskaran and the deceased. According to P.W.36, receipts were seized from underneath the bed sheet in the bed room on the upstairs of the house where the appellant was residing. P.Ws.24 to 26 are also attesters in the mahazars prepared by P.W.37. P.W.30 verified investigation and submitted final report in the case. 13. Appellant was questioned under Section 313 Cr.P.C. He denied the various circumstances attributed against. He claimed that it is not correct to say that P.W.37 seized any document from the house where he was residing. He claimed that the house (referred to in Ext.P36 search list prepared by P.W.37) belonged to his elder brother where the elder brother and family are residing. Himself is staying about 9 kms. away from that house at Veluppadam Colony. None of the documents allegedly seized by P.W.37 did contain his signature. P.Ws.3 and 5 (son and wife of the deceased) had forged documents to make it appear that the deceased who was actually missing was dead, to claim the sum assured under the policy and obtained favourable verdict in their favour from the Consumer Disputes Redressal Forum. Exhibit D1 is the certified copy of the order dated 25.5.2001 in O.P.No.943 of 1999 of the Consumer Crl.Appeal No.489 of 2005 -: 15 :- Disputes Redressal Forum, Thrissur. Exhibit D1 states that P.Ws.3 and 5 claimed that the deceased had a Janatha Personal Accident Policy (Ext.P32 is the original) for the period from 3.11.1998 to 2.11.2008 for Rs.5,00,000/-. P.W.11 is the agent who enrolled the deceased in the said policy It is stated in Ext.D1 that P.Ws.3 and 5 who are the legal heirs are entitled to get the assured sum of Rs.5,00,000/- from the Insurance Company. Insurance Company while admitting the issue of policy in the name of deceased contended that the policy is void since the policy was taken fraudulently by the nominee (appellant) and the deceased was murdered on 9.11.1998. Appellant gave intimation for getting the claim form. Investigation conducted through P.W.10 revealed that the murder of the deceased was planned and executed by the appellant and hence they repudiated the claim made by P.Ws.3 and 5. The Consumer Disputes Redressal Forum as per Ext.D1, rejected the contention of the Insurance Company and directed it to pay the sum of Rs.5,00,000/- to P.Ws.3 and 5. 14. It is contended by the learned counsel for appellant that identity of the dead body is not established, death is not proved to be homicidal, the motive alleged is not proved, evidence produced by the prosecution is neither reliable nor sufficient and that the alleged Crl.Appeal No.489 of 2005 -: 16 :- recovery of M.Os.3 and 5 and seizure of Ext.P37 series cannot be relied on. Learned Public Prosecutor in response contended that the chain of circumstances unerringly point to the guilt of the appellant. He also contended that evidence revealed that the appellant had obtained similar policies in the name of (P.W.14, Thankam) and late Bhaskaran (father of P.W.19) without their consent or knowledge making himself the nominee at a time when there was no occasion for P.W.14 or Bhaskaran to make him the nominee which is admissible under Section 14 of the Indian Evidence Act (for short, “the Act”). Learned Public Prosecutor argued that there is no reason to interfere with the finding entered by the learned Additional Sessions Judge. 15. We shall refer to the contention that the identity of the Corpus delicti is not established. We referred to the evidence of P.W.3, son of the deceased that he identified the dead body as that of his father, Thankappan from the photographs shown to him at Irinjalakuda police station on 10.11.1998. He also identified M.Os.1 and 2, lunki and shuddy as that of the deceased. It was P.W.32, Sub Inspector who conducted the inquest (Ext.P2 is the report), seized M.Os.1 and 2 from the dead body and caused the photographs of the dead body to be taken. P.W.35, owner of Janatha Studio proved Ext.P34 series (photographs) and Ext.P35 (cash bill dated 9.11.1998 Crl.Appeal No.489 of 2005 -: 17 :- issued by P.W.35 for the same). Learned counsel contended that the so called identification made by P.W.3 at the police station is not substantive evidence and that P.W.3 has not identified the dead body from the photographs (Ext.P34 series) in court. Identification of the dead body with the aid of M.Os.1 and 2 is not safe. Learned counsel also referred to the evidence of P.Ws.3 and 5, son and wife of the deceased that the deceased was a habitual drunkard and used to stay from the house for a few days. 16. In Ext.P2, inquest report prepared by P.W.32 on 9.11.1998 it is stated that the dead body