IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 CRL.A.No. 86 of 2006(C) ----------------------- SC.145/2005 of SESSIONS COURT, KOTTAYAM CP.14/2005 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... APPELLANT/ACCUSED NO.1: ----------------------------------------- R.SHAJI, S/O.RAGHAVAN, THOOMPUNKAL HOUSE, VALAYADU KARA, AYMANAM VILLAGE, RESIDING AT 18/351, THOOMPUNKAL TOURIST HOME, KOCHI CORPORATION, PALLURUTHY KARA, RAMESWARAM VILLAGE, KOCHI TALUK. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.P.S.PRADEEP RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CR.NO.110/05 OF ETTUMANOOR POLICE STATION). PUBLIC PROSECUTOR SHRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2009, ALONG WITH CRA NO.193 OF 2006 & CRA NO.1796 OF 2007, THE COURT ON 10.12.2009, DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal Nos. 86, 193 of 2006 & 1796 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2009. JUDGMENT Bhavadasan, J, The case from which these appeals arise reveals a gruesome and horrendous murder by the guardian of law along with four others, three of whom are mercenaries. Initially only accused Nos.1 and 2 were available for trial. Their trial ended in conviction and both of them were sentenced to suffer imprisonment for life. They were also sentenced for some other offences also. Later accused Nos. 3 and 4 surrendered and they were also tried. The details of that case are not relevant for the present purpose. 2. Crl.Appeal No.86 of 2006 is by the first accused and Crl.Appeal 193 of 2006 is by the second accused against their conviction and sentences. The State has come up in appeal in Crl.Appeal No.1796 of 2007 seeking enhancement of sentence. The State canvasses for capital punishment. Crl.Appeal Nos.86 & 193/06 &1796/07. 2 3. The incident which gave rise to this case seems to have occurred in the evening of 15.2.2005. Accused Nos.1 and 2 and the deceased were all related to P.W.1. Praveen, the victim, was earlier employed in a bus operated by the wife of the first accused, who was then working as the Deputy Superintendent of Police. Some time in November, 2004, he left the employment under first accused for certain reasons and took up employment with a mattress shop functioning at Ettumanoor. Praveen was working as driver for the shop. On 15.2.2005, as usual, Praveen went for work. But he did not return home. Praveen's father, namely, P.W.1, was employed at Trivandrum. He was informed about the absence of Praveen. He made frantic enquiries and search for his son, but did not succeed. Therefore, on 18.2.2005 he went to Ettumanoor Police Station and lodged Ext.P2 First Information Statement. P.W.69, the A.S.I. attached to the police station recorded the same and registered Crime No.110 of 2005 under the caption 'man missing' under Ext.P2(a) FIR. In the Crl.Appeal Nos.86 & 193/06 &1796/07. 3 meanwhile, two human legs were found floating in the back waters beneath Cheepumkal bridge. Police was informed about the same. The first information statement regarding that incident was given as Ext.P86 and was recorded by P.W.68, who was the Sub Inspector of Kottayam West Police Station. He registered Crime No. 103 of 2005 under Ext.P6(a) FIR. The legs were retrieved with the assistance of P.W.17 and Ext.P8 is the relevant report. After the inquest report, the limbs were sent for postmortem examination. Ext.P87 is the inquest report. Meanwhile, P.W.73, the Scientific Assistant attached to District Mobile Laboratory collected samples of hairs from the legs. P.W.1 was informed about the said fact and he went to the Medical College and identified the legs as those of his son, namely, Praveen. P.W.71 conducted postmortem examination of the lower limbs and Ext.P92 is his report. Three incised wounds were noticed by the Forensic Surgeon. The opinion given was that they did not appear to be antemortem injuries. On 19.2.2005 information was received in Crl.Appeal Nos.86 & 193/06 &1796/07. 4 the Vaikom Police Station that a torso in a plastic sack was found floating on the eastern side of the Vembanadu lake, which is north to the Thanneermukkom bund. P.W.17, the Circle Inspector of Police, Vaikom was informed and Crime No.99 of 2005 was registered as per Ext.89 FIR. P.W.1 identified the torso as that of his son. P.W.17 conducted inquest and Ext.P90 is the relevant report. It so happened that P.W.17 happened to see two upper limbs floating in the water nearby and he had them retrieved. P.W.1 identified those limbs as that of Praveen. M.Os. 1 to 3 were recovered from the torso retrieved from the lake. The Scientific Assistant, who was assisting the Circle Inspector took various samples. As per the directions issued by the Superintendent of Police, Kottayam, by order No.7893/05 dated 19.2.2005, the three crimes were consolidated and investigation was entrusted to P.W.77, the Dy.S.P., Kottayam. His investigation revealed the involvement of accused Nos. 1 and 2. On 24.2.2005 he had arrested them. During investigation, P.W.77 was informed that a Crl.Appeal Nos.86 & 193/06 &1796/07. 5 human head enclosed in a sack was floating in the back waters of Cochin. P.W.77 rushed to the place and had the skull retrieved from the water. P.W.1 identified the same. Inquest was conducted and Ext.P15 is the report. The accused were produced before court and their custody was obtained by the police. Based on the confession statements said to have been given by the first accused, several articles were recovered. P.W.77 recorded statements of witnesses and prepared the necessary documents. After completing the investigation, he laid charge before court. 4. JFCM, Ettumanoor took cognizance of the offence. At the time of taking cognizance accused Nos.3, 4 and 5 had made themselves scarce. The court on appearance of accused Nos.1 ad 2 completed the legal formalities. The said court found that the offences are triable exclusively by a court of Sessions and therefore committed the case against those accused persons to District Court, Kottayam. The said court on receipt of records issued summons to the first and second accused. They entered Crl.Appeal Nos.86 & 193/06 &1796/07. 6 appearance. After hearing both sides, charge was framed for offences punishable under Sections 506(2), 466, 471, 302, 201 and 364 read with Section 120B of the Indian Penal Code as against the first accused and for offences punishable under Sections 302, 201 and 364 read with Section 120B as against the second accused. Both accused pleaded not guilty to the charges and claimed to be tried. Prosecution therefore examined P.Ws. 1 to 77 and had Exts.P1 to P140 marked. M.Os. 1 to 76(d) were identified and marked. After the close of the prosecution evidence the accused were questioned under Section 313 Cr.P.C. 5. They denied all the incriminating circumstances brought out against them and maintained that they were innocent. The first accused had stated that Praveen was employed in the bus run by his wife. Since he committed dereliction of duty and also misbehaved with his wife, Praveen was sacked. The issue regarding the misconduct with his wife was settled between the two families. On 18.2.2005 at about 10.30 p.m. P.W.77, Crl.Appeal Nos.86 & 193/06 &1796/07. 7 Dy.S.P.Muraleedharan, P.W.74 C.I. Anto and Assistant Commissioner of Police, Mattancherry Mr. Lailaram had come to his house at Palluruthy and taken him into custody by force. He was produced before the court on the next day. They did not allow him to talk to anybody. He denied that he had given any statement to the police. He also claimed that nothing had been recovered in pursuance to the statements alleged to have been given by him. He denied that he had taken P.W.77 to any place or shown him any substance. He claims to be innocent and that he had not committed an act which should constitute an offence. 6. The second accused maintained that he had no land phone in his house. M.O.19 mobile phone, while he was at home was being used by others also. On 15.2.2005 about evening his brother Aneesh had used the mobile phone several times. On 19.2.2005, according to him, he was picked up from his house by the police and produced before the court only on 25.2.2005, till then he was kept in illegal custody. He denied of having given any Crl.Appeal Nos.86 & 193/06 &1796/07. 8 statement to the police and also taking them to any place to show them any article. He claims to be innocent. He too maintained that he had not committed any act, which should constitute an offence. 7. Finding that the accused could not be acquitted under Section 232 Cr.P.C., after hearing both sides the District Court asked the accused to enter on their defence. The defence examined D.W. 1 and had Exts.D1 to D35 marked. After hearing both sides, the court below on an evaluation of the materials before it came to the conclusion that the accused are guilty of the offences punishable under Sections 302, 201 and 364 read with Section 120B IPC. The first accused was acquitted of the offences punishable under Section 506(ii), 466 and 471 IPC. For the offences for which the accused were found guilty, the first accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/-, in default of payment of which to undergo simple imprisonment for one year for the offence punishable under Section 302 read with Section 120B IPC. The second accused was Crl.Appeal Nos.86 & 193/06 &1796/07. 9 sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of which to suffer simple imprisonment for three months for the offence punishable under Section 302 read with Section 120B IPC. Both the accused were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,000/- each in default of payment of which to undergo simple imprisonment for three months each for the offence punishable under Section 201 read with Section 120B IPC. For the offence punishable under Section 364 read with Section 120B IPC, both of them were sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of Rs.5,000/- each, in default of payment of which to suffer simple imprisonment for a period of one year each. The substantive sentence was directed to run concurrently. It is also directed that if the fine amounts are realised, Rs.1,00,000/- will be given to P.W.1 as compensation under Section 357(1) of Cr.P.C. It is also directed that if appropriate Government seeks to exercise powers under Crl.Appeal Nos.86 & 193/06 &1796/07. 10 Sections 432 and 433 Cr.P.C. as the case may be, the accused would be entitled to set off as per law. First and the second accused challenged the above conviction and sentence. 8. The prosecution case is that Praveen, the deceased, was initially employed with the first accused. Since he betrayed the confidence and faith reposed in him by the first accused, in that Praveen developed an illicit relationship with the wife of first accused, he had to leave the services of first accused. First accused nursed a grudge against him and finally it resulted in the murder of Praveen by the first accused with the aid of accused Nos.2 to 5. The facts are that on 15.2.2005, the second accused in furtherance of the conspiracy by the accused persons managed to take deceased Praveen along with him from Ettumanoor to Kottayam. Thereafter they had food in the hotel and then went for a movie. While on the way back from Kottayam to Ettumanoor at the place called Arpookkara, in furtherance of the conspiracy accused Nos. 3 to 5 took into their custody Praveen, who was brought on his motor Crl.Appeal Nos.86 & 193/06 &1796/07. 11 bike by accused No.2. Praveen was transported into a Maruti car alleged to have been driven by the first accused. The further case is that Praveen was strangulated to death and thereafter his body was mutilated. The first accused is then said to have disposed off various parts of the body of Praveen in different places. 9. The challenges to the trial court judgment made by the accused are mainly three fold. They are: (i) There is nothing to show that the parts of the body retrieved are that of Praveen,; (ii) The evidence of P.Ws. 7, 8, 9, 10, 12 and 13, on which the court below has placed considerable reliance, were not reliable and acceptable; and (iii) the various recoveries alleged to have been made based on the confession statement said to have been given by the first accused suffers from both legal and factual infirmities and is not acceptable in law. Therefore, those items of evidence will have to be eschewed. Crl.Appeal Nos.86 & 193/06 &1796/07. 12 10. Before going into the issues agitated before this court, it needs to be noticed that the case is built on circumstantial evidence. 11. It is well settled that while appreciating circumstantial evidence, it is stated that the courts must adopt a very cautious approach and should record the conviction only if all the links in the chain are complete, pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstances relied on must have been fully established and must be consistent only with the hypothesis of guilt. But it is not to say that the prosecution must meet each and every hypothesis put forward by the defence, however far fetched or fanciful it may be. The prosecution evidence must not be Crl.Appeal Nos.86 & 193/06 &1796/07. 13 rejected on the slightest doubt because law permits rejection, if the doubt is reasonable and not otherwise. 12. These aspects had been considered in a number of decisions. It is unnecessary to refer to all of them. In the decision reported in Chattar Singh v. State of Haryana (AIR 2009 SC 378), the Apex Court held as follows: “It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to Crl.Appeal Nos.86 & 193/06 &1796/07. 14 be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. We may also make a reference to a decision of this Court in C.Chenga Reddy and Ors. v. State of A.P. ((1996) 10 SCC 193, wherein it has been observed thus: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....” In Padala Veera Reddy v. State of A.P. And Ors. (AIR 1990 SC 79)l, it was laid down that when a case Crl.Appeal Nos.86 & 193/06 &1796/07. 15 rests upon circumstantial evidence, such evidence must 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 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 none 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.” In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl. L.J 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the Crl.Appeal Nos.86 & 193/06 &1796/07. 16 facts so established must be consistent only with the hypothesis of guilt. Sir Alfred Wills in his admirable book “Wills' Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and in capable of explanation, upon any other reasonable hypothesis that that of his guile, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” 13. In the decision reported in Ujjagar Singh v. State of Punjab ((2009) 1 SCC (Cri) 272), it was held as follows: Crl.Appeal Nos.86 & 193/06 &1796/07. 17 “We have considered their arguments very carefully. In Mahmood v. State of U.P., it has been observed that in a case dependent wholly on circumstantial evidence, the court must be satisfied- “(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt; (b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and (c) that the circumstances, taken collectively, are incapable of explanation of any reasonable hypothesis save that of the guilt sought to be proved against him.” In this case this court held that the omission of the prosecution, inter alia, to have the fingerprints found on the alleged murder weapon was fatal to the prosecution story.” In sharad Birdhichand Sarda v. State of Maharashtra, this court discussed the ratio of the judgments in Hanumant Govind Nargundkar v. State of M.P., Tufail v. State of U.P., Ram Gopal v. State of Maharashtra and Shivaji Sahabrao Bobade v. State of Maharashtra and observed thus: Crl.Appeal Nos.86 & 193/06 &1796/07. 18 “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.” It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be proved' and must be or should be proved' as was held by this court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: “19...... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is 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 Crl.Appeal Nos.86 & 193/06 &1796/07. 19 (5) 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.” Mr. Goburdhun has also cited Mahmood v. State of U.P., Shankarlal Gyarasilal Dixit v. State of Maharastra, Sharad Birdhichand Sarda v. State of Maharashtra, Omwati v. Mahendra Singh, Sudama Pandey v. State of Bihar and Ramreddy Rajesh Khanna Reddy v. State of A.P. In support of his plea relating to the evaluation of circumstantial evidence. These judgments have broadly followed the principles laid down in the judgments referred to above and need not therefore be dealt with by us in extenso. It must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. It is in this background that we must examine the circumstances in the present case.” Crl.Appeal Nos.86 & 193/06 &1796/07. 20 14. In the decision reported in Vinay D. Nagar v. State of Rajasthan ((2008) 5 SCC 597) it was held as follows: “The principle of law is well established that where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” Learned counsel appearing for the appellants referred to the following decisions in this regard: (i) Bodhraj v. State of J&K ((2002)8 SCC 45). (ii) Ramreddy Rajesh Khanna Reddy v. State of A.P. Crl.Appeal Nos.86 & 193/06 &1796/07. 21 ((2006) 3 SCC (Cri) 512). (iii) Venkatesan v. State of Tamil Nadu ((2009) 8 SCC 456). (iv) Mousam Singha Roy v. State of W.B. ((2003) 12 SCC 377). (v) State of Goa v. Sanjay Thakran ((2007) 2 SCC (Cri) 162). None of the decisions has taken a different view from the decisions referred to earlier. 15. The first of the issues agitated by the appellants is regarding the identity of the parts of the body said to have