IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 CRL.A.No. 2296 of 2006 ----------------------------------------- APPELLANT(S): ACCUSED: -------------------------------------- AJITH KUMAR @ AJI, S/O.GOPI, AGED 35, AMBATTU HOUSE, 4 CENT COLONY, PUKKATTUMUGHAL, EDATHALA, ALUVA EAST VILLAGE. BY ADV. SMT.AYSHA YOUSEFF RESPONDENT(S): COMPLAINANT: ----------------------------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADDL. DGP SHRI P. N. SUKUMARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 6.7.2010, THE COURT ON 21.1.2011 DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ CRL.APPEAL No.2296 of 2006-D ---------------------------------------------- Dated, this the 21st January, 2011 J U D G M E N T K.M.Joseph, J. Appellant stands convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/-. He further stands convicted under Section 449 and Section 382 of the IPC and sentenced to further imprisonment for five years each thereunder besides fine of Rs.5,000/- on each count, the substantial sentences to run concurrently. 2. The case alleged by the prosecution briefly is as follows: Deceased Elamma was residing alone in a four cents colony. On 18th August, 2003 she was found dead. Upon her brother (Pw1) being informed and confirming her death he lodged complaint. The body was in a putrefied stage and after postmortem it was confirmed that she was beaten to death. Investigation revealed that the appellant who was staying in the locality had on 13.8.2003 trespassed into the house of the deceased hit her on the head with a wooden log and after CRL.APPEAL No.2296 of 2006 -2- she was killed, robbed her of gold chain. 3. Before the Court of Sessions to which it was made over the prosecution examined Pws. 1 to 15. Exts.P1 to P22 were marked. Material Objects were identified and marked as MOs.1 to 13. The appellant did not adduce any defence evidence. 4. Learned counsel for the appellant would urge before us the following contentions. There is no reliable evidence against the appellant for the Court to enter the verdict of guilty against the appellant. The Court below has itself disbelieved the prosecution version about the recovery of wooden log with which it was alleged that the appellant caused the fatal injury. The only other item of evidence which is used against the appellant is the recovery of gold necklace. He would point out various circumstances in an attempt to contend that the recovery is suspect and further that even if it is found that the recovery is found acceptable there is no reliable evidence to establish that the chain was the one which belonged to deceased Elamma. He would contend that when the evidence against the appellant is only recovery in a case charged under Section 302 in particular, the Court would insist on the higher standard of proof and it would be entirely unwise and illegal to base the conviction on a CRL.APPEAL No.2296 of 2006 -3- suspect recovery. He would contend that Pw1 who is the brother of the deceased has in Ext.P1 FI Statement given on 18.8.2003 stated that he saw the deceased last on 15.8.2003. He would submit that this completely destroys the edifice of the prosecution case that the deceased was done away with on 13.8.2003. He submits that in order to square the death with the date on which MO-1 necklace was allegedly pawned, the prosecution has made an attempt to make the date of death as 13.8.2003. There is no evidence to show that the incident occurred on 13.8.2003. He would contend that the medical evidence adduced in the case would belie the prosecution case that the death took place on 13.8.2003. He would submit that the medical evidence would show that the death was caused between 72 to 120 hours before the postmortem. The postmortem was done on 19.8.2003. If that be so, he would submit that it is inconceivable that the death took place on 13.8.2003. He further contended that the medical evidence is to the effect that there will be liquefaction of the brain up to a maximum of 120 hours. He would contend therefore that it is not possible to accept the case of the prosecution that the death took place on 13.8.2003. In regard to the evidence adduced to prove that the deceased had a gold chain which was the chain MO-1 CRL.APPEAL No.2296 of 2006 -4- which was recovered on the strength of the alleged statement considered admissible under Section 27 of the Indian Evidence Act by the trial Court it is contended as follows: PW1 is an aged man. It is difficult to believe that he could identify MO-1 as the necklace worn by his sister. Pw3, a neighbor of the deceased and a lady witness who has also purported to identify the ornament. It is contended by the learned counsel for the appellant Sri.V.K.Sidhik, that her evidence cannot be relied on as what she has said is not that MO-1 was the necklace worn by the deceased, but, she has said that it was like the ornament which was worn by the deceased. Furthermore, he would point out the following contradiction: 5. According to Pw1 and Pw5, the niece of the deceased who allegedly accompanied the deceased when she purchased the gold ornament, the purchase was made one year prior to the death and about one year ago respectively. On the other hand, Pw3 would state that she has seen Elamma wearing it and she showed it to her at the time of purchase and that she has said that she did not remember when. Then she said that it was two to three months before the death. The evidence of PW5, the niece of the deceased cannot be CRL.APPEAL No.2296 of 2006 -5- accepted for the following reasons it is contended. PW5 has stated that she has not touched MO-1 ornament with her hands. It is contended that the deceased was an elderly woman. She was deaf and not in a physically good condition. If actually PW5 had accompanied the deceased, she would have certainly played an active role having regard to the fact that she was a woman and of a younger age and she would have examined the gold ornament by taking it into her hands. It is contended that this would have been the normal behavior expected of a woman of her age if she had actually accompanied the deceased to purchase the ornament. It is also contended that when it was purchased it also had a golden cross. It is pointed out that the gold chain (MO-1) recovered pursuant to the alleged statement made by the appellant did not have a golden cross. The cross is stated as having the dimension of 3 cm x 2 cm and is of gold colour. It is recovered on 20.8.2003 at the time when the scene mahazar was prepared, underneath two mats in the house of the deceased. It is pointed out that Pw1 has in his deposition stated that he saw the appellant in the police station on 18.8.2003 though the arrest as such is recorded only on 26.8.2003. The appellant was seen by Pw1 two to three days from 18.8.2003 also, it is pointed out. In CRL.APPEAL No.2296 of 2006 -6- regard to the recovery of the cross under the scene mahazar on 20.8.2003 it is contended that the evidence of Pw1 and Pw2 is that there is welding in the chain. It is contended that the necklace which is produced as MO-1 as having belonged to the deceased and which is recovered on the statement of the appellant under Section 27 of the Evidence Act which is apparently the very sheet-anchor of the prosecution case cannot be the ornament which was actually owned and worn by deceased Elamma. It is pointed out that the cross alone was allegedly recovered under the two mats. There is a possibility of the actual chain which was worn by Elamma having been given to somebody else. It is contended that the dimension of the cross would show that it was a big cross and the prosecution case is improbable. It is further pointed out that MO-1 is stated to be 'U' shape and there are two hooks. It is further contended that the case of the prosecution that the appellant had pledged MO-5 ring which belonged to Pw6 and the same was redeemed upon pledging MO-1 gold necklace cannot be believed. It is submitted that the appellant was deriving his livelihood as a coconut climber and it is incredible to suggest that he could not raise Rs.300/- for redeeming the gold ring which is alleged to have been pawned with Pw8. (It has come out in CRL.APPEAL No.2296 of 2006 -7- evidence that it was redeemed upon receipt of Rs.300/-). It is further contended that MO-2, two gold ear rings alleged to have been worn by the deceased Elamma would have been stolen if the prosecution case against the appellant is to be believed. Learned counsel for the appellant further submits that the weight of MO-1 as weighed by PW9 gold smith is 7.900 grams. But, it is pointed out that in the records of PW8 it is shown only as 7.750 grams. It is contended that the explanation of Pw8 by saying that usually it is shown in that fashion cannot be believed as in regard to MO-5 ring the weight was found to be 2.16 grams and it is the very same weight which is entered in his records. All these, he would submit is an attempt to point out that the recovery of the chain cannot be believed and connected with the chain allegedly worn by the deceased. Learned counsel for the appellant would submit that MO-2 ear rings was having a weight of 4 grams. (Learned counsel no doubt does not dispute the fact that there is no evidence to show the weight of the ornament). He would further submit that it is difficult to believe that the appellant would commit murder of Elamma for the purpose of committing theft. He would submit that actually Pw1 who is the brother of the deceased and Pw5 who is the niece of the deceased were cornered into giving CRL.APPEAL No.2296 of 2006 -8- deposition as given as they would have been threatened by the police to the effect that they would be dealt with otherwise. 6. He would further submit that without prejudice to the contention that the appellant is innocent and is entitled to acquittal, he would contend as follows: There may have been scuffle and the deceased may have fallen to the bed and suffered injury leading to her death. It is contended that the medical evidence supports this version. It is further contended that Section 449 of IPC is inapplicable. It is submitted that there are wooden logs found in the premises where Elamma resided as is evident from the scene mahzar and the wooden log with which the injury may have been caused by using the wooden logs found inside the house that is the appellant would not have gone at any rate with the wooden log and there is no premeditation. There is only one injury and conviction under Section 302 IPC was not warranted at any rate. Learned Public Prosecutor supported the judgment. 7. PW1 is the brother of the deceased. He has stated, inter alia, as follows: The deceased was not healthy and was undergoing treatment. CRL.APPEAL No.2296 of 2006 -9- She was residing alone. He saw her last on 11.8.2003 in the evening at 6 PM. (He deposes that the version given to the police that he saw her last on 15.8.2003, was a mistake). He would say that he had corrected it. The deceased used to wear a gold chain. That was missing. There is a cross on the gold chain. He identified MO1 gold chain. He deposed that another sister and a niece purchased MO1 one year back and gave it to the deceased. He was shown the gold chain in the police station. At that time, the accused was present. He has seen the accused near the house of the deceased earlier. In Cross-exmination he states that the body was decomposed. He denies the suggestion that on account of the foul smell, he did not go in to see the deceased. He denies having given statement about the death having taken place between 15.8.2003 and 18.8.2003. He has not touched the dead body. He went along for the post mortem. He noticed the ear ring on the dead body. Two-three days after, the cross was found CRL.APPEAL No.2296 of 2006 -10- under the mate. It is a small cross. He saw it being taken. He is not able to say how long or wide the cross is. He is unable to recollect the date on which the cross was recovered. When the body was taken for post mortem, he did not see the cross. On that day, in the afternoon, the cross was found. There was no distinctive marks in the cross worn by the deceased. In answer to the question whether the cross was definitely that which was worn by the deceased, he says, he cannot say. Then he says that if he sees the cross, he can say. The sister who purchased the gold chain told that it weighed one sovereign and that the gold chain was of “Dhruvam” size. These were mentioned one year before the death. He states that in the gold chain, there was one welding done. He says that he has not mentioned it to the Police Officer. He says that it is he who got the broken gold chain welded. This also, he has not mentioned to the Police Officer. He denies the suggestion that MO1 was not that worn by the deceased. He saw CRL.APPEAL No.2296 of 2006 -11- the accused on the 18th and on 2-3 days thereafter. It must have been on the 20th or 21st. The accused sets up a case that the deceased did not have any gold chain, which is denied by PW1. He has not gone to purchase the gold chain. 8. PW2 is a neighbour. He has deposed that he was present at the time of the inquest and is a signatory. 9. PW3 is a neighbour of the deceased. She has stated that she saw the deceased last on 13.8.2003. She came back after visiting her mother's house on 17.8.2003. The deceased used to go for domestic work. She was short of hearing. The deceased used to wear gold chain and ear ring. She saw the deceased from a distance and she did not notice whether the gold chain was there on the dead body. She states that she is able to identify the gold chain and ear ring worn by the deceased. She was shown MO1 gold chain and she states that the deceased used to wear gold chain like MO1. She was shown MO2 ear ring and she states that the CRL.APPEAL No.2296 of 2006 -12- deceased was worn ear ring like MO2. She has seen gold chain, like MO1 worn by Bindu. She says that the accused is a person from that area. She has not gone inside the house of the deceased. She would say that the deceased had shown the gold chain to her 2-3 months prior to her death. She says that the gold chain weighed a sovereign from what the deceased told her. 10. PW4 is a resident of the colony. He is a witness to the recovery of MO3 wooden log. The recovery was made after one week of the discovery of the death. He has witnessed the accused being brought in a police jeep and the accused taking out MO3 which was bloodstained. He says that some black and white gray hair were found in MO3. He has signed in the mahazar, marked as Ext.P3. He identified MO3 as the wooden log recovered through the accused. 11. PW5 is the niece of the deceased. She has testified that she had accompanied the deceased with another aunt of her to CRL.APPEAL No.2296 of 2006 -13- Shanker Jewellery at Alwaye to purchase MO1 gold chain. She says that the deceased used to wear gold chain and ear ring regularly. The deceased had ear ring earlier. The gold chain was purchased about a year prior to the death. Deceased did not have the capacity to go and buy the ornament by herself. She was short of hearing and her speech was incoherent and she had a limp. Along with the chain, a locket was also purchased. The speech of the deceased could be understood. The cross is the locket. The chain was about a sovereign and was of “Dhruvam” model. She is able to identify the ornaments worn by her aunt. She identifies the cross as the cross worn by the deceased. She also identifies MO1 as the chain worn by the deceased. She also identifies the ear rings. She was called to the police station and she identified the gold chain in the police station. At that time, the accused was present. They have purchased 22 carat gold which is the pure gold. She has seen the gold chain being worn by the deceased and CRL.APPEAL No.2296 of 2006 -14- not held in her hands. So also, she speaks about the cross. The chain was welded. It was done by the uncle. The fact of breaking of the gold chain and the welding has been informed by the deceased herself. There is no particular mark in the cross. There are many crosses like the cross. She came to know that the cross was obtained from the house of the deceased as told by PW1. She knows about the other fashion of the gold chain. Deceased liked the gold chain having “Dhruvam” fashion. She is not able to say whether the gold chain was there on the body of the deceased. In Re-examination, she would say that at the time of purchase of the gold chain and cross, she had taken them and examined them. 12. PW6 is a resident of the colony in question. She says that she knows the accused. She says that the accused used to come to her house. He used to come for plucking coconuts. She states that the accused borrowed her gold ring for pledging it, when he was in need of money. The ring was redeemed and given CRL.APPEAL No.2296 of 2006 -15- back. She deposes that she had given the ring 3-4 times for pledging. The ring was given back before the death of Elamma. She is not able to remember exactly when it was so done. She has given statement before the Magistrate and admits her signature in the statement. The gold ring is marked as MO5. She says that the accused is a labourer and it is from the income from his vocation that the accused has redeemed the gold ring and given it to her. 13. PW7 is the brother-in-law of the deceased. He is a signatory to Ext.P5 scene mahazar. MO6 is the mat. MO7 is another mat. He has stated about the search for the gold chain and it was not recovered. He identified MO1 as the gold chain belonging to the deceased and he speaks about the recovery of MO1 chain and subscribing to Ext.P6 seizure mahazar as a witness. 14. PW8 is a money lender. He is doing the business of giving loan on the strength of the pledging of gold ornaments. He CRL.APPEAL No.2296 of 2006 -16- states that the gold chain in question was pledged with him on 14.8.2003 and the pledged chain weighed 7 ¾ grams. The accused was given a loan of Rs.2,250/=. He proves the entry in Ext.P7 ledger. He identified the accused as the person who brought the chain for pledging. He states that the accused has come to his Concern earlier also for pledging. He states that the accused gave a gold ring for pledging earlier. He pledged the ring on 30.7.2003. The ring weighed 1.2 gram. The accused was given loan of Rs.300/= on that occasion. He would say that the ring was redeemed on 14.8.2003. The accused came at about 11 AM for redeeming the ring. When the chain was pledged, a loan of Rs.2,250/= was given after adjusting Rs.300/= with interest due under the pledging of the ring. He has spoken about the paper work done by the accused for redeeming the gold ring. He has spoken about the paper work done in connection with the pledging of the gold chain and the signature of the accused person being CRL.APPEAL No.2296 of 2006 -17- appended. He identifies the MO1 chain. There was a gap in the hook of the chain and he had asked about it to the accused and that is how he identifies MO1. He also identified MO5 gold ring as the ring which was redeemed by the accused. He also says that MO5 ring had been pledged two or three times earlier with him. He would say that in Ext.P10 relating to the pledging of the chain, he had begun to write as 12.8.03, but it is corrected as 14.8.03. It is only a mistake, he would say. He admits that there was over- writing. He would say that the mistakes have been corrected. He also admits that in Ext.P9 which related to the pledging of the gold ring, “00” was corrected as “07”. He denies the suggestion of difference between the signatures of the accused and asserts that the signatures are that of the accused. He denies the suggestion that the hook was straightened by him and the Police Officers. He states that the chain which was pledged had a weight of 7 ¾ grams. He is not able to remember whether the chain which was CRL.APPEAL No.2296 of 2006 -18- given to the police had the weight of 7.900 grams. He says that he had weighed the pledged chain and in the record it was shown as 7 ¾ grams. He says that because it is a pledged chain, the quantity is shown at a reduced basis. The police came and weighed the chain. He denies the suggestion that the mahazar was signed in the police station. He denies the suggestion that the accused has never pledged ornaments in his shop. In the Re-examination, PW8 would say that in respect of the pledge of the gold chain, the date 22.9.03 was written by a mistake in regard to this transaction. 15. PW9 is a goldsmith. He would say that he was asked by the Circle Inspector of Police to go and he accordingly went with the weighing balance and touchstone and the accused was also present in the police station. They went to the four cent colony. He would then say that they went to among other places, the shop where he weighed the gold chain and it weighed about 7.900 grams. It was found to be of about twenty carat gold. He CRL.APPEAL No.2296 of 2006 -19- identified MO1 as the chain which he had weighed. He also weighed the gold ring brought from the house of one Pathmini to whose house they went as per direction given by the accused. He speaks about the weighing the gold ring and otherwise checked the ring for the gold content. There will be many chains like MO1. There was a welding in MO1 chain. He would say that in all the joints, there are welding. 16. PW10 is the Doctor who conducted the post mortem. He noticed the following anti-mortem injuries: “Contusion of scalp over an area 8 x 7 cm. On the right frontoparietal region (seen on dissection). The orbital part of the frontal bone showed comminuted fraction 5 x 4 cm with