IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 CRL.A.No. 376 of 2005() ----------------------- SC.59/1996 of SESSIONS COURT, PATHANAMTHITTA CP.5/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... APPELLANT(S)/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. RESPONDENT(S)/ACCUSED: ---------------------------------------- RETNAKUMAR @ PODIMON, S/O.KARUNAKARAN NAIR, CHARIVUKALAYIL VEEDU, IDAKKULAM MURI, VADASSERIKKARA VILLAGE. ADV. SRI.V.SETHUNATH FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 376 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2009. JUDGMENT Bhavadasan, J, The State calls in question the acquittal of the accused for the offence punishable under Section 302 of Indian Penal Code in Sessions Case No.59 of 1996 before the Sessions Court, Pathanamthitta. The facts are as follows: Octogenarian Govinda Panicker and septuagenarian Karthyayani Amma had four sons and two daughters. The eldest son was residing a short distance away from the couple. The other sons were serving outside on employment. The two daughters had been married away and they were in their matrimonial homes. On 2.9.1995 Govinda Panicker, as usual, left the house to the post office leaving his wife alone at home. When he returned at about 12.30 in the noon he found his wife missing. Frantic search was made by him. Ultimately he went near the well and he found the body of his wife floating therein. His wails brought people to the site. A neighbour of the couple, namely, P.W.1, furnished Ext.P1 First Information Statement before P.W.12, Head Constable of Ranni Police Station. He recorded Crl.Appeal.376/2005. 2 the same. Based on Ext.P1 First Information Statement, P.W.13, the Assistant Sub Inspector of Police attached to the same station registered Crime No.295 of 1995 under the caption unnatural death under Section 174 of Criminal Procedure Code as per Ext.P1 (a) First Information Statement. In the meanwhile the body was retrieved from the well. On retrieval it was found that the gold chain and the bracelet always worn by Karthyayani Amma were missing. There was a dark patch around her neck also. P.W.13 conducted inquest over the body and prepared Ext.P2 report. He found that there were injuries on the body of Karthyayani Amma and there was bleeding from her nose. There were contusions around her neck. He seized M.Os. 4 and 5 found on the body. The body was sent for postmortem. P.W.9, the Forensic Surgeon, conducted autopsy and furnished Ext.P7 postmortem certificate. The said certificate discloses that Karthyayani Amma died of strangulation and not due to drowning. This necessitated incorporation of Section 302 IPC in the FIR and that was done. Investigation was thereafter taken over by P.W.14, the Circle Inspector of Police. He visited the place of occurrence and prepared Ext.P5 scene mahazar. He had the service of Forensic Experts and they inspected the place. From inside the house he recovered the stub of a beedi and few Crl.Appeal.376/2005. 3 hairs. That was handed over to the Forensic expert. They are M.Os. 8 and 9 respectively. He also recovered M.O.10 “thorthu mundu”. In the veranda of the house, he found blood stains and he collected them also and that is M.O.11. He found that the ornaments of Karthyayani Amma had been robbed and therefore he filed a report in court incorporating Sections 449, 393 and 302 IPC. During investigation he came to know that the two ornaments found missing from the body of Karthyayani Amma was seen pledged in the jewellery shop owned by P.W.6. On the basis of the information received by him he arrested the accused. Based on Ext.P6(a) confession statement said to have been given by the accused, he recovered M.Os. 6 and 7 ornaments from the shop of P.W.6 as per Ext.P7 mahazar. He recorded the statements of witnesses, completed the investigation and laid charge before court. 2. Judicial First Class Magistrate, Ranny, before whom the final report was laid, took cognizance of the offence. On finding that the offence is one exclusively triable by a court of Sessions, JFCM, Ranny committed the case to Sessions Court, Pathanamthitta. 3. Sessions Court, Pathanamthitta on receipt of records issued summons to the accused. He entered appearance. After a preliminary Crl.Appeal.376/2005. 4 hearing charge was framed under Sections 449, 302 and 392 of IPC. To the charge, the accused pleaded not guilty and claimed to be tried. Prosecution therefore had examined P.Ws.1 to 14 and marked Exts.P1 to P13. M.Os. 1 to 13 were identified and marked. After closure of prosecution evidence the accused was questioned under Section 313 of Criminal Procedure Code. He denied all the incriminating circumstances brought out against him and maintained that he is innocent. Finding that the accused could not be acquitted, he was asked to enter on defence. He adduced no evidence. 4. On an appreciation of the evidence in the case, the court below came to the conclusion that the prosecution had miserably failed to establish the guilt of the accused beyond reasonable doubt and therefore acquitted him of the charges under Sections 449, 392 and 302 IPC. The said finding is assailed by the State in this appeal. 5. The question that arises for consideration is whether the court below was justified in acquitting the accused. 6. The facts fall within a narrow compass. That Karthyayani Amma is no more is a fact not in dispute. She was robbed and thereafter strangulated. The prosecution case is that it was the accused who had done the said act. The accused would deny the same. Crl.Appeal.376/2005. 5 7. Before the court below, the main item of evidence is the recovery of M.Os. 6 and 7 based on the confession statement namely Ext.P6(a) said to have been furnished by the accused. The lower court refused to accept the said evidence because of various reasons. Apart from the said item of evidence, there is not much evidence in the case. 8. Learned Public Prosecutor pointed out that the court below was not justified in ignoring the evidence relating to the recovery of M.Os. 6 and 7, which were the ornaments said to have been worn by Karthyayani Amma. According to the learned Public Prosecutor, there was no justification in the lower court coming to the conclusion that as there is no evidence to show that the deceased was wearing ornaments which were missing on the date of incident, the prosecution case is weak. Learned Public Prosecutor also stressed that the evidence is clear to the fact that it was on the basis of the confession statement given by the accused that M.Os. 6 and 7 ornaments were recovered from the shop of P.W.6. The doubts raised by the court below about the recovery are not justifiable. According to the learned Public Prosecutor, there is clear evidence to show that it was the accused who, with the intention of appropriating the gold ornaments worn by the deceased, had done the act. Crl.Appeal.376/2005. 6 9. Learned counsel appearing for the accused on the other hand pointed out that the court below was perfectly justified in ignoring the evidence based on recovery of M.Os. 6 and 7. Learned counsel drew attention of this court to the fact that the entry, namely Ext.P3(a) in Ext.P3 register is seen corrected in several places and cannot be relied on. There nothing to show that the entry related to the accused. There is nothing to show that it was the accused who had pledged the ornaments shown as per Ext.P3(a) in Excel Bankers. Learned counsel also submits that there was no question of recovering M.Os. 6 and 7 on the basis of the confession statement said to have been given by the accused for the simple reason that the investigating agency, much before the confession statement was given by the accused, was aware of the fact that the gold ornaments were in Excel Bankers. Learned counsel concluded by pointing out that there is no evidence whatsoever in the case on hand to connect the accused to the offence of murder and theft. 10. It is necessary to notice here that the prosecution builts its case on circumstantial evidence. In the case where the prosecution relies on circumstantial evidence, the parameters are well settled. The three tests usually mentioned are Crl.Appeal.376/2005. 7 (1) The circumstances from which the inference of guilt is sought to be drawn, must be cogently and fully established. (2) Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused. (3) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and no one else. There is a plethora of decisions on this aspect. It is unnecessary to refer to all of them. In the decision reported in Mula Devi v. State of Uttarakhand (AIR 2009 SC 655), it was 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 be proved beyond Crl.Appeal.376/2005. 8 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 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 f A.P. And Ors (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which the inference of guilt is sought to be drawn, must be cogently and fully established; Crl.Appeal.376/2005. 9 (2) those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that with 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. 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 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 Crl.Appeal.376/2005. 10 connected with the factum prbandum; (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 incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. In Hanumant Govind Nargundkar and Anr. v. State of Madhya Paradesh, (AIR 1952 SC 343), wherein it was observed thus: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, Crl.Appeal.376/2005. 11 there must be a chain of evidence so far complete as not to leave any reasonable ground from 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.” A reference may be made to a later decision in Sharad Birdhichand Sarda 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 : (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 Crl.Appeal.376/2005. 12 (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.” The main aspect to be considered is whether the prosecution has succeeded in establishing the acts alleged against the accused. It must be noticed here that the main item of evidence against the accused is the recovery of M.Os. 6 and 7, two ornaments said to have been worn by Karthyayani Amma, from Excel Bankers. There is no case for the prosecution that anybody had seen the accused going to the house of the deceased on the ill fated day. It is interesting to note that the accused played a major role in retrieving the body from the well and also in informing people in the locality about the unfortunate death of Karthyayani Amma. 11. It is true that the finding of the court below that since there is no evidence to show that on the ill fated day M.Os. 6 and 7 were worn by the deceased, the prosecution case should fail, cannot be accepted. The best person to give evidence in that regard would have been C.W.3, who is none other than the husband of the deceased. Unfortunately for the prosecution Crl.Appeal.376/2005. 13 C.W.3 died before the trial commenced. However, there is clear evidence given by the son and daughter of Karthyayani Amma to the effect that the deceased was not in the habit of removing M.Os. 6 and 7 and keeping it aside. Even assuming that they were not worn by the deceased on the ill fated day, the fact remains that they were found missing from the house of the deceased. Therefore, if it is found that the evidence of recovery is credit worthy and acceptable, the above infirmity will be of no help to the accused. 12. Now, we may come to the main item of evidence in the case. As already observed, the main evidence is the recovery of M.Os. 6 and 7 based on Ext.P6(a) confession statement said to have been given by the accused. P.W.6, the owner of Excel Bankers, P.W.8, the person who weighed the gold ornaments, P.W.10, a salesman in the shop of P.W.6 and P.W.14, the investigating officer furnished evidence in this regard. 13. Ext.P3 is the ledger concerned and Ext.P3(a) is the relevant entry. If as a matter of fact these entires are proved in accordance with law, then it goes a long way in establishing the guilt of the accused. It is true that going by Section 114 of the Indian Evidence Act, a person, who is found to be in possession of the stolen articles immediately after the theft, Crl.Appeal.376/2005. 14 will be deemed to have committed the theft. However, courts have extended the presumption to the extend that if stolen articles belonging to accused are found in the possession of a person soon after the death of the victim, it may be presumed that he is the murderer. (See the decisions reported in AIR 1978 SC 522, AIR 1989 SC 44, AIR 79 SC 1949, AIR 1981 SC 157 and AIR 1983 SC 446) 14. Thus if it is proved that it was the accused who had pledged M.Os. 6 and 7 with Excel Bankers, then it goes a long way in establishing the case of the prosecution. That portion of the confession statement admissible under Section 27 of the Evidence Act coupled with the presumption under Section 114 of the Indian Evidence Act would be sufficient to fasten liability on the accused. As already stated P.W.6 is the owner of Excel Bankers. 15. According to him, he knows the accused and that on 2.9.1995 he had pledged two gold ornaments in his concern. One was a gold chain and the other a gold bracelet. On 4.10.1995, according to him, the accused was brought by the police and the gold ornaments were taken into custody. He says that Ext.P3(a) in Ext.P3 ledger is a relevant entry. He had paid Rs.4000/- to the accused. He identified M.Os. 6 and 7 as the Crl.Appeal.376/2005. 15 ornaments pledged by the accused and the ones seized by the police. He also states that the accused along with his wife had come and pledged a gold ornament before. On 2.9.1995, according to him, the wife of the accused redeemed the gold ornaments pledged by her. 16. P.W.8 is the person, who had weighed the gold ornaments at the instance of the police. This witness would state that he had occasion to weigh M.Os. 6 and 7 in the shop of P.W.6. He also stated that he had signed the mahazar prepared by the police for that purpose. 17. P.W.10 is the employee in the shop of P.W.6. According to him, on the day on which the accused was brought by the police he was in the shop. They had come at about 3 p.m. on 4.10.1995. The police seized the gold chain and bracelet pledged by the accused. He would say that the accused had pledged them in the shop and the chain weighed about nine and a half grams and the bracelet seven grams. He identified M.Os. 6 and 7 ornaments seized by the police. He also stated that he had signed as a witness to Ext.P6 mahazar. He gave the other details regarding the pledge and also identified Ext.P3(a) as the entry made for the relevant purpose. 18. P.W.14 is the investigating officer, who had gone to seize the ornaments, namely M.Os. 6 and 7 from the shop of P.W.6 based on the Crl.Appeal.376/2005. 16 confession statement, namely Ext.P6(a), said to have been furnished by the accused. He speaks about the seizure of the ornaments and the ledger. It needs to be noticed that Ext.P6(a) confession statement said to have been given by the accused discloses both authorship of concealment and the factum of concealment. 19. It is the above items of evidence that are relied on by the learned Public Prosecutor to contend for the position that the act of the accused had been proved. On the other hand, learned counsel appearing for the accused would say that a close reading of the evidence of P.Ws. 6, 10 and 14 would clearly show that the police were aware that the ornaments were in the shop of P.W.6 much before the confession statement said to have been given by the accused. If that be so, according to learned counsel, it cannot be termed as a recovery based on the confession statement admissible under Section 27 of the Indian Evidence Act. 20. As rightly pointed out by the learned counsel for the accused, on a careful scrutiny of the evidence of P.Ws. 6, 10 and 14, it can be seen that the recovery cannot be termed as one under Section 27 of the Indian Evidence Act. Crl.Appeal.376/2005. 17 21. It has to be noticed that even according to prosecution Ext.P3(a) is the relevant entry. It is shown as Entry No.41263. It is significant to notice that Ext.P3(a) entry by itself does not show that the accused had anything to do with the entry. It is seen initially entered in the name of Raghu Kumar and two chains are shown pledged with Excel Bankers. In cross-examination P.W.6 had stated that there is an entry in the ledger to the effect that the article is not to be delivered without the permission of Ranny Police. He would say that that entry was made on 31.9.2005. He would say that that entry was made with his consent and knowledge. According to him one week prior to 31.9.1995 two Constables from Ranny police station had come to his shop and directed him not to release the articles without the permission of the police. It is significant to notice that this witness would say that when the articles are brought for pledging in his concern, the pawner has to fill up an application form giving