IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 CRL.A.No. 191 of 2007() ----------------------- SC.94/2006 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CP.148/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S): APPELLANT. ------------------------ JAISON, S/O.CHEERAMBAN PORINCHU, THRIKKUR. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.S. HRITHWIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2011, ALONG WITH CRA NO. 2723 OF 2009 THE COURT ON 18/10/2011 DELIVERED THE FOLLOWING: APPENDIX CRL. M.P. NO. 1135 OF 2007 IN CRL. A. NO. 191 OF 2007 DISMISSED. Sd/- V. Ramkumar, Judge Sd/- P.Q. Barkath Ali, Judge /true copy/ P.S. to Judge V. RAMKUMAR & P.Q.Barkath Ali JJ. ................................................ Crl.Appeal Nos.191 of 2007 & 2723 of 2009 ............................................ Dated this 18th day of October, 2011. INNER TITLES Sl.No. Inner titles Paragraph Nos. 1 Prosecution case 2 - A to H 2 The trial 4 to 8 3 This Appeal 9 4 The point for determination 10 5 Prosecution witnesses 11-A to BG 6 Arguments of A1 12 7 Arguments of A2 13 8 Judicial Evaluation 14 to 17 a) Chronological narration of events culminating in the charge sheet 14 - 6-2-2005 to 16-12-2005 b) Summing up a few proved circumstances 15 (A to W) c) Our conclusion Paragraphs 16 & 17 Crl. Appeal Nos.191 of 2007 & 2723 of 2009 2 V. RAMKUMAR & P.Q.Barkath Ali JJ. ................................................ Crl.Appeal Nos.191 of 2007 & 2723 of 2009 ............................................ Dated this 18th day of October, 2011. Judgment V.Ramkumar,J. Accused 1 and 2 in S.C. No.94 of 2006 on the file of the III Addl. Sessions Court (Adhoc) Fast Track Court No.I, Thrissur are the appellants in these appeals. They challenge the conviction entered and the sentence passed against them for offences punishable under sections 302, 394 and 435 IPC. PROSECUTION CASE 2. The case of the prosecution can be summarized as follows:- A) On or about 4-6-2005, 20-6-2005 and 5-8-2005 at places called Amballur and Thalur the first accused (Jaison) cheated PW8 (Biju Paul), PW11 (Cijo George), PW20 (Joju) and PW18 (Francis) by falsely pretending himself to be Biju, Babu and Thomas respectively and thereby fraudulently and dishonestly induced the above persons to Crl. Appeal Nos.191 of 2007 & 2723 of 2009 3 deliver election identity card, photographs, copy of passport, money, ration card, tax receipt, blank cheque leaves etc. causing wrongful loss to the aforesaid persons and their properties and the first accused thereby committed an offence punishable under section 419 IPC. B) On 28-8-2005 at or about 7.30 p.m. at Manalypadam accused 1 to 3 (Jaison, Sajayan and Robin) along with fourth accused (Joy – PW53) entered into a criminal conspiracy by agreeing to do an illegal act namely, to commit robbery of cars by asking the persons including P.W.1 (who had given advertisement in the newspaper for sale of their cars) to sell their cars to accused 1 to 3 and Joy aforesaid and thereby accused 1 to 3 and the aforesaid Joy committed an offence punishable under section 120B IPC. C) On 3-9-2005 between 5.30 a.m. and 6.30 a.m. accused 1 and 2, after inducing Tom Joseph, S/o.PWs.1 and 32 to come to Manaly from Peramangalam in his Maruti car bearing registration No. KL-8B- 5186, the first and second accused joined Tome Joseph by second accused occupying the driver's seat and the first and second accused abducted the said Tom Joseph in order that he might be murdered and accused 1 and 2 thereby committed an offence punishable under section 364 IPC. D) When the Maruti car reached the road passing along the landed property of Panagodan Mathew at a place called Pallam in Kallur desom of Kallur Village within the limits of Pudukad Police Station, accused 1 and 2 on 3-9-2005 at about 6.30 a.m., in furtherance of Crl. Appeal Nos.191 of 2007 & 2723 of 2009 4 their common intention to commit murder of Tom Joseph intentionally and knowingly caused the death of the aforesaid Tom Joseph by the first accused inflicting a head injury on the said Tom Joseph with MO38 wooden stick and the second accused with the help of the first accused forcibly administering a poison called “potassium cyanide” to Tom Joseph and the first accused smothering Tom Joseph with MO37 dhothi and accused 1 and 2 thereby committed an offence punishable under section 302 read with section 34 IPC. E) During the course of the same transaction on the same date, time and place accused 1 and 2 committed robbery of the properties of deceased Tom Joseph i.e., MO7 gold chain, MO3 wrist watch, MO4 mobile phone, MO2 Maruthi car, MO8 election identity card, MO9 a portion of driving licence and MO10 receipt for payment of course fee by the deceased. Accused 1 and 2 have thereby committed an offence punishable under section 394 IPC. F) After committing murder of Tom Joseph, accused 1 and 2 caused disappearance of the dead body with a view to screen them from punishment by taking the body to Kazhanipadam in Malampuzha Village and abandoned the body in a canal situated near the estate of one Ramakrishnan. After 3.30 p.m. on 3-9-2005 accused 1 and 2 took the Maruthi car bearing registration No.KL-8B 5186 to a place in Palakkad District, some distance away from Amrutha Distillery. In order to cause disappearance of the evidence of the offence, accused 1 & 2 removed the number plates of the Maruthi car and applied white paint in the space behind the number plates and accused 1 and 2 Crl. Appeal Nos.191 of 2007 & 2723 of 2009 5 thereby committed an offence punishable under section 201 IPC. G) During the course of the same transaction and in furtherance of their common intention, on 6-09-2005 after 3.30 a.m. at Attappallam in Varrappara Village, with a view to cause disappearance of the evidence of the offence of robbery, accused Nos. 1 and 2 set ablaze to the said Maruti car after pouring kerosene and accused Nos. 1 and 2 have thereby committed an offence punishable under Sec. 435 read with Sec. 34 I.P.C. H) The fourth accused (Joy – PW53) who was a member of the criminal conspiracy had assisted accused 1 to 3 in executing their ploy. Accused No.5 (Victor Raj – PW54) had also assisted accused 1 and 2 by purchasing white paint for the purpose of defacing the number plate of the Maruthi car and had procured 5 litres petrol for the purpose of setting ablaze the Maruthi car and had provided clothes to the first accused to change his bloodstained clothes. The accused (A1 to A5) have thereby committed offences punishable under sections 120B, 364, 302, 394, 419, 201, 435 and 212 read with section 34 IPC. 3. There were altogether five accused persons in the police charge. Considering the relatively lesser involvement of accused 4 and 5 who were privies to the offences committed by the rest of the accused persons, the committal court allowed the request of the prosecution to treat accused 4 and 5 as approvers. Accordingly, they were given conditional pardon and were made Crl. Appeal Nos.191 of 2007 & 2723 of 2009 6 prosecution witnesses and they were examined as PWs.53 and 54. THE TRIAL 4. Accused 1 to 3 faced trial before the court below. On accused 1 to 3 pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 61 witnesses as PWs.1 to 61 and got marked 97 documents as Exts.P1 to P97 and 47 material objects as MOs.1 to 47 (a). 5. After the close of the prosecution evidence, accused 1 to 3 were questioned under section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The first accused made a further statement as follows:- He is incapable of killing anybody. He has absolutely nothing to do with the murder of Tom Joseph. He has not murdered the said Tom Joseph. He has not been to Gujarath as alleged by the prosecution. He was taken into custody by the police on 6-9-2005. Crl. Appeal Nos.191 of 2007 & 2723 of 2009 7 The police were fabricating false evidence against him. He was falsely implicated in this case. He is totally innocent. 6. The second accused stated as follows:- He has not committed any offence. He had no acquaintance with deceased Tom Joseph. Mobile phone No.9847016222 was not taken by him. He has never used that number. The first accused had taken two or three signed blank sheets, copy of identity card and two photographs from him promising him to procure K.S.F.E. chity in his name. He has absolutely no connection with the murder. He is innocent. 7. Since this was not a case of “no evidence” for the prosecution within the meaning of section 232 Cr.P.C. the trial court did not record an order of acquittal at that stage. Accused 1 to 3 were, therefore, called upon to enter on their defence and to adduce any evidence which they might have in support thereof. Except marking Exts.D1 to D5, the defence did not examine any witness. 8. The learned Sessions Judge after trial as per judgment dated 30-11-2006 acquitted accused No.3 (Robin) of all the offences charged against him but convicted accused 1 and 2 who Crl. Appeal Nos.191 of 2007 & 2723 of 2009 8 were found guilty of offences punishable under sections 302, 394 and 435 IPC. The conspiracy to commit robbery of the car and the abduction of the deceased by accused 1 and 2 and the charge of cheating under section 419 IPC were however found against. For their conviction under section 302 IPC, each of accused 1 and 2 was sentenced to imprisonment for life and to pay a fine of Rs.2,0000/- and on default to pay the fine, to undergo simple imprisonment for six months. For their conviction under section 394 IPC, each of the appellants was sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1,000/- and on default to pay the fine, to undergo simple imprisonment for six months. For their conviction under section 435 IPC, each of the appellants was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1,000/- and on default to pay the fine, to undergo simple imprisonment for six months. The substantive sentences were directed to run concurrently. It is the said judgment which is assailed in these appeals by accused 1 and 2. Against the acquittal of the appellants for the offences punishable under sections 419, 120B and 364 IPC, the State has not preferred any appeal. Crl. Appeal Nos.191 of 2007 & 2723 of 2009 9 THIS APPEAL 9. We heard the learned counsel appearing for the appellants and Advocate Sri Hrithwik, the learned Public Prosecutor. 10. The only point, which arises for consideration in these appeals, is as to whether the conviction entered and the sentence passed against the appellants for offences punishable under sections 302, 394 and 435 IPC are sustainable or not. 11. The Point:- PROSECUTION WITNESSES A. PWs.1 and 32 (Joseph and Kochuthressia) are the parents of deceased Tom Joseph. Their house is at Chittilappilly in Thrissur District. P.W.1 who was a gold appraiser by calling was having a shop at Ernakulam where he was making gold ornaments. He was staying at Ernakulam and used to go to Chittilappilly during the week ends. Ext.P1 is the F.I. Statement given by PW1 to the police. Exts.P2(a) and P3(a) are the newspaper advertisements given by PW1 in Malayala Manorama daily dated 28-8-2005 and 30-8-2005 respectively. Ext.P2 (a) advertisement was for the sale of the Maruti Car (MO2) belonging to P.W.1. Ext.P3 (a) advertisement was one inviting a business partner in the shop of P.W.1 at Ernakulam. MO1 is the steel ring and MO3 is the wrist watch of Tom Joseph. MO2 is the charred Maruthi car belonging to PW1. MO4 is the Nokia Mobile Phone of deceased Tom Joseph. MOs.5 and 6 are his chappals. MO7 is the gold chain which belonged to Tom Joseph. MO8 is Crl. Appeal Nos.191 of 2007 & 2723 of 2009 10 the election identity card. MO9 is a portion of the driving licence and MO10 is a portion of the receipt for payment of course fee issued from the ITC to Tom Joseph. Exts.D1 and D1(a) are the case diary contradictions of PW1. B. PW2 (Krishnakumar) who is an auto-rickshaw driver residing at Manalur in Palakkad district had aided accused 1 and 2 for selling MO7 gold chain in the jewellery shop of PW3 by name Babu Jewellery at Palakkad on 3-9-2005. C. PWs.4 and 5 (Santhosh and Ananthan) are the witnesses to Ext.P4 seizure mahazar dated 28-9-2005 prepared by PW53 for recovery of MO7 gold chain from the said jewellery shop, pursuant to Ext.P59 confession statement given by the first accused. D. PW6 (Anandan) was a Room Boy in Surya Lodge at Palakkad. He had developed an acquaintance with the first accused, when the latter stayed in the said lodge three or four times. On 3-9-2005 at about 9.30 a.m. PW6 had seen accused 1 and 2 near Surya Lodge in a Maruthi car and the first accused had asked him to sell MO7 gold chain, since the first accused was hard pressed for money. According to PW6, as he had no acquaintance with anybody in that field, he could not help the first accused in selling MO7. E. PW7 (Abdul Gafoor) was the Managing Partner of Anand Lodge, Palakkad. He proved Ext.P5 register of guests to show that on 5-9-2005 at 10 p.m. the first accused had hired a room in that lodge and Crl. Appeal Nos.191 of 2007 & 2723 of 2009 11 subsequently on 29-9-2005 the police had brought the first accused to his lodge. F. PW8 (Biju Paul) has deposed that he was cheated by the first accused on 20-6-2005 after masquerading himself as one C.J. Babu. He had lodged a complaint before the police on 15-11-2005. He proved Ext.P6 election identity card and Ext.P7 form with photo. G. PW9 (Sanal) was a former colleague of the second accused. He deposed that the second accused had approached him for cyanide stating that he needed the same for killing dogs and he obliged the second accused by buying 250 gms. of potassium cyanide from the shop of PW10 and handed over the same to the second accused. H. PW10 (Francis) runs a shop by name Akkara Vessels at Ollur near Thrissur. Besides the above shop, he has a jewellery shop and tools shop. He claims to be keeping potassium cyanide for the purpose of colouring jewellery. He sold 250 grms. of potassium cyanide to PW9. I. PW 11 (Cijo George) is a person who was allegedly cheated by the first accused. He deposed that in response to an advertisement in the newspaper for the post of a Manager, he contacted the first accused and gave deposit amount and Ext.P8 identity card and MO11 photograph to the first accused. On coming to know that the first accused cheated him, he preferred Ext.P9 complaint on 12-9-2005. J. PW12 (Sampathkumar) is residing at Attapallam in Palakkad. He had Crl. Appeal Nos.191 of 2007 & 2723 of 2009 12 acquaintance with the first accused. He used to visit the house of PW54 whose father was a friend of PW12. On 3-9-2005 after 7 p.m. accused 1 and 2 had reached the court yard of his house in MO2 white Maruthi car and left the car in his court yard and subsequently took away the car on the next day while he was not in the house. K. PW13 (Soundarajan) is the younger brother of PW12. He deposed that on 5-9-2005 at about 8 p.m. accused 1 and 2 took away MO2 Maruthi car from his court yard. L. PW14 (Sundaran) has a hardware shop at Attapallam Junction. He deposed that PW54 (who was originally the fifth accused) purchased paint from his shop at about 4.30 p.m. on 3-9-2005. M. PW15 (Lakshmi) is running a stationary shop at Attapallam. She deposed that at about 7 p.m. on 5-9-2005 PW54 along with the second accused reached her shop and purchased a jerry can having a capacity of five litres. N. PW16 (Selvam) who resides at Attapallam deposed that PW54 along with the second accused came to his house at about 7.15 p.m. on 5-9-2005 and PW54 purchased five litres of petrol in a can brought by him. The explanation given by PW54 was that their car was stranded on the main road for want of petrol. O. PW17 (Jainalavudin) claims to be a scrap dealer at Koduvayur in Palakkad District. He deposed that he had prior acquaintance with the Crl. Appeal Nos.191 of 2007 & 2723 of 2009 13 second accused who contacted him through a mobile phone from a place near Palna Hospital at Palakkad on 3-9-2005 and asked him how much amount would a Maruthi car fetch, if sold as a scrap. The second accused demanded Rs.40,000/- and PW17 promised him that he would inform him later. P. PW18 (Francis) is yet another person who was allegedly cheated by the first accused. He deposed that in response to an advertisement in the newspaper for sale of prized chitties, he contacted the person who introduced himself as Baburaj and on 4-6-2005 he handed over some money and records to the first accused who was the person who had introduced himself as Baburaj. Ext.P10 was the identity proof of the son of PW18 and MO12 is the photo of his son. Q. PW19 (Raju) runs an Industrial Training Centre (I.T.C.) by name PMS College of Engineering at Irinjalakuda. He proved Ext.P11(a) advertisement given by him in Ext.P11 Malayala Manorama Daily dated 6-2-2005. R. PW20 (Joju) was also allegedly cheated by the first accused. He deposed that when he saw the advertisement in the newspaper offering loan, he contacted the person in the phone number shown in the advertisement. The person at the other end who introduced himself as Biju asked PW20 to come TO Thalur Junction with money and document and when PW20 reached there, it was the first accused who came there and received the document and money from him. Ext.P12 is the copy of the first page of the passport of PW20 and MO13 is his photographs. Crl. Appeal Nos.191 of 2007 & 2723 of 2009 14 S. PW21 (Mojo Francis) was allegedly induced by the third accused to insert an advertisement in the Mathrubhumi Malayalam daily for the sale of prized chity and on 9-5-2005 he had put such an advertisement. T. PW22 (Dr.R.Sreekumar) is the Assistant Director Biology at the Forensic Science Laboratory, Thiruvananthapuram. He had examined the control sample hair of the first accused. He proved Ext.P13 report to the effect that control sample of hair from the deceased matched with the hair of the first accused. U. PW23 (Annamma John) was the Senor Instructor (Forensic Science) in the Kerala Police Academy at Thrissur. She was also holding charge of Scientific Assistant in the Mobile Laboratory DCRG, Thrissur. On the request of the Investigating Officer, she had reached the place where the dead body was lying and examined the dead body and its surroundings for scientific evidence. During that exercise she collected the control sample hair from the left hand of the deceased and some soil from the vicinity. She had also examined MO2 car lying at Attapallam and had collected paint, fire remnants, number plate of the car and charred remnants of two books from the car. MO14 is the packet containing the paint. MO15 is the packet containing the charred number plate of the car and MO16 and MO17 are the packets containing charred remnants of the books. MO18 and MO19 are the packets containing the soil collected by PW23. V. PW24 (Reghunath) was working as Asst. Motor Vehicle Inspector in Crl. Appeal Nos.191 of 2007 & 2723 of 2009 15 the office of the R.T.O., Palakkad. On 8-9-2005 at 5 p.m. he inspected MO2 Maruthi car which was seen completely burnt without any registration number and he issued Ext.P14 inspection report in which he had mentioned the chassis number and engine number of the said car. W. PW25 (Michael) who was working as Joint R.T.O., Thripunithura had issued Ext.P15 certificate on 11-11-2005 to the effect that the Maruthi car with registration No.KL-8B 5186 is of 1992 modeland that it stands in the name of PW1 with effect form 5-4-2004. The chassis number and the engine number noted by him are the same as those noted by PW24 after inspecting the car. X. PW26 (Eldho) was the Junior R.T.O., Guruvayoor. On 14-10-2005 he had issued Ext.P16 certificate, as per which the Maruthi car bearing registration No.KL-8B 5186 was 1992 model and its Chassis No.was SB 308 IN 509155 and Engineer No.was F8 B IN 751056. Y. PW27 (Lijo Jos) was working as Councilor in the office of Idea Mobile Company at Thrissur. On the request of the police he had handed over Ext.P17 call details of Idea mobile phone nos.9847444554 and 9847016222 as evidenced by Exts.P17 and P18 - call details furnished on 23.11.2005. According to this witness, the SIM-card bearing the number 9847444554 belonged to one Ravi Kumar (PW 42) of Thrikkur and that bearing No.9847016222 belonged to Sajayan (A2). Z. PW28 (V.Santhosh) was the Sub Inspector of Police, Kasba Police Station at Palakkad. Consequent on information received by him at 8.15 Crl. Appeal Nos.191 of 2007 & 2723 of 2009 16 p.m. on 5.9.2005 to the effect that a dead body was found in the channel running along the boundary of the property of one Ramakrishnan, the owner of 'Valayar Motels' by the side of the road leading to Malampuzha from Chadayankalayi, he and his party reached the above spot where the dead body of Tom Joseph, aged 20 years, was fond lying. After returning to the police station he registered a case as Crime No.316 of 2005 under the caption “unnatural death” under section 174 of Cr.P.C. On the next day he held inquest over the dead body of the deceased as evidenced by Ext.P20 inquest report, under which he seized M.O.20 pants, M.O.21 shirts, M.O.22 banian. He also took into custody M.Os.18 and 19 sand samples and hair collected by PW23, after describing the same in Ext.P20 inquest report. He sent the dead body to the Government Medical College, Thrissur, for postmortem examination. On 7.9.2005, PW50 (Autopsy Surgeon) produced the hairs taken from the deceased at the time of autopsy and the same was taken into custody as per Ext.P21 mahazar. PW28 filed Ext.P22 report for adding Section 302 IPC, since the investigation conducted revealed that the deceased was murdered. He filed Ext.P23 report for rectifying the mistake which had crept in Ext.P20 inquest report. Exts.P24 and 25 are the property lists prepared by PW28 while producing the M.Os in court. AA.PW29 (Krishnaswamy) who is running a textile shop at Attappallam deposed that, he had witnessed the police taking into custody M.O.2 charred Maruti car from Attappallam at 11 a.m. on 6.9.2005 and he is an attestor to Ext.P26 mahazar prepared in that connection. AB. PW30 (Chandran) is a photographer who on the request of Ext.P28 had Crl. Appeal Nos.191 of 2007 & 2723 of 2009 17 taken the photographs of the deceased and the place where the dead body was lying on 6.9.2005. M.O.23 packet containing 17 photographs and the negatives and M.O.24 packet containing four photographs of the charred car and their negatives were marked through him. He handed over