IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 CRL.A.No. 961 of 2007(A) ------------------------ SC.63/2006 of ADDL.SESSIONS COURT-II, PALAKKAD .................... APPELLANT: -------------- RATHEESH, S/O.K.G.MANI CONVICT NO.4345 CENTRAL JAIL, KANNUR BY ADV. T.K.SREEKALA(STATE BRIEF) RESPONDENT: --------------- STATE OF KERALA PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** Crl.Appeal No.961 of 2007-A ***************************** Dated this the 1st day of December, 2011 JUDGMENT BASANT, J. Did the court below err in coming to the conclusion that the pieces of circumstantial evidence relied on by the prosecution point safely to the complicity of the accused for the offences punishable under Sections 392 and 302 I.P.C? This is the short question arising for consideration in this appeal. 2. A woman, aged 60 years, Kannayi by name, was found lying dead with injuries by the side of a public road at about 11.30 a.m on 10.10.2004. Her gold ear rings were missing. PW1, a local politician, was informed of this. He went to the scene of occurrence. He proceeded to the local police station to lodge Ext.P1 F.I statement. On the basis of Ext.P1 F.I statement, a crime was registered and PW18 commenced the investigation. The mystery of the crime was resolved in no time. PW18 completed his investigation and filed the final report/charge sheet before the learned Magistrate having jurisdiction. The learned Magistrate committed the case to the Court of Session Crl.Appeal No.961 of 2007-A 2 and the Court of Session took cognizance of the offences alleged under Sections 392 and 302 I.P.C against the accused. When charges were framed, the accused denied the offences alleged against him. Thereupon the prosecution examined PWs 1 to 18 and proved Exts.P1 to P16. M.Os 1 to 34 were also marked by the prosecution. 3. The accused denied all circumstances that appeared in evidence against him and which were put to him. In the course of 313 examination and in the course of cross examination, he took up a defence of total denial. Called upon to enter on defence, the accused did not adduce any oral evidence. Exts.D1, D1(a) and D2 are case diary contradictions marked by the accused when PWs 7 and 8 were cross examined. 4. The learned Sessions Judge on an anxious evaluation of the various circumstances available in the case found it easy to sail to the safe conclusion that offences under Sections 392 and 302 I.P.C have been established satisfactorily against the accused. He was sentenced to undergo imprisonment for life under Section 302 I.P.C and to Rigorous Imprisonment for a period of 6 years and to pay a fine of Rs.5,000/- under Section 392 I.P.C. Default sentence was also prescribed. Crl.Appeal No.961 of 2007-A 3 5. Before us the learned counsel for the appellant Ms.Sreekala and the learned Public Prosecutor have advanced their arguments. 6. An appellate judgment is and ought to be read as a continuation of the judgment rendered by the trial court. We deem it unnecessary for an appellate court to resort to the unnecessary and meaningless exercise of attempting to re- narrate the oral and documentary evidence relied on by the rival contestants. Suffice it to say that the evidence of PWs 1 to 18 and Exts.P1 to P16 have been read to us threadbare by the learned counsel for the appellant. Exts.P1 to P16 have also been read to us in extenso. Counsel have also taken us through the charge framed against the accused as also the examination under Section 313 Cr.P.C of the accused. We shall refer to relevant materials specifically wherever necessary in the course of discussions later. 7. The case rests entirely on circumstantial evidence. The prosecution has not been able to trace any eye witness for the occurrence. They were hence left to be content with placing incriminating circumstances against the appellant before the learned Sessions Judge. Crl.Appeal No.961 of 2007-A 4 8. To the law relating to appreciation of evidence in a case resting solely on circumstantial evidence now. The position of law is too well settled to justify or warrant specific reference to any precedents. The learned Sessions Judge has specifically re-narrated the principles applicable. Suffice it to say that in a case resting solely on circumstantial evidence, each circumstance has to be firmly and satisfactorily established. The circumstances must constitute strong links in a strong chain which effectively and unerringly point to the guilt of the accused - to the exclusion of every reasonable hypothesis of innocence of the appellant. 9. Having so stated the law, we shall now specially refer to the various circumstances relied on by the prosecution. The learned counsel for the appellant contends that these circumstances have not been satisfactorily established and even if established, they do not effectively and convincingly point to the guilt of the accused. At any rate, the young accused, a person aged about 21 years, is entitled to be conceded the benefit of doubt, argues the learned counsel. 10. The learned Public Prosecutor on the contrary contends that all the circumstances relied on by the prosecution Crl.Appeal No.961 of 2007-A 5 have been satisfactorily established. The chain of circumstances effectively establishes the guilt of the accused and rules out any possible theory of innocence of the accused. 11. We shall now advert to the circumstances. But before doing the same, we need to remind ourselves that it is not the number of circumstances that matters, the probative effect and consequences of the circumstances established by the prosecution is most crucial. 12. The circumstances relied on by the prosecution are enumerated below: i) Deceased Kannayi died of grievous homicidal injuries found on her person. ii) When she was found dead, M.O1 series gold ear rings worn by her were found missing. iii) Shortly after the deceased was found lying dead, M.O1 series were found in the possession of the accused, for which possession he did not offer any explanation. iv) The accused had made an extra judicial confession to PWs 1 and 2 when they demanded explanation, that the culpable indiscretion was committed by him. Crl.Appeal No.961 of 2007-A 6 v) After the arrest of the accused when he was questioned by the police, he furnished information to the police which led to the recovery of M.O2 iron rod, which was found blood stained on chemical examination and which, as per the medical evidence, could have been used for the infliction of injuries found on the person of the deceased. vi) Blood stains of the same group of blood (B group) of the deceased, were found on the clothes worn by the accused at the relevant time. 13. We shall now proceed to discuss whether these circumstances have been proved and the safe inferences which flow from proved circumstances if any. Circumstance No.(i) 14. Kannayi was found lying dead by the side of the road with grievous injuries at the place described in Ext.P2. In the inquest report Ext.P7, we have a description of the injuries found on her person. We have competent medical advice tendered by PW14 duly supported by Ext.P10 postmortem certificate about the nature of injuries suffered by her and the cause of her death. Exts.P11 and P12 photographs taken at the time of the postmortem examination are also there to convey to the Court a Crl.Appeal No.961 of 2007-A 7 clear idea about the nature of injuries suffered. The cause of death of deceased Kannayi is not disputed by the appellant. There can be no possible dispute also. We are satisfied, in these circumstances, that the above pieces of evidence confirm the undisputed conclusion of the court below that the deceased died of fatal injuries suffered by her on her head as described in Ext.P10. In this context it will also be relevant to note the evidence of PW14 that the injuries found on the person of the deceased could have been inflicted with a weapon like M.O2. The first circumstance is thus proved beyond any semblance of doubt. This undisputed circumstance does not deserve to detain us any longer. Circumstance No.(ii) 15. According to the prosecution, the deceased was wearing M.O1 series before she met with her death. PW9, son of the deceased, has tendered specific evidence on this aspect. We have some evidence available from PW10 to corroborate this version of PW9. When the body was found, it was not found to have M.O1 series on it. It is argued that the oral evidence of PWs 9 and 10 on this aspect cannot be accepted and acted upon. The inquest report clearly shows that the deceased woman who Crl.Appeal No.961 of 2007-A 8 was otherwise bedecked with ornaments (most of them not of gold) was not having any ear ring. On probabilities it appears artificial that the deceased who had such ornaments did not wear any ear rings. We find no reason not to accept the oral evidence of PW9. Deceased was his mother and the competence of a son to identify the ear rings worn by his mother cannot possibly be questioned. This is so notwithstanding his inability to specially assert about the number of stones on M.O1. That inability of his cannot generate any reasonable doubt in a prudent mind. We are of the opinion that the court below was eminently justified in placing reliance on the oral evidence of PW9 to conclude that M.O1 series is the gold ear rings worn by his mother and which were not found available on the dead body after her death. PW10, a neighbour, to whose house the deceased appears to have gone on that day earlier, did also identify M.O1 series. Her reluctance to specially assert that M.O1 series are the gold ornaments in the course of cross examination only shows that the witness is truthful, reasonable and cautious. Such a witness can identify an ornament worn by another, whom she had met earlier on that day casually, only in that manner. The inconclusiveness in the evidence of PW10 does Crl.Appeal No.961 of 2007-A 9 not in any way generate any reasonable doubt in the identification of M.O1 series by PW9. We do, in these circumstances, concur with the conclusion of the court below that M.O1 series are ornaments of the deceased and that when the body was found at the scene of the crime, those ornaments/ear rings were missing from the dead body. The second circumstance is also convincingly established by the prosecution. Circumstance Nos.(iii) & (iv) 16. For the sake of convenience, we propose to discuss these two circumstances together. The prosecution relies on the circumstance that the accused was found in possession of M.O1 series on that morning after the probable time of death of the deceased. According to the prosecution, PW2 is an autorickshaw driver. The accused had got into that autorickshaw on that morning. The autorickshaw had taken the accused to certain places as demanded by him. PW2 perceived that the accused was attempting to sell certain ornaments. Character evidence is inadmissible and hence we do not advert in detail to the reasons that prompted PW2 to entertain doubts and suspicion. According to PW2, PW2 was told by the accused that he was going to Crl.Appeal No.961 of 2007-A 10 jwellers/Pawnees to sell/pawn the gold ear rings belonging to his grandmother. PW2 became suspicious. The ornament was shown to PW2 by the accused and according to PW2 those ornaments (M.O1 series) were seen by him. At that point, PW2 did not know of the presence of the dead body of Kannayi at the scene. Later, when he came to know of that circumstance, he informed PW1, the informant, that he has such a suspicion about the accused. By then, evidently Ext.P1 F.I statement was already lodged by PW1. PWs 1 and 2 and some others questioned the accused. The accused allegedly made a confession statement to PWs 1 and 2 and others. He owned responsibility for the crime and stated that such indiscretion happened to be committed. PWs 1 and 2 along with the others made the accused available before PW18 and PW18, under Ext.P5 seizure mahazar in the presence of PW6, seized M.O1 series along with M.Os 3 and 4, blood stained clothes worn by the accused at the time he was produced before PW18. 17. The learned counsel for the accused contends that the oral evidence of PWs 1 and 2 as also the evidence of PW18 on this aspect should not be accepted and acted upon. We have gone through the cross examination of PWs 1 and 2 in detail. Crl.Appeal No.961 of 2007-A 11 They are local persons. PW1 claims to be a responsible member of a political party and an activist. PW2, an autorickshaw driver, as also PW1 are not shown to have any motive to speak falsehood against the appellant. Chronometric inadequacy and inconsistency is attempted to be pointed out. PW1 had lodged F.I statement at 12.30 p.m on 10.10.2004. The questioning of the accused by PWs 1, 2 and others and his extra judicial confession is said to be given some time thereafter by about 1 p.m (before 1 p.m). Ext.P7 inquest report was prepared by PW18 between 2.30 p.m and 5 p.m. According to PW18, the accused was arrested only at 6 p.m and it was then that M.O1 series and M.Os 3 and 4 were seized under Ext.P5 from the accused. 18. The recovery of M.O1 series and M.Os 3 and 4 is certainly not sought to be admitted under Section 27 of the Evidence Act. By then, the accused had allegedly made confession statement to PWs 1 and 2. They knew that the gold ornament was available with him. It was in such circumstances that the accused was produced before the police/PW18 by PWs 1 and 2 and others. Evidence of PWs 1, 2 and 18, even when subjected to the most critical examination, do not reveal any Crl.Appeal No.961 of 2007-A 12 reason to warrant an approach with reservation or suspicion from this Court. The evidence very clearly and convincingly shows that the conduct of the accused had aroused suspicion; that PW2 had perceived such suspicion; that he had conveyed it to PW1; that the accused was called upon to explain; that he had made extra judicial confession to PWs 1 and 2 about his contumacious role in the death of the deceased and that M.O1 series were available in the possession of the appellant when he was produced by PWs 1 and 2 and others before PW18. Circumstances (iii) and (iv) have thus been established convincingly and no trace of doubt is left in our mind about the correctness of the conclusion of the court below on these circumstances. Circumstance No.(v) 19. According to the prosecution PW18, after arrest of the accused at 6 p.m he questioned the accused. The accused allegedly gave a confession statement. The confession statement is inadmissible in evidence. But in the course of the confession statement, the accused is alleged to have furnished information to PW18 about the concealment of M.O2 weapon (iron rod) by him. The relevant portion in Ext.P14 shows that the accused had Crl.Appeal No.961 of 2007-A 13 concealed it by throwing it into a well. The well was covered with vegetation. Attempts were made to empty the well. Water was drained out. Persons were asked to get into the well and it is thus that PW5 went into the well and came out with M.O2. This version is supported eminently by the oral evidence of PW18 and the contents of Ext.P6 seizure mahazar, in which PW7 is an attestor. It is true that PW7 was declared hostile. But notwithstanding the hostility of PW7, the contents of Ext.P6 eminently corroborate the oral evidence of PW18 about the recovery. It is not infrequently that criminal courts come across hostility of independent attestors to seizure mahazars prepared by the police. Such hostility cannot deliver any advantage to the indictees when the contents of the contemporaneous seizure mahazar eminently corroborate the oral evidence of the Investigating Officer. 20. Read this with the evidence of PW14 that the injuries described in Ext.P10 could be caused with a weapon like M.O2. Read this also with the evidence available from Ext.P13 that in M.O2 human blood was detected. The circumstance of recovery of M.O2 on the basis of the information furnished by the accused assumes importance and significance in this context. Crl.Appeal No.961 of 2007-A 14 21. Argument is advanced that the well is in an open place and not a secret place. It is fallacious to argue that recovery in a scenario like the instant one can be doubted or rejected for the reason that the well happens to be located in an open place. The recovery of the weapon was from its place of concealment, deep inside the well under water. The water had to be drained out. People had to enter the well to trace M.O2. The argument that the information furnished by the accused does not satisfy the requirements of Section 27 of the Evidence Act is, to say the least, unacceptable. We have the evidence of PW8, a co-worker of the accused, to show that M.O2 was in the possession of the accused prior to the incident. They together had gone for some construction work and from the construction site, the accused had carried M.O2 to his house, according to PW8. PW8 was also declared hostile. But that hostility is of no consequence at all. He conformed to the version of the prosecution, but only stated that M.O2 was not shown to him by the police. It is on this circumstance that he was sought to be declared hostile. It is true that the prosecution had wanted to examine PWs 3 and 4 also to confirm that the accused had started from his house with M.O2 weapon on that morning. Crl.Appeal No.961 of 2007-A 15 Consequent to the hostility of PWs 3 and 4, the prosecution could not establish that aspect. 22. The above discussions lead us to the conclusion that the court below was eminently justified in coming to the conclusion that on the basis of information furnished by the accused in his confession statement Ext.P14 to PW18, PW18 had recovered blood stained M.O2 (with which as per the medical opinion, the injuries on the deceased could be caused) under Ext.P6 seizure mahazar in the presence of PW7. This circumstance is also firmly established. Circumstance No.(vi) 23. The prosecution finally relies on the presence of bloodstains on the clothes of the appellant, ie. M.Os 3 and 4. Both of them had human blood on them. One of them was identified to be of blood group B. The blood stained clothes of the deceased was also found to belong to the B group of blood. M.Os 3 and 4, as stated earlier, were recovered under Ext.P5 by PW18 in the presence of PW6 after the arrest of the accused. We find no reason to doubt the evidence of that recovery tendered by PW18 and PW6. Even Ext.P5 shows that M.Os 3 and 4 had blood stains on it. On these aspects, we have the evidence Crl.Appeal No.961 of 2007-A 16 of PW2 also confirming presence of blood stains on the clothes of the appellant. 24. The learned counsel for the appellant contends that there is nothing to show that the blood group of the appellant is not B. It is true that prosecution had not strained to adduce evidence on that aspect. Even if the accused were found to have blood of B group, that does not in any way militate against the significance of this circumstance as the accused has no case that blood on his clothes could have come from any injuries found on his person. Even if the evidence of blood group of the deceased and the blood group of the stain on the clothes of the accused tally, had tallied, that cannot certainly lead the Court to the firm conclusion that the blood on the shirt of the accused came from the same source (ie. the body of the deceased). The identification of blood group does not take us thus far. Certainly future criminal investigation with scientific aid can certainly afford information to the Court specifically by a proper DNA test that the blood found on the clothes of the accused came from the same source, namely the deceased. At the moment, such evidence is not there. The omission to ascertain the blood group of the appellant cannot, in these circumstances, be held to be Crl.Appeal No.961 of 2007-A 17 crucial or vital. We hold that the circumstance No.(vi) has also been satisfactorily established. 25. Do the 6 circumstances referred above help the Court to come to a safe conclusion about the culpability of the appellant? Is there any reasonable doubt still left about the innocence of the accused? These are the last and most vital questions to be considered. The court below has rightly adverted to the presumption under Section 114(a) of the Evidence Act. Recent possession of ornaments/personal belongings of a deceased person and the absence of explanation for such possession is forensically a very important circumstance pointing to the guilt of the accused. Elementary prudence and commonsense must persuade an alert mind to turn to the accused to explain the possession of such personal belongings of a deceased person, which are found missing at the time of his death. The accused has not offered any explanation for the possession of M.O1 series with him. The recovery of M.O2 on the basis of information furnished by the accused, which weapon is shown to belong to the accused and which weapon, as per the medical evidence, could have been used for the infliction of injuries on the deceased, is another circumstance convincingly Crl.Appeal No.961 of 2007-A 18 pointing to the complicity of the accused. The unexplained presence of human blood belonging to the same group as that of the deceased on the clothes of the accused also strengthens the chain of circumstances and helps the Court effectively to rule out any possibility of innocence of the accused. 26. Extra judicial confession made by the accused is proved by PWs 1 and 2. The court below has accepted the same. We have concurred with that conclusion of the court below. Extra judicial confession, it is stated, quoting various precedents, is a weak piece of evidence. Such a general and sweeping statement may not be acceptable. The weakness, if any, of extra judicial confession stems from the ease and felicity with which such evidence can be concocted falsely. An attitude of distrust cannot certainly be adopted to the evidence of extra judicial confession if the same is found to be otherwise convincing. In this context we visit the extra judicial confession in this case again. The dead body of the deceased was found. Ear rings were found missing. PW 1 put two and two together and remembered that the appellant was making attempts to sell ear rings to jwellers/pawnees on that morning. Suspicions were aroused and the accused was questioned by PWs 1 and 2. The Crl.Appeal No.961 of 2007-A 19 accused was bound to offer an explanation and it is then that he broke down and made the extra judicial confession of PWs 1 and 2. We take note of the evidence of PWs 1 and 2. There is not an iota of reason to approach the evidence of PWs 1 and 2 with any amount of dissatisfaction. Of course in this case, we are not called upon to decide whether conviction can be founded on the extra judicial confession made to PWs 1 and 2 by the appellant. Suffice it to say that extra judicial confession proved by PWs 1 and 2 go a long way in