IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 CRL.A.No. 716 of 2001 ------------------------------------ SC.176/1997 of ADDL. SESSIONS COURT, KOZHIKOE .................... APPELLANT/ACCUSED: MUTHUKRISHNAN @ DHANAPALAN, S/O CHINNAYYA UDAYAR, AGED 26, NAVELPETTU, THIRUVARAMBUR P.O., THIRUCHIRAPPALLY, TAMIL NADU. BY ADV. SRI.K.K.JAYARAJ NAMBIAR RESPONDENT/COMPLAINTNT: STATE OF KERALA REP. BY C.I. OF POLICE, MAVOOR POLICE STATION. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.716 of 2001 -------------------------- JUDGMENT Appellant is the second accused in S.C.No. 176/1997 on the file of Sessions Court, Kozhikode. He was convicted and sentenced for the offence under Section 201 read with Section 34 of Indian Penal Code and acquitted of the offences under Sections 302 and 392 read with Section 34 of Indian Penal Code. State has not challenged the acquittal of the appellant for the offences under Sections 302 and 392 of Indian Penal Code and it has become final. The appeal is filed challenging the conviction and sentence for the offence under Section 201 read with Section 34 of Indian Penal Code. 2. Prosecution case is that deceased Jainy John, a Telephone Operator in Mavoor Rayons, Kozhikode, was residing in her quarters. First accused, a relative of her husband, along with the CRA 716/01 2 appellant came there under the guise that they have some employment nearby. Appellant is a Tamilian. On 11.5.1996 at about 8.45 p.m., appellant and the first accused, in furtherance of their common intention to cause the death of Jainy John and rob her gold ornaments, caused her death by strangulating her using MO9 rope and also by putting pillow on her face for suffocating and thereafter, hanged her on the roof using her saree as a ligature and robbed gold ornaments worth Rs.46,500/- and thereby committed the offences under Sections 302, 392 and 201 read with Section 34 of Indian Penal Code. 3. First accused absconded. Therefore, the case as against him was split up and appellant alone was tried. Appellant pleaded not guilty. Prosecution examined 27 witnesses and marked 40 exhibits and identified 23 material objects. Portions of the statements of PWs 1 and 5, recorded under Section 161 of Code of Criminal Procedure, were confronted CRA 716/01 3 and marked on the side of the defence. Though appellant was called upon to enter on his defence and adduce evidence, he did not adduce any evidence. 4. Learned Additional Sessions Judge heard the prosecution and the defence and by judgment dated 31.3.2001 acquitted the appellant of the offences under Sections 302 and 392 read with Section 34 of Indian Penal Code and convicted and sentenced him for the offence under Section 201 read with Section 34 of Indian Penal Code. Learned Additional Sessions Judge found that there is no direct evidence to establish the murder. On the evidence, it was found that death of Jainy John was not suicide but homicide. It was also found that she was strangulated and murdered and thereafter she was hanged. But, it was found that there is no conclusive evidence to connect the appellant with the offences under Sections 302 and 392 of Indian Penal Code. MO2 ring was identified by PW1 as the CRA 716/01 4 ring worn by the deceased, which was allegedly recovered from the appellant under Exhibit P4 seizure mahazar, learned Additional Sessions Judge, rejecting the contention of the appellant, at the time of evidence, that the ring was not suitable to be worn by the appellant, held that MO2 ring belonged to the deceased and it was recovered from the appellant. It was found that the said recovery is insufficient to prove that appellant committed murder or robbery. Though MO9 rope was recovered under Exhibit P6 mahazar and it was contended that MO9 rope was used for committing the murder and it was recovered under Exhibit P6 mahazar on the information furnished by the appellant, learned Additional Sessions Judge found that appellant is a Tamilian and the exact words spoken to by the appellant are not brought in evidence. It was found that the extracted portion of the statement, which led to the recovery of MO9 rope, shown in Exhibit P6 mahazar, is not the words of the appellant. It CRA 716/01 5 was, therefore, held that the recovery is not based on the information furnished by the appellant. It is in such circumstances, appellant was acquitted of the offences under Section 302 and 392 read with Section 34 of Indian Penal Code. But, appellant was convicted for the offence under Section 201 read with Section 34 of Indian Penal Code finding that appellant, along with the first accused, threw away MO9 rope in the drainage near to the Moffusil Bus Stand, Kozhikode, which was recovered under Exhibit P10 mahazar and appellant thereby committed the offence under Section 201 of Indian Penal Code. 5. Argument of the learned counsel appearing for the appellant is that there is no legal evidence to convict the appellant for the offence under Section 201 of Code of Criminal Procedure. It is argued that MO9 is not proved to be a rope/ weapon used for committing murder and there is no evidence to prove that appellant was aware of the murder and in such circumstances, the conviction is CRA 716/01 6 illegal. Learned counsel relied on the decision of the Apex Court in Sou.Vijaya alias Baby v. State of Maharashtra ((2003) 8 SCC 296) and argued that when the first accused absconded, the finding that first accused, with the aid of another person, committed the offence is based on the unchallenged evidence with opportunity to the first accused to cross- examine the witnesses and therefore, there is no evidence to prove that appellant was aware of the murder or has reason to believe the commission of murder and hence, the conviction is bad. 6. Learned Public Prosecutor relying on the decision of the Apex Court in Palvinder Kaur v. The State of Punjab (AIR 1952 SC 354) argued that in a case of circumstantial evidence, when the circumstantial evidence pointed out are sufficient to establish that appellant was aware of the murder or has reason to believe that he knew about the murder and tried to destroy the evidence by taking the rope from the scene of occurrence to far off CRA 716/01 7 place and putting it in the drain and it establish that appellant is guilty of the offence under Section 201 of Indian Penal Code and therefore, there is no reason to interfere with the conviction. 7. Section 201 of Indian Penal Code provides that whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false, is punishable as provided therein. 8. Therefore, the essence of the offence is the intention to screen the offender from legal punishment. The accused either must have knowledge or must have reason to believe that an offence has been committed. With the said knowledge or belief and with the intention of screening the offender CRA 716/01 8 from legal punishment, if he causes any evidence of the commission of that offence to disappear, he is liable to be punished for the offence. 9. Though learned counsel appearing for the appellant submitted that there is no evidence to prove that first accused committed murder and the finding is based on the unchallenged evidence, I cannot agree. Learned Additional Sessions Judge, on evaluating the evidence, found that first accused, with the aid of another person, committed murder of Jainy John by strangulating her and thereafter, hanging her to make it appear that she committed suicide. The allegation against the appellant regarding the offence under Section 201 of Indian Penal Code is that he, along with the first accused, threw MO9 plastic rope used for committing the murder into a drain near Mofusil Bus Stand, Kozhikode. According to the prosecution, MO9 was recovered based on the information furnished by the appellant and as led by him. It was recovered under CRA 716/01 9 Exhibit P6 mahazar on 29.5.1996. The murder was on the night of 11.5.1996. The recovery was effected by PW27, the Investigating Officer. Learned Additional Sessions Judge considered the question of recovery of MO9 rope under Exhibit P6 mahazar, while considering the question whether there is evidence to prove commission of an offence under Section 302 of Indian Penal Code against the appellant in paragraph 37 of the impugned judgment. Learned Additional Sessions Judge found that evidence of PW27 establishes that he was not well- worsed in Tamil and the alleged confession statement of the appellant was given in Tamil. It was found that as per the evidence of PW27, the Tamil version spoken to by the appellant was translated by Sukumaran, Assistant Sub Inspector of Police and it is the translated version, which is extracted in Exhibit P6 mahazar. Learned Additional Sessions Judge found that as per the evidence of PW27, the said statement was recorded from CRA 716/01 10 Thiruvanchiyoor Police Station of Tamil Nadu, in the presence of Tamil Nadu Police Constables and the statement could have been recorded with the aid of any of the Police Constables. It was also found that the Assistant Sub Inspector of Police Sukumaran, who allegedly translated the statement of the appellant, was not examined. Learned Additional Sessions Judge, therefore, held “so, in the absence of such evidence, it is not safe to rely on the alleged confession statement extracted, which has been noted in Exhibit P6 mahazar to come to the conclusion that the seizure was based on the confession statement given by the accused so as to attract the recovery under Section 27 of Indian Evidence Act.” Therefore, learned Additional Sessions Judge did not accept the recovery of MO9 rope under Exhibit P6 mahazar as based on the information furnished by the appellant. If that be so, the same recovery cannot be used against the same accused to convict him for an offence under CRA 716/01 11 Section 201 of Indian Penal Code. Learned Sessions Judge convicted the appellant for the reason that conduct of the appellant will to go show that he knew that rope was used for commission of the offence which was done by the first accused and it was with a view to help the first accused in concealing the same and he put it in the drain and that is how he could take the same and hand it over to PW27, in the presence of PW10, as stated in Exhibit P6 mahazar. This knowledge was used to convict the appellant for the offence under Section 201 of Indian Penal Code. 10. First of all, to convict the appellant based on the concealment of MO9 rope, there should be evidence to prove that MO9 was used for commission of the offence. There is no legal evidence to establish that MO9 rope was used to cause the death of Jainy John. There is no evidence whatsoever to prove that it was MO9 which was used for strangulating Jainy John, to cause her death. CRA 716/01 12 Therefore, even if MO9 rope was recovered on the information furnished by the appellant, it is not possible to convict the appellant based on that recovery, as it cannot be said that appellant concealed any evidence used for the commission of the offence. In such circumstances, conviction of the appellant cannot be sustained in the absence of any evidence to prove that MO9 rope was used for commission of the offence and it was recovered on the information furnished by the appellant. Hence, conviction of the appellant can only be set aside. Appeal is allowed. Conviction of the appellant for the offence under Section 201 read with Section 34 of Indian Penal Code is set aside. Appellant is found not guilty of the offence. He is acquitted. 3rd August, 2010 (M.Sasidharan Nambiar, Judge) tkv CRA 716/01 13 M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.716 of 2001 -------------------------- JUDGMENT 3rd August, 2010