IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 CRL.A.No. 1781 of 2004 ------------------------ SC.288/2003 of THE ADDL.SESSIONS JUDGE(ADHOC-II)THODUPUZHA C.P.NO. 31/01OF THE JFCM COURT DEVIKULAM .................... APPELLANT: ACCUSED ------------------ NAGARAJ S/O. CHELLAPANDY, M.P.XIII/800, FACTORY DIVISION, THENMALAI ESTATE, KDH, VILLAGE, MUNNAR. RESPONDENT: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA FOR CIRCLE INSPECTOR OF POLICE, MUNNAR. BY PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== CRL.A.NO.1781 OF 2004 ============================ DATED THIS THE 17th DAY OF JUNE 2008 JUDGMENT Balakrishnan Nair,J. The appellant challenges the conviction and sentence imposed on him by the Additional Sessions Judge(Adhoc-II), Thodupuzha in S.C.No.288/2003 in this appeal. The case of the prosecution is summarised as follows: 2. Pws.1 and 3,who are husband and wife, were living in the residential quarter of Thenmala Estate. Smt.Saraswathi was their maid servant. She normally comes for work at 8.30 a.m.in the morning and leaves in the evening. Pws.1 and 3 are teachers and while they go for work, their child,PW2, is left in the care of the above said Saraswathi. On 30-7-1998, in the morning, when the deceased Saraswathi and PW2, the child, were alone in the house,the appellant/accused knocked at the door. When Saraswathi opened the door, he entered into the room, gagged her mouth CRL.A.NO. 1781/2004 -2- and nose, throttled her neck so as to break a bone, kicked her left and right in the chest several times. Smt. Saraswathi fell unconscious. The accused removed the gold chain worn by her weighing about 15.800 grams. He also snatched the ear-rings worn by her. One of them fell down in the scene of occurrence itself. The appellant escaped with the chain and the remaining ear-ring. On the basis of the information lodged by PW1, a crime was registered for the offences of murder and robbery by the police. During the course of the investigation, the accused was suspected and on questioning him he confessed about the commission of the crime. Based on his confession, the stolen gold chain belonging to the deceased was recovered from a money lender firm, Thiruppathi Finance. The Circle Inspector of Police, PW22, completed the investigation and laid the charge before the Judicial First Class Magistrate Court, Devikulam. The learned Magistrate committed the case for trial by the Sessions Court, Thodupuzha. 3. The trial court framed charges against the accused for the offences punishable under Sections 302, 397 and 201 of the CRL.A.NO. 1781/2004 -3- Indian Penal Code. He pleaded not guilty to the charges. 4. From the side of the prosecution, Pws.1 to 24 were examined and Exts.P1 to P35 were marked. MOs.1 to 18 were also produced. From the side of the defence, Exts.D1 and D2 were marked through the investigating officer,PW22. After the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied the statement of the witnesses implicating him in the case. Finally, it was stated that the police brutally manhandled him and obtained his signatures in some papers. In other words, he denied the making of any confession to the police. The learned Sessions Judge after hearing on both sides found the appellant guilty for the offences under Sections 302, 397 and 201 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.5,000/- and in default, to undergo imprisonment for a period of three months for the offence under Section 302 I.P.C. He was sentenced to undergo rigorous imprisonment for seven years for the offence under Section 397 I.P.C. and also to pay a fine of Rs.1000/- and in default, to undergo imprisonment for two CRL.A.NO. 1781/2004 -4- months. For the offence under Section 201, he was sentenced to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs.1,000/- and in default, to undergo imprisonment for two months. 5. The aggrieved appellant has preferred this appeal on various grounds. Nobody appeared for the appellant before this Court. But we perused the entire evidence on records including the deposition of witnesses and documents produced with the assistance of the learned Public Prosecutor. From the appeal memorandum, we notice that the appellant mainly attacks the reliance placed by the learned Sessions Judge on the evidence of PW2. According to the appellant, there is no substantive evidence to prove his guilt. The child witness is a tutored witness and the evidence of the child should have been eschewed from consideration. One of the circumstance relied on against the accused is the identification of him by PW2, the child witness. But going by Ext.P2, the same is conducted on18-8-1998. On that day the appellant was under judicial custody and was lodged in jail. So, the identification made by PW2 lacks CRL.A.NO. 1781/2004 -5- credence. It is also submitted that the recovery of MO.3, the gold chain claimed to be worn by the deceased is not reliable. No independent witness has testified to the recovery of that material object , it is alleged. It is also stated in the appeal memorandum that Ext.P32 ledger of Meena Finance is a fabricated document. There are two simultaneous entries regarding the same transaction in the name of the accused. PW22 has failed to explain this irregularity in the ledger, it is pointed out. The appellant has been convicted based on surmises and conjectures . The circumstantial evidence available in this case is not sufficient to prove the guilt of the accused beyond reasonable doubt, it is contended. 6. The learned Public Prosecutor, on the other hand, submitted that the evidence of PW2 is quite reliable. A perusal of the deposition will show that. It is submitted, at any rate, the identification of the accused after a few days of the incident lends credence to the version of the child. The date shown in Ext.D2 as 18-8-1998 is a mistake. PW22 has explained that the correct date is 12-8-1998 and the date shown as 18-8-1998 is only a CRL.A.NO. 1781/2004 -6- mistake. The learned Public Prosecutor also pointed out that MO.3 has been recovered from Thiruppathi Finance based on the information received from the accused. Further the token, Ext.P10, for pledging MO.1 was recovered from the house of the appellant and that too based on the information furnished by him. MO.3 was recovered in the presence of the witnesses. It has been identified by a near relative, i.e. PW13. In fact, PW13 has pledged that gold chain for raising some funds. He gave back the gold chain to the deceased Saraswathi only a few days before her murder. So, it is pointed out that the recovery of MO.3 based on the information furnished by the appellant alone is sufficient to prove his guilt beyond doubt. The accused has failed to explain how he came to be in possession of MO.3, it is pointed out by the learned Public Prosecutor. In view of the said clinching evidence, the conviction and sentence imposed on the appellant has to be sustained, it is submitted. 7. The first point raised by the appellant is regarding the reliability of the version given by PW2. According to the appellant, PW2 alone is the occurrence witness. If his evidence CRL.A.NO. 1781/2004 -7- is not trustworthy, then there is no evidence to convict him for the offences. We feel that a child, which witnessed something at the age of two years and six months, may not remember it when he is at the age of seven years. But in this case the child immediately after the incident identified the accused when he was brought to the scene of occurrence in the company of so many people. The said identification was on 12-8-1998, which was a few days after the incident. So that part of the evidence of the child can be safely relied on provided the evidence of PW22 is trustworthy. We notice that the appellant has a case that the evidence of PW22 cannot be relied on as the identification of the accused by PW2 is stated to have taken place on 18-8-1998. The submission is made as on the said date the accused was in jail. But we notice that PW22 has explained while in the box that the discrepancy in the date was only a mistake. 8. The next point canvassed by the appellant is regarding the recovery of MO.3 gold chain. According to him, no evidence was tendered to prove that the gold chain belonged to the deceased. But PW13, who is a close relative of the deceased and CRL.A.NO. 1781/2004 -8- who had occasion to pledge that chain for raising funds for him, has identified that chain. Therefore, we are of the view that the prosecution has succeeded in proving that the deceased was the owner of the chain. The appellant also contends the alleged recovery made is unreliable and Ext.P32 is a fabricated document. Ext.P32 is a ledger maintained by Meena Finance in the regular course of business. In that we notice the seal of the competent authorities under the Kerala Money Lenders Act. The evidence based on Ext.P32(a) is only a supporting evidence. The guilt of the accused is proved by the recovery made from Thiruppathi Finance. We notice that no ground has been raised in the appeal memorandum challenging the genuineness of Ext.P24, ledger, or Ext.P24(a) relevant page containing the relevant entry in the ledger of Thiruppathi Finance. The case of the prosecution is that the appellant, to hide his identity from the police, pledged MO.3 chain with the Thiruppathi Finance under a false identity. Though his name is Nagarajan, he pledged the gold under the name of Palani Swami. The recovery of MO.1 was made from Thiruppathi Finance based on the CRL.A.NO. 1781/2004 -9- confession statement of the appellant, under Section 27 of the Evidence Act. The token,Ext.P10, for pledging the gold with Thiruppathi Finance dated 9-8-1998 was recovered from the house of the accused based on his confession statement, Ext.P14 (a). PW9 has spoken regarding the token and he has recognized the appellant also as the person who made the pledge of the gold ornaments. So, we feel that the recovery of the gold ornaments worn by the deceased from Thiruppathi Finance at the instance of accused is proved by credible evidence and the same will conclusively prove the guilt of the accused, unless he explains, at least by preponderance of probability, how he came to be in possession of it. As mentioned earlier, we notice that the appellant has not chosen to seriously challenge the genuineness of Ext.P10 or the recovery made from Thiruppathi Finance or the genuineness of Ext.P24(a) relevant page of the ledger maintained by the Thiruppathi Finance. 9. The next point to be considered is whether the evidence of the investigating officer and other witnesses are reliable, and therefore, could be acted upon. As rightly pointed out by the CRL.A.NO. 1781/2004 -10- learned Sessions Judge, there is no reason for the witnesses, Pws.1 and 3, to falsely implicate the appellant by concocting evidence. Nothing has been brought out in the cross examination of PW22 to discredit his evidence. So, we are inclined to believe the version of the prosecution witnesses. We are of the view that they are speaking the truth. Therefore, we hold that the evidence on record clinchingly prove the guilt of the accused beyond reasonable doubt. Therefore, we uphold the conviction and sentence imposed on the appellant by the trial court. In the result, the Criminal appeal fails and it is dismissed. Sd/- K. BALAKRISHNAN NAIR, JUDGE Sd/- M.C. HARI RANI JUDGE ks. TRUE COPY P.S.TO JUDGE