IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 CRL.A.No. 631 of 2006(A) ------------------------ SC.328/2003 of ADDL.SESSIONS COURT, KOZHIKODE .................... APPELLANT(S): ------------------- ASHRAFF, CONVICT NO.1272, CENTRAL PRISON, KANNUR. BY ADV. PREETHA.C.G(STATE BRIEF) RESPONDENT(S): ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI. P.N. SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON 29/01/2010 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 631 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2010. JUDGMENT Bhavadasan, J, Two persons were sought to be prosecuted for the offence punishable under Sections 449, 302, 392, 201 and 414 Indian Penal Code. Among them, the second accused was found not guilty of any of the offences and was acquitted of all the charges. The first accused was found guilty of the offences punishable under Sections 449, 302 and 394 IPC and he was convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 449 IPC. In default of payment of fine, he had to undergo rigorous imprisonment for one year. He was also sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 302 IPC. In default of payment of fine, he had to undergo rigorous imprisonment for a period of one year. He was also sentenced Crl.A.631/2006. 2 to undergo a term of imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 394 IPC. In default of payment of fine, he had to undergo rigorous imprisonment for one year. The sentences were directed to run concurrently. 2. Thazheputhiyedath Kadeessa @ Kadeeja, an octogenarian lady was living alone in her house. The house was in the compound owned by P.W.1 and P.W.1 put up a house for her. The deceased had a fancy for gold and she used to spent her earnings for acquiring the same. On 1.1.2000 in the morning, when P.W.6 had gone to give the food to Kadeeja, she was found lying dead in a pool of blood in her house. The news spread immediately in the locality. People gathered at her house. 3. P.W.2, who was the neighbour of Kadeeja and also a relative of the lady, laid Ext.P2 first information statement before Nadapuram Police Station. P.W.30, the Sub Inspector of Police recorded the same and registered the crime as per Ext.P2(a) FIR. Crl.A.631/2006. 3 The allegation was that Kadeeja was murdered for depriving her off her gold ornaments. Investigation was done by P.W.34. Initially the local police conducted the investigation, but later on the case was handed over to C.B.C.I.D. The accused was arrested and based on his confession statement M.O.4 weapon was recovered. Meanwhile, P.W.31, the Circle Inspector of Police had conducted inquest over the body of late Kadeeja and prepared Ext.P3 inquest report. He recovered M.Os. 7 to 15. He prepared the scene mahazar also. He recovered M.O.6 towel containing blood stains. P.W.32, who conducted part of the investigation, had recorded the statements of witnesses. P.W.34, based on the confession statement of the accused recovered a pair of chappals. He claims to have recovered M.O.3 based on the confession statement said to have been furnished by the first accused. During investigation it was revealed that Kadeeja had lost a gold ornament which she used to wear around her neck. P.W.34 found that the said article had been sold and the person, who bought the same Crl.A.631/2006. 4 had converted it into rings. So the rings were recovered. A good portion of the investigation was done by P.W.34. The allegations against the second accused, who was acquitted, were that he was a close associate of the first accused and helped him to dispose of gold ornaments of the deceased. His successor-in-office completed the investigation and laid charge before court. 4. JFCM, Nadapuram, before whom final charge was laid, took cognizance of the offences. On appearance of the accused before the said court, all legal formalities were complied with. The learned Magistrate found that the offences are exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Kozhikode under Section 209 Cr.P.C. for trial and disposal. The said court made over the case to Additional Sessions Court, Kozhikode for trial and disposal. Crl.A.631/2006. 5 5. On receipt of records, the latter court issued production warrant and the first accused was produced. Since the first accused expressed his inability to engage a counsel, a State Brief was appointed to defend him. After hearing both sides, charges were framed for the offences punishable under Sections 449, 302, 392, 201 and 414 IPC. To the charges, both the accused pleaded not guilty and claimed to be tried. Prosecution therefore had P.Ws. 1 to 34 examined Exts.P1 to P47 marked. M.Os. 1 to 18 were identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 of the Criminal Procedure Code. They denied all the incriminating circumstances brought out against them and maintained that they were innocent. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. Except having Exts.D1 to D4 marked, they chose to adduce no additional evidence. On a consideration of the materials before it, the court below found that the prosecution had not Crl.A.631/2006. 6 succeeded in establishing the case against the second accused and acquitted him of all the charges. The first accused was found guilty of the offences punishable under Sections 449, 302 and 394 IPC. He was convicted and sentenced as already mentioned. The said conviction and sentence are assailed in this appeal. 6. The question that arises for consideration is whether the court below was justified in holding the first accused guilty as alleged by the prosecution. 7. The prosecution case in brief is that the appellant, who, on an earlier occasion committed a minor theft and had left the place. He returned later and with the intention of robing the gold ornaments of the Kadeeja caused her death. He appropriated M.O.3 and another gold ornament said to have been worn by Kadeeja. It appears from a reading of the judgment of the court below that the prosecution mainly relied on the evidence of P.Ws.1, 2 and 6 to prove the incident. Reliance seems to have been placed on the evidence of P.W.3, a neighbour of Kadeeja, Crl.A.631/2006. 7 who claimed to have seen the accused near the house of Kadeeja on the previous day. P.W.9 also spoke about the presence of the accused near the house of Kadeeja on the previous day. It appears that the court below was greatly impressed by the recovery of M.O.3. 8. In fact the solitary item of evidence against the accused is the recovery of M.O.3. Of course, the prosecution seems to have taken the aid of recovery of M.O.4 weapon also. But the purpose of recovery of M.O.4 weapon does not appear to be clear. The principal witnesses relied on by the court below are P.Ws. 1 and 2. They identified M.Os. 1 to 3, which were usually worn by the deceased. The evidence of these witnesses coupled with the recovery of M.O.3 and the evidence of two witnesses who had seen the accused on the previous day near the house of late Kadeeja led the court below to hold the first accused guilty of all the charges levelled against him. Crl.A.631/2006. 8 9. Learned counsel appearing for the appellant pointed out that the finding of the court below is very unfortunate. It is not warranted by the evidence on record. The conviction, mainly based on the recovery of M.O.3, is clearly unsustainable for more than one reason. The evidence is to the effect that M.O.3 may not belong to the deceased at all. At any rate, there is conflicting evidence in that regard. P.W.6, a staunch witness for the prosecution says that M.O.3 did not belong to the deceased. Learned counsel pointed out that the incident was in 2000. The recovery of M.O.3 was in 2003. The prosecution had no case that M.O.3 had any unique features and that it is not easily available in the market. In fact there is nothing special in it and it is an ordinary wear of Muslim ladies. The recovery of M.O.3 is also not free from doubt. 10. Learned counsel pointed out that it is strange that the court below accepted the version of prosecution that M.O.3 contained blood stains at the time of recovery of this clinching Crl.A.631/2006. 9 item. It is rather inconceivable that the person, who was dealing in jewellery, would buy an ornament containing blood stains and the blood stains remained for three years. Learned counsel went on to point out that it can be very easily seen that the recovery etc were stage managed by the prosecution to rope in the appellant. The person, who had purchased M.O.3 would say that he had bought the same because of its antique nature and kept it for sale. He claims to have bought it from the appellant in 2002. That was long after the alleged robbery and the incident. It is also significant to notice, according to learned counsel, that most of the ornaments worn by Kadeeja were found on her body and only two items of gold ornaments were found missing. Obviously robbery could not have been the motive for the murder. Recovery of M.O.4 has no relevance and has nothing to do with the case. The prosecution has not been able to establish the act, for which M.O.4 had been used by the accused. There are no injuries on the body of Kadeeja, which could be as a result of use of M.O.4 by the accused. Crl.A.631/2006. 10 Learned counsel complains that the finding of the court below is based on conjunctures and surmises and not on legal evidence. At any rate, according to learned counsel the prosecution had failed to establish the case beyond reasonable doubt and therefore the appellant is entitled to an acquittal. 11. Learned Public Prosecutor on the other hand contended that the court below has meticulously considered the evidence on record and the contentions raised by the appellant had no basis. There is clinching evidence to show that the appellant was a habitual thief and because of his habits he had to leave his native place. He came back a day before the incident and was seen near the house of Kadeeja under suspicious circumstances. There is convincing evidence to show that it was the appellant, who had committed the gruesome act. The finding of the court below is justified by the evidence regarding the recovery of M.Os. 3, 4 and 16. Possession of M.O.3 by the appellant recent to the murder leads to the irresistible conclusion that it was the accused, who was Crl.A.631/2006. 11 responsible for the death of late Kadeeja. 12. Before going into the rival contentions, it may be useful to note that the case is built on circumstantial evidence. The principle appears to be well settled that when the prosecution relies on circumstantial evidence, it must prove the circumstances beyond reasonable doubt and the circumstances so proved should lead to the irresistible conclusion that it was the accused and the accused alone, who had done the objectionable act. There is a plethora of decisions on this aspect. It is unnecessary to refer all of them. The law has been laid down in the decision reported in Chattar Singh v. State of Haryana (AIR 2009 SC 378)., the Apex Court 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 Crl.A.631/2006. 12 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 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 the cumulative effect of the 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 Crl.A.631/2006. 13 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 of A.P. And Ors. (AIR 1990 SC 79)l, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none 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.” Crl.A.631/2006. 14 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 connected with the factum probandum; (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 Crl.A.631/2006. 15 accused and in capable of explanation, upon any other reasonable hypothesis that that of his guile, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” 13. The evidence in the case reveals that Kadeeja preferred to stay alone and did not have much contact with her relatives. At any rate, she did not entertain them at all. This would be evident from the testimony of P.W.2, the younger sister of the deceased. However, it is seen that she had a passion for gold ornaments and she used to spend a huge portion of her income for acquiring gold ornaments. The person, who used to buy gold ornaments for Kadeeja is none other than P.W.1. It is seen that the deceased used to attend to the household works of P.W.1 earlier and therefore late Kadeeja was allowed to reside in the property owned by P.W.1. P.W.1 also says that she had put up a house for Kadeeja. Crl.A.631/2006. 16 14. P.W.1 says that the incident occurred on 1.1.2000. She stays with her husband at Varikkoli. On the relevant day, her daughter Subaida, namely P.W.6 along with her children had come to the house. They had come on the previous day. P.W.1 would say that Kadeeja was a dependent of P.W.1's family and she was allowed to reside in the property owned by P.W.1. On the previous day on which Kadeeja was found dead, she had occasion to meet Kadeeja. Going by the evidence of P.W.1, on 1.1.2000 in the morning a child from her neighbourhood came and told her that Kadeeja had been killed. She reached the place and found Kadeeja lying dead in a pool of blood and her body was covered. She also noticed that the ornaments worn in the bottom portion of the ear of Kadeeja and a gold chain were missing. But most of the jewellery usually worn by Kadeeja were found on her body. P.W.1 says that Kadeeja acquired gold ornaments out of her own earnings and she used to buy gold ornaments for her. She also says that the deceased was found lying dead first by P.W.6 her daughter. She Crl.A.631/2006. 17 identified the first accused before court. She would also complain that the first accused was guilty of stealing two of her cows. She also identified M.Os. 1 to 3 as the ornaments belonging to Kadeeja. 15. P.W.2, as already noticed, is the younger sister of the deceased. She too would depose that Kadeeja was a spinster and did not like the company of anybody. She never lent any amount to anybody. But she had a fancy for gold ornaments and she used to buy it using her income. She too identified M.Os. 1 to 3. 16. P.W.6, as already noticed, is the daughter of P.W.1 and the sister of P.W.5. She had occasion to see Kadeeja lying dead at about 7.30 a.m. on 1.1.2000. At the relevant time, she had come to her parental house on the previous day. She had met Kadeeja on the previous day of the incident. She would say that previously the deceased used to attend to the household of her house. On the date of the incident, as usual she had gone to Kadeeja to give her food. She knocked at the door. But the door Crl.A.631/2006. 18 did not open. Hearing the knock at the door, a neighbour by name Janu had also come to the place. Janu slowly pushed the door and it opened. Then they found Kadeeja lying dead in a pool of blood with her body covered with a cloth. She says that they found injuries on the lower portion of the ears of Kadeeja. She identified M.Os. 1 to 3. 17. P.W.10 is a person who had purchased M.O.3 from the first accused. He would say that the first accused is familiar to him. He runs Navaratna Jewellery at Kasaragode. He bought M.O.3 from the first accused. His evidence shows that he purchased the same because of its antique value and had kept it in his shop for sale. According to him, it weighed 2.440 grms. Later the first accused was brought to his shop by the police and asked for the article said to have been sold by the first accused. He showed M.O.3 to the police and they seized the same. Crl.A.631/2006. 19 18. P.W.18 is the gold smith, who weighed M.O.3. P.W.34 is the investigating officer, who claims to have recovered M.O.3 based on the confession statement as per Ext.P5 mahazar. 19. It was noticed earlier that the prosecution case was that the gold ornament worn by Kadeeja around her neck was missing. According to the prosecution, the first accused managed to sell the ornament through the second accused to P.W.12. The evidence of P.W.12 shows that he knew the second accused for a long time. He says that he had seen the first accused on 1.1.2000 and they approached him with a gold ornament. P.W.12 is engaged in money lending business. P.W.12 agreed to purchase the gold ornament brought by the second accused. P.W.12 says that he bought the ornaments and gave money to the second accused. Thereafter he entrusted the gold ornaments to P.W.13 to make two rings for him and he did the same. He had also pledged the rings in a Co-operative Bank for the loan availed by him. According to him two or three years later police had come to his Crl.A.631/2006. 20 place and asked him to hand over the gold ornaments, which he purchased from the second accused. He gave the details regarding the ornaments and he identified M.O.16 as the ring, which he had got made by P.W.13. 20. P.W.34 is the investigating officer, who had made the relevant recoveries. He speaks in detail regarding the various recoveries made by him including M.O.3. 21. It is important to notice that the court below was not impressed by the recovery of M.O.16 and did not chose to rest its conclusion on that basis. In fact that recovery was not accepted at all. P.W.12 stated that he had bought the gold ornaments from the second accused, which the prosecution alleges was robed by the first accused and handed over to the second accused for sale. There was no description of that ornament said to have been worn by Kadeeja and there was nothing to show that the rings were made out of the said ornament. Crl.A.631/2006. 21 22. Whatever that be, P.W.12 says that he converted the ornament he purchased from the second accused into rings and later he pledged them in the Co-operative Bank. They were identified as M.O.16. There is nothing to show that the ornament, which P.W.12 claims to have bought from the second accused is the ornament which belonged to Kadeeja. The prosecution is bound to prove that the rings were made out of the said gold ornament, which the first accused had removed from the neck of the deceased lady and handed over to the second accused for sale. That is not a matter for presumption. The court below has rightly discarded the said evidence. 23. The investigating officer had made considerable fuss about the recovery of M.O.4 chopper. One is not able to understand the purpose for which the recovery was made. Prosecution had no case that any of the injuries found on the body of Kadeeja was inflicted by using M.O.4 chopper. Crl.A.631/2006. 22 24. The evidence of P.W.23, the Forensic Surgeon shows that Kadeeja had died due to strangulation and smothering. Several injuries were noticed on the body of Kadeeja and no injury is co-related to the use of M.O.4 weapon. 25. The items of evidence relied