The plight of migrant workers is an endless, sad story: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A TUESDAY THE 07TH DAY OF SEPTEMBER 2021 16TH BHADRA 1943 CRL.A.NO.539 OF 2015 AGAINST THE JUDGMENT IN S.C.NO.76 OF 2013 DATED 28.03.2015 OF THE COURT OF THE ADDITIONAL SESIONS JUDGE II N.PARAVUR C.P.NO.40 2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I ALUVA CRIME NO.263 2011 OF ALUVA WEST POLICE STATION] PRADEEP SONAR S O.MANEEDAR SONAR KACHEMARY KODVALY POLICE STATION LIMIT KUCH BIHAR WEST BENGAL STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682031 SMT.AMBIKA DEVI. S. SPECIAL GOVERNMENT PLEADER ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF WOMEN & CHILDREN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.08.2021 THE COURT ON 07.09.2021 DELIVERED THE FOLLOWING 2 K.Vinod Chandran & Ziyad Rahman A.A. JJ Crl.Appeal No.5315 Dated this the 07th September 2021 Vinod Chandran J Far from their homes and family the plight of migrant workers is an endless narrative often meaningless in form and sad in content. The prosecution alleges the murder of a mother and child by the former s live in partner all of them migrated from the east of India to its southern tip for eking out a mere subsistence. The prosecution alleges that sometime in the night of 04.05.2011 the accused murdered his live in partner and her child presumably for the money stashed away by the murdered woman. The accused fled to his home State from where the police arrested him 2. Sri. Renjith B. Marar appears for the appellant and Smt.S.Ambika Devi for the State 3. The learned Counsel for the appellant points out that there is no chain of circumstances connecting the accused with the crime. There is no motive established and the accused had a valid explanation for being away from his workplace. Reliance is placed on S.K. Yusuf v. State of 3 West Bengal 11 SCC 754 ] to argue that the mere fact of the accused having absconded does not lead to a necessary conclusion of a guilty mind and also challenge the last seen theory propounded. Subramanian v. State of Kerala is also relied on for the very same purpose. The fact that the grandmother of the accused was ill and he had taken a loan from PW1 coupled with the enquiry to PW8 about the time it takes to reach Thrissur and Shornur explains his absence which is sufficient under Section 106 of the Evidence Act. Reading Ext.P2 inquest report and PW1 s deposition juxtaposed with Ext.P9 sketch it is pointed out that the shed adjacent to the unit of PW1 was open and accessible to anybody. PW1 was not present on the fateful day and there is sufficient indication in the evidence of PW8 that the accused was planning to leave his workplace. The mother and child in all probability would have been attacked by unknown assailants who were aware of the absence of both PW1 and the accused on the crucial day 4. The last seen theory cannot be relied upon without establishing that death was proximate to the time when they were last seen together. The death is said to have occurred sometime on the night of 04.05.2011 and despite the unit being operational on the next day the 4 absence of mother and son was not enquired into. The evidence is that the crime was detected only at 5 p.m. and an FIR was registered at 6.00 p.m. It is also elicited from the witnesses that the police had inspected the site after which the FIS was recorded at the Police Station. This casts a suspicion regarding the intimation of the crime There is no motive preparation and previous or subsequent conduct which connects the accused with the crime as in Section 8 of the Indian Evidence Act 1872. As far as Section 27 is concerned the exact words of the accused have not been recorded which has been held to be mandatory by a Division Bench of this Court in Sanjay Oraon v. State of Kerala KLT 30]. If there is absence of proof of disclosure and concealment by the accused it is fatal to recovery under Section 27 as held in Bahadul vs. State of Orissa 4 SCC 346]. Pohalya Motya Valvi vs State of Maharashtra 1 SCC 530] was relied on to contend that authorship of concealment has to be clearly stated in the confession made by the accused. It is argued that the inquest report specifically the description of the body of the woman raises a reasonable inference of sexual molestation. The body was completely nude and wrapped only around the hip with a saree. Though there is nothing detected on chemical analysis to support such an 5 inference the doctor has categorically stated that the distance of time from death to the post mortem would reduce the chances of detection of any remnants pointing to sexual molestation. Subhash Chand v. State of Rajasthan 1 SCC 702] is relied on to urge that suspicion however strong cannot take the place of hard evidence and the circumstances should be individually proved which should collectively forge an unbroken chain incriminating the accused beyond all reasonable doubt 5. The learned Special Government Pleader points out that the deceased and the accused were staying together as deposed by several witnesses. The accused in his Section 313 questioning denied that fact which falsity itself raises a presumption against the accused. Knowingly a false statement was made to escape from the clutches of law and this is an additional circumstance as has been held in Surajdeo Mahto v. State of Bihar in translating the confession made by the accused regarding the concealment of MO1 and MO2. He identified MO1 and MO2 but stated before Court that it was the police who recovered the Material Objects. PW13 is the Village Officer who prepared Ext.P9 sketch of the scene of occurrence 10. PW10 is the relative of PW1 who was also employed in his unit. The employees of the unit were himself accused deceased and PW2 four in number. He corroborated the evidence of PW1 and stated that the accused was staying with the deceased and their child in the shed adjacent to the tile unit. On 04.05.2011 he saw the accused deceased and child at about 5.30 p.m. when he left the unit after work. The next day he came at 8.00 a.m and PW2 was standing outside. The accused deceased and their child were not seen anywhere. The door leading to the shed was closed. He went inside the unit and looked into the shed obviously over the incomplete wall. He saw some 10 utensils and dress inside the shed but no sign of the residents. He called PW1 to inform him about the absence of the resident employees. PW2 and PW10 commenced and continued the work in the unit and at about 5.00 p.m PW1 came back. PW1 had also inquired in the meanwhile about the residents in the shed. After PW1 came he went into the shed over the half wall inside the unit. The door was locked from the inside which was opened by him. PW2 and PW10 entered the shed and saw a hand under the plywood which was pointed out to PW1. PW1 lifted the plywood and they saw the dead bodies lying to the southern end of the building. There was a pool of blood on the floor. PW1 kept the plywood back and informed the police. He categorically stated that the accused was not present there at the time PW14 was examined to further establish the presence of the accused on the previous day. PW14 runs a chicken centre and the accused with a friend purchased chicken from his shop at 7.00 p.m. He also said that they wanted half each which division was made by him. 11. PW11 is a friend of PW1 and a resident of the same locality. He is slightly conversant with Hindi and Bengali. He translated the confession statement of the accused and was present when there was the recovery of MO1 and MO2 which according to him was taken out by the 11 police. PW15 is a Civil Police Officer who accompanied PW17 S.I. of Police to West Bengal. The police team which went to West Bengal comprised of PW15 PW17 and a driver They went by flight to Calcutta and from there went directly to Cooch Behar Railway Station after reporting before Kotwali Police Station. At the Railway Station they searched for the accused from among the persons alighting there. On the 8th they were informed of the accused having reached his village. The brother of the accused was summoned to the Police Station who informed them that the accused has a family a wife and children residing in his village. On the 9th at around 10.25 p.m. the accused was located in the house of a friend Mittu. The accused attempted to flee but was chased and apprehended. He was produced before the jurisdictional Magistrate Court on the 10th and with the aid of a transit warrant brought to the State of Kerala and produced before the jurisdictional Magistrate within the State. PW17 is the Sub Inspector who registered the FIR and led the Police team to Calcutta. His deposition corroborates PW15 to the hilt. The transit warrant was produced as Ext.P11. The SI confirmed that the accused had a wife and children living in West Bengal Statements were taken from the parents of the deceased PW18 is the I.O 12 12. PW12 is the Doctor who conducted post mortem examination on both the deceased. The post mortem certificate of the murdered woman was marked as Ext.P7 Death was opined to be due to incised injuries sustained to the face and the left side of the chest specifically injuries 3 4 5 and 7. Injury No.7 was possible of being inflicted with MO1. Injuries 3 to 5 could be inflicted with a heavy cutting weapon of appropriate size most likely MO3 axe. Injuries 1 2 and 14 could be inflicted with a blunt weapon which MO1 is. The doctor was re examined on directions of this Court in the appeal. The doctor has specifically spoken of the 15 ante mortem injuries on the body of the woman of which injuries 3 4 5 and 7 are the cause of death which are extracted hereunder “3. Incised wound 7.5x3 cm communicating with oral cavity horizontal on the left side of face its inner end 5.5 cm to the left of mid line and 2 cm above upper lip and back end 3 cm below left ear. Fracture fragmentation of maxillary bone underneath behind the first 4. Incised wound 2x2 cm communicating with oral cavity oblique involving with whole thickness of upper lip just to the left of midline Underneath the left incisor and canine teeth of the upper jaw cut and fragmented 13 5. Incised wound 8x3 cm bone deep oblique on the left side of face its upper inner end at the lower lip just to the left of midline Underneath the central incisors and left lateral incisors cut and fragmented Fracture fragmentation of mandible underneath 7. Incised penetrating wound 6.5x3 cm on the left side of chest its upper blunt end 16 cm to the left of midline and 4 cm below armpit. The wound penetrated the left chest cavity cutting the end rib and first inner coastal space 5.1x1.5 cm after coursing through the muscles of chest wall for a depth of 9 cm punctured the pleura 3x1 cm through which the lung tissue was protruding out. Left chest cavity contained 30 ml of blood. Left lung partly collapsed. The wound was directed backwards and to the right for a depth of 9.5 cm” 13. Ext.P8 is the post mortem report of the three year old child. Death was due to ligature strangulation. Pressure abrasions were found on the neck where the ligature was tied. The ligature recovered from the crime scene was marked as MO4. The death of both the mother and child had occurred approximately 36 to 48 hours before 3.00 p.m. on 06.05.2011. Hence the death occurred between 5.00 p.m. of 04.05.2011 and 3.00 a.m. of 05.05.2011. That the death is a homicide is well 14 established and now we search for the circumstances which according to the prosecution unerringly pin the homicide on the hands of the accused 14. There is no eye witness and the prosecution relies on the circumstances the last seen together theory the flight of the accused the arrest of the accused from his native State recovery under Sec.27 of MO1 and MO2 at the instance of the accused and the deliberate falsehood stated under Sec.313 of the Cr.P.C. We first look at the recovery under Sec.27 of the Evidence Act. Ext.P3 is the mahazar. The translation of the confession statement is recorded in Ext.P3 as translated by PW11. The confession reads as the knife and the wooden stick were put by me near the boulder construction adjacent to the shed in which I am residing . As has been pointed out by the learned Counsel for the appellant there is interpolation in so far as the vernacular word referring to oneself4 SCC 747] held so 24. We are of the view that under Section 313 21 statement if the accused admits that from the evidence of various witnesses four persons sustained severe bullet injuries by the firing by the accused and his associates that admission of guilt in Section 313 statement cannot be brushed aside. This Court in State of Maharashtra v Sukhdev Singh2 SCC 700 held that since no oath is administered to the accused the statement made by the accused under Section 313 CrPC will not be evidence stricto sensu and the accused of course shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313 CrPC. But sub section says that the answers given by the accused in response to his examination under Section 313 CrPC can be taken into consideration in such an inquiry or trial This Court in Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 held that the answers given by the accused under Section 313 examination can be used for proving his guilt as much as the evidence given by the prosecution witness. In Narain Singh v. State of Punjab10 SCC 236 held that:9 SCC 15 and Bishnu Prasad Sinha v. State of Assam11 SCC 205] held so: “This Court in State of Maharashtra v. Suresh1 SCC 471 held that when the attention of the accused is drawn to such circumstances that inculpate him in relation to the commission of the crime and he fails to offer an appropriate explanation or gives a false answer with respect to the same the said act may be counted as providing a missing link for completing the chain of circumstances."(sic para 51). The absence of an explanation or a false explanation has been held to be an additional circumstance in the chain of circumstances in Shivaji Chintappa Patil v. State of Maharashtra 5 SCC 626] Satpal vs. State of 6 SCC 610] & Prahlad v. State of Rajasthan 14 SCC 438 :1 SCC381]. We extract 23 from Satpal supra) with underlining supplied by us for 6. We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused and the recovery of the corpse being in very close proximity of time the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation or furnishes a wrong explanation absconds motive is established and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused incompatible with any possible hypothesis of innocence conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine 24. The last seen theory as propounded by the prosecution according to us is that compelling circumstance against the accused. On the night of the previous day the accused was seen with the boy and the woman. They were residing together in the shed which was 24 found abandoned in the morning. Only when a detailed search was conducted the bodies of the woman and the child were recovered. The accused who was residing along with the woman and child was conspicuously absent when the dead bodies were recovered. On the same day early morning i.e. immediately after the probable time of the commission of the crime the accused was found boarding a train obviously fleeing from the locality. He was then arrested from West Bengal his native place. The evidence of the police team is that he attempted to flee but they chased him and caught him. He was brought back to Kerala on a transit warrant produced as Ext.P11 issued by the Chief Judicial Magistrate Cooch Behar. The seizure of the weapons MO1 to MO3 from inside the shed and from its near vicinity is also another circumstance. Added to this is the perceptibly false reply in Sec.313 that the accused was residing alone while the overwhelming evidence is of the three residing together in the shed adjoining the Unit S.K. Yusuf was a case in which the accused was found in close proximity of the area where the dead body was buried which was held to be not a valid theory of last seen together. The Hon ble Supreme Court also reiterated the position that absconding is not a circumstance when the person is not the author of the crime. In the present case 25 the absconding accused was guilty of flight from the shed in which he was residing with the murdered woman and child just after the death occurred. There are also other circumstances which cumulatively provide an unbroken chain 25. On the night in which the crime was committed only the accused and the deceased were inhabitants of the precincts of the floor tile unit. The accused was living with the deceased woman and the baby boy. We notice the absence of scientific evidence connecting the accused with the crime however the totality of the circumstances require an explanation from the accused as to his whereabouts when the crime was committed with proof of the same. On failure to offer that explanation an additional circumstance pointing to his culpability is made out. The last seen together theory makes it imminently necessary for the accused to give an explanation in the absence of which there is an unbroken chain of circumstances unerringly pointing to the guilt of the accused. His presence with the deceased his flight to his native place at a time proximate to the time of death the lack of an explanation and the false statement in Sec.313 establishes the guilt of the accused. The hypothesis of innocence based on the shed being accessible to any person is far fetched and lacks credence. The plea that he left the locality for 26 reason of his grandmother s illness also fails to impress We hence find the appeal to be devoid of merit and dismiss the same affirming the conviction and sentence awarded by the trial Court Sd K.Vinod Chandran Sd Ziyad Rahman A.A. 

Summary: A Bengal native’s appeal against his conviction for the murder of his live-in spouse, another migrant worker, and her small kid was denied by the Kerala High Court on Tuesday. While upholding his conviction, a Division Bench of Justice K Vinod Chandran and Justice Ziyad Rahman A A stated, “Far from their homes and family, the plight of migrant workers is an endless narrative, often meaningless in form and sad in content. The prosecution alleges the murder of a mother and child by the former’s live-in partner; all of them migrated from the east of India to its southern tip for eking out a mere subsistence.” According to the prosecution, both the convict and the victim, along with her child, had travelled to Kerala from West Bengal to make a living. When the dead bodies were discovered, the accused, who was living with the wife and child, was conspicuously missing. The appellant was represented by Advocate Renjith B.Marar, and the State was represented by Special Government Pleader S. Ambika Devi. The appellant argued that the accused was not linked to the crime by a chain of circumstances. Furthermore, it was claimed that no motivation had been shown and that the accused had a legitimate reason for being absent from work. He was then apprehended in West Bengal and brought back to Kerala to face charges. He allegedly murdered the wife and her kid for the money she had secreted away, according to the prosecution. In his statement under Section 313 of the CrPC, the appellant further denied any association with the victims. Several witnesses, including the convict’s employer and the victim, testified that the two were in a live-in relationship and that he was last seen with the victims on the day of the incident, according to the prosecution. The Court stated in dismissing the appeal, after hearing arguments from both the appellant and the prosecution, that