Chandra Lal @ Lalu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939 **CRL.A.No. 171 of 2014** AGAINST THE JUDGMENT IN SC.NO.470/2007 ON THE FILE OF T HE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK COURT II), THIRUVANANTHAPURAM, DATED 26.10.2009. CRIME NO. 677/2005 OF VELLARADA POLICE STATION, THIRUVANANDAPURAM ## APPELLANT/ACCUSED: CHANDRA LAL @ LALU, C.NO.4432, CENTRAL PRISON, POOJAPPURA.P.O., THIRUVANANTHAPURAM. BY ADV.JIJO JOSEPH (STATE BRIEF) ## RESPONDENT: COMPLAINANT: STATE OF KERALA, REPRESENTED BY D.G.P., HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 9-03-2018, THE COURT ON 19-03-2018 DELIVERED THE FOLLOWING: ## **A.M.Shaffique & P. Somarajan, JJ.** **---------------------------------------------------Crl. Appeal No.171 of 2014 ---------------------------------------------------Dated this the 19[th] day of March, 2018** ## **JUDGMENT** ## **P. Somarajan, J.** A young boy aged 19 years had committed murder of his own mother in the course of commission of theft of her gold ornaments during the absence of his father and sister at their residential house and had dug a pit inside the house so as to conceal the deadbody, is the version of prosecution in S.C.No.470 of 2007 on the file of the Court of the Additional District & Sessions Judge (Fast Track Court II), Thiruvananthapuram, which has ended in his conviction for the offence punishable under Ss.302 and 392 IPC. This appeal is filed by the accused against the said conviction and the order of sentence passed thereunder. 2. The alleged incident happened on 13.12.2005 within the secrecy of their dwelling house. The other inmates in the house are PW1 - father of the accused, PW2 - his sister and the victim his mother. PW1 and PW2 left the house in and around 7.30 a.m. and PW2 came back by 1.30 p.m. Thereon she had seen the deadbody ## **Crl.Appeal No. 171 of 2014** :: 2 :: of her mother lying within the house after receiving head injuries. At the time when PW2 left the house, her mother (the victim) and her brother (the accused) alone were there in the house. PW1 father of the accused had given support to the oral evidence tendered by PW2 sister and revealed that the accused is of the habit of committing theft and robbery and that on the previous day he had demanded the gold ornaments worn by his mother which was rightly refused. 3. The incriminating circumstances relied on by the prosecution are: (1) The recovery of a bloodstained weapon, a crowbar, under Section 27 of the Evidence Act which according to the prosecution is the weapon used for the commission of offence. (2) The abovesaid weapon was found to be stained by human blood of B group, which is the blood group of the victim. (3) Recovery of MO6, a pair of gold stud belonged to the victim, under Section 27 of the Evidence Act based on the disclosure statement alleged to have been given by the accused while under custody. (4) Recovery of MO5 gold chain based on the disclosure statement of accused under Section 27 of the Evidence Act. (5) The accused and the victim alone were there in the house at the time of commission of ## **Crl.Appeal No. 171 of 2014** :: 3 :: offence and the alleged incident was happened within the secrecy of their dwelling house. No satisfactory explanation was forwarded by the accused as to how the victim sustained injuries resulting in her death. (6) The accused dug a pit in his house in order to conceal the deadbody and no explanation was forwarded by him for what purpose he had dug the pit. (7) The clothes belongs to the accused found to be stained by human blood. 4. Postmortem examination on the body of the deceased was conducted by PW12 by drawing Ext.P9 postmortem certificate. The postmortem finding and the antemortem injuries are as follows: ## “INJURIES (ANTEMORTEM): 1. Lacerated wound 9.5x2.5x0.5 cm obliquely placed on left side of forehead, its lower inner end 4 cm above root of nose in the middle. 2. Lacerated wound 7x1x0.5 cm horizontal on left side of head 5.5 cm above top of ear. 3. Lacerated wound 5x1x0.5 cm horizontal on left side of head 2 cm above top of ear. Left side of frontal, left parietal and temporal bones were fractured and fragmented over an area 14x5 cm with depression of fragment underneath injury Nos.(2) and (3). Fissured fractures were seen extending to right parietal bone with suture separation ## **Crl.Appeal No. 171 of 2014** :: 4 :: of coronal suture on right side (8 cm long) and to right side of frontal bone (4cm long). Anterior cranial and middle cranial fossae on right side showed fracture fragmentation. 4. Lacerated wound 6x1x0.5 cm oblique on left side of top of head with its upper inner end 3 cm to left of midline and 10 cm above the top of ear. The bone underneath showed a fissured fracture 3.5 cm in length. Brain showed bilateral subdural and subarachnoid bleed, laceration on under surface of both frontal lobes, (6x5x0.8 cm), contusion on the outer and under aspects of right temporal lobe (8x4x0.3 cm, 7x5x0.5 cm respectively) and signs of raised intracranial tension. 5. Abrasion 7x3 cm on the outer aspect of right elbow.” ## Postmortem finding: ## “Death was due to Head Injury.” The Doctor who conducted autopsy had deposed with respect to the cause of death in tune with Ext.P9 postmortem certificate and nothing was brought out against the medical opinion given by the Doctor. 5. The weapon used for the commission of offence is a ## **Crl.Appeal No. 171 of 2014** :: 5 :: crowbar which was, on chemical analysis, found to be stained by the blood group of the victim - B group - and it was recovered based on the disclosure statement alleged to have been given by the accused while under custody and the recovery was proved through PW2. The crowbar was recovered from a concealed place and hence squarely come under S.27 of the Evidence Act and hence an incriminating circumstance pointing towards the guilt of the accused. 6. The next incriminating circumstance brought up by the prosecution is the recovery of MO6, a pair of gold stud belonged to the victim, which was identified by both PW1 husband and PW2 daughter as that of the victim. Ext.P6 is the recovery mahazar and Ext.P6(a) is the disclosure statement. Recovery of MO6, a pair of gold stud, was proved through PW14. PW15 is the appraiser, PW8 Viswanathan Nair, Bank Manager, had identified the accused as the person who pledged MO6 gold studs. 7. Another recovery was also brought up by the prosecution. MO5 gold chain having 2 sovereigns, pledged in the Mini Muthoot Bank was recovered under Ext.P4 mahazar on the basis of Ext.P4(a) disclosure statement alleged to have been given by the ## **Crl.Appeal No. 171 of 2014** :: 6 :: accused. PW7 is the Manager of Mini Muthoot Bank. Recovery of MO5 was proved through PW7 and PW9, the attestor to Ext.P4 mahazar. PW13 is the appraiser. The fact that MO5 gold chain was pledged by the accused on 13.12.2005, i.e. on the date of incident, is also relevant. The recoveries of the gold ornaments belonged to the victim would squarely come under Sec.27 of the Evidence Act and hence relevant. Though the learned counsel for the appellant tried to advance a case that the gold ornaments were given to the accused by his mother and that he had no connection with the alleged incident, no such case was advanced by the accused during his examination under Section 313 Cr.P.C. and no explanation was forwarded as to how he came into possession of the articles of theft belonged to the victim, identified as MO5 and MO6. The question of presumptive evidence for the charges of murder when the accused was found in unexplained possession of the articles of theft/robbery, forming part of the same transaction under which the victim was murdered, was considered by a Division Bench of this Court (in which both of us are members) in **Manikandan v. State of Kerala (2018 (1) KLT SN 41 (C.No.56))** and following the decisions drawn by a three Judge Bench of the Apex Court in **Baiju v. State of M.P.** ## **Crl.Appeal No. 171 of 2014** :: 7 :: **(1978 KHC 490 = 1978(1) SCC 588 = AIR 1978 SC 522) and George v. State of Kerala (2002) 4 SCC 475),** had considered the question whether the unexplained possession of an article of robbery/theft would amount to presumptive evidence to the charge of murder besides the charge of theft/robbery and whether there is any conflict between the legal dictum laid down in these two decisions, and after referring various decisions of the Apex Court as well as various High Courts in **Wasim Khan v. The State of Uttar Pradesh (1956 SCR 191 = AIR 1956 SC 400), Alisher v. State of Uttar Pradesh (1974 (4) SCC 254 = AIR 1974 SC 1830), Emperor v. Chintamani Sabu (AIR 1930 Cal. 379), In re Guli Venkataswamy (AIR 1950 Mad. 309), Ramprashad Makundram Rajput v. The Crown (AIR 1949 Nag.277), State v. Shankar Prasad (AIR 1952 All. 776), Ravunni Nair v. State of Kerala (1957 KLT 255), Kuttappan v. State of Kerala (1960 KLT 829), Tulsiran Renu v. The State (AIR 1954 SC 1), Ram Bharosey v. State of Uttar Pradesh (1954 KHC 551 = AIR 1954 SC 704), Sanwat Khan v. State of Rajasthan (AIR 1956 SC 54), Sunderlal v. The State of Madhya Pradesh (AIR 1954 SC 28) and State of Kerala v. Jayanandan @ Jayan (2017 KHC 66),** it was held as follows: ## **Crl.Appeal No. 171 of 2014** :: 8 :: _“It was argued that the legal position settled in_ _**Baiju v. State of M.P.** (supra) and other decisions referred above that unexplained possession of stolen property of the victim by the accused would be a presumptive evidence of the charges of murder besides robbery had been given a go by by the larger Bench decision (three Bench) rendered in_ _**George v. State of Kerala** (supra). In fact, there is no conflict in the legal position settled in_ _**Baiju v State of M.P.** (supra) and other decisions referred in the earlier paragraphs with the larger Bench decision (three Judge Bench) rendered in_ _**George v. State of Kerala** (supra). The criteria for the application of the principles laid down in George's case and in Baiju's case is resting on the question whether the murder and robbery alleged would form part of same transaction and when there is evidence to show or to presume that both the commission of murder and robbery form part of same transaction, presumptive evidence of charges of murder can be applied besides robbery. But, when there is evidence to show that the commission of murder and robbery will not form part of the same transaction or when there is possibility of having other hypothesis for the commission of murder rather than what is attached with the commission of robbery/theft, there cannot be any application of presumptive evidence for the charges of murder. The factual scenario involved in Baiju's case (supra) would come under the purview of_ ## **Crl.Appeal No. 171 of 2014** :: 9 :: _former one and in George's case (supra) would come under the purview of latter one. The test is to find out whether the unexplained possession of the articles of theft/robbery would form part of same transaction in which the offence of murder was committed. Then only the presumptive evidence of unexplained possession of the articles of theft/robbery can be extended to the charges of murder. It is well within the power of the court to test whether the commission of murder and robbery would form part of the same transaction, both by direct evidence and presumptive evidence, and in the case of latter one, the test is to find out the existence of any other hypothesis for the commission of murder rather than what is available under the presumptive evidence._ ” 8. The possession of articles of theft/robbery, hence, in the absence of proper explanation or when there is false explanation, would be presumptive evidence of both the commission of offence of murder and robbery, if the same forms part of the same transaction. The evidence adduced would show that both the offence would form part of same transaction. The recovery of gold ornaments at the instance of the accused would satisfy the ingredient which constitute the offence under Section 392 IPC, being presumptive evidence of offence of robbery and murder. ## **Crl.Appeal No. 171 of 2014** :: 10 :: 9. The double mundu and shirt of the accused were also found to be stained by blood of B group, the blood group of the victim. But, the same cannot be used against the accused since he is a resident of the house wherein the alleged incident happened and the abovesaid dresses were found lying within the house. There may be other possibilities or probabilities of having blood stain over the clothes kept in the house. 10. Further, the accused had dug a pit in the house so as to conceal the deadbody. But, there is no evidence to show that it was done by the accused. But the circumstance that he alone was present in the house at the time of alleged commission of offence and that he had no explanation as to who had dug the pit inside the house while he was in the house is presumptive of the same being done by him. 11. Further, the fact that the alleged incident happened within the secrecy of their dwelling house wherein the victim and the accused alone were there at the time of commission of the alleged incident would cast a duty on the accused to explain how the alleged incident happened, under S.106 of the Evidence Act. ## **Crl.Appeal No. 171 of 2014** :: 11 :: 12. Thus the circumstances brought out by the prosecution are complete and consistent with the guilt of accused and no other hypothesis inconsistent with the guilt of accused is possible. The circumstances are complete, unerringly pointing towards the guilt of accused and hence, we cannot find any reason for interference with the finding of guilt of accused under Ss.302 and 392 IPC and conviction thereunder as there is an intentional murder with full knowledge which would satisfy both the first and second limbs of S.300 IPC. The theft committed and the stolen articles recovered (MO5 and MO6) under the given circumstances, being part of the same transaction resulted in the death of the victim in the hands of accused would satisfy the ingredient which constitute the offence of robbery as defined under Section 390 IPC and hence, the finding of guilt of accused for the offence punishable under Section 392 IPC does not call for any interference by this Court. 13. The sentence awarded for the offence under Section 302 IPC being a lesser one does not call for any interference by this Court. The sentence awarded for the offence under Section 392 IPC strikes a balance between the mitigating and aggravating ## **Crl.Appeal No. 171 of 2014** :: 12 :: circumstances and hence deserves no interference by this Court. Hence, the appeal deserves only dismissal and we do so. In the result, the appeal is dismissed. **Sd/A.M. Shaffique Judge** **Sd/P. Somarajan Judge** ahz/