Chandran @ Vinod Chandran S/O Kunhumadhavi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 CRL.A NO. 576 OF 2023** **AGAINST THE JUDGMENT DATED 30.10.2019 IN SC NO.311 OF 2018 ON THE FILES OF THE SESSIONS COURT, THALASSERY APPELLANT/ACCUSED:** **CHANDRAN @ VINOD CHANDRAN S/O.KUNHUMADHAVI, KAKKAMPARA, NR.SWAMI BHAJANA MADAM, RAMANTHALI AMSOM, THALIPARAMBA, KANNUR DISTRICT., PIN - 670308** **BY ADV V.A.AJIVAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031** **SRI.E.C.BINEESH PP** **THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 18.07.2024, THE COURT ON 06.08.2024 DELIVERED THE FOLLOWING:** Crl.A. No.576 of 2023 -: 2 :- ## P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ. ----------------------------------------------- Crl.Appeal No.576 of 2023 ----------------------------------------------Dated this the 6th day of August, 2024 J U D G M E N T ## P.B.Suresh Kumar, J. The sole accused in S.C.No.311 of 2018 on the files of the Court of the Additional Sessions Judge - III, Thalassery, is the appellant. He stands convicted and sentenced for offences punishable under Sections 302 and 397 of the Indian Penal Code (IPC). 2. The corpse of a middle aged person was found on 25.08.2017 on the railway track near one of the platforms of Payyannur Railway Station. On the basis of the information received from the Station Master of the Railway Station, a case was registered by the Payyannur Police. The investigation in the case revealed that the body was that of one K.C.Sreedharan and that he was murdered by the accused. Final report was accordingly filed in the case against the accused alleging commission of the offences punishable under Sections 302, 397 and 398 IPC. Crl.A. No.576 of 2023 -: 3 :- 3. The accusation in the final report is that on 25.08.2017 at about 1 a.m., while the deceased was sleeping on a bench in one of the platforms of the Payyanur Railway Station with his bag placed below his head, the accused, with a view to commit robbery of the bag of the deceased, committed murder by hitting on the head of the deceased using an iron pipe and committed robbery of the belongings contained in the bag and thereby committed the offences punishable under Sections 302, 397 and 398 IPC. 4. On the accused being committed to trial, the Court of Session framed charges against him under Sections 397 and 302 IPC, to which he pleaded not guilty. Thereupon, the prosecution examined 28 witnesses as PWs 1 to 28 and proved through them 39 documents as Exts.P1 to P39. MOs 1 to 23 are the material objects in the case. When the incriminating circumstances were put to the accused in terms of the provisions contained in Section 313 of the Code, he denied the same. The Court of Session, thereupon, on a consideration of the evidence on record, held that the accused is guilty of the offences for which he is charged, convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- for the offence punishable under Section Crl.A. No.576 of 2023 -: 4 :- 302 IPC and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.50,000/- for the offence punishable under Section 397 IPC. The accused is aggrieved by his conviction and sentence and hence this appeal. 5. Heard the learned counsel for the accused as also the learned Public Prosecutor. 6. There was no direct evidence to prove the alleged occurrence. The prosecution, in the circumstances, attempted to prove the occurrence through circumstantial evidence, and it was on a finding that the circumstances proved by the prosecution would establish the guilt of the accused beyond reasonable doubt that the Court of Session convicted the accused. The point that arises for consideration, therefore, is whether the circumstances proved in the case would establish the guilt of the accused beyond reasonable doubt. 7. In order to consider the point formulated for decision, it is necessary to refer to the relevant evidence in the case. PW1 was the Station Master of the Railway Station at the relevant time. PW1 deposed that at about 6.30 a.m. on 25.08.2017, he received information that a dead body was lying on the railway track, and after ensuring the correctness of Crl.A. No.576 of 2023 -: 5 :- the said information, he informed the matter to the police in terms of Ext.P1 intimation. PW1 also deposed that during the night hours of 24.08.2017, he received information that cash and documents were stolen from a lady who was in the waiting room attached to the Railway Station. PW5 is the person from whom cash and documents were stolen from the waiting room. PW5, at the time of occurrence was working at the District Hospital, Palakkad. PW5 deposed that at about 2.30 a.m. on 25.08.2017, she reached Payyanur Railway Station by train after which, she was taking rest in the waiting room to catch a morning bus to go to her destination. It was stated by PW5 in her deposition that at about 4.30 a.m, she went to the washroom after keeping her bag in the waiting room, and when she returned, the bag was found missing. It was also deposed by PW5 that at the time when she went to the washroom after leaving her bag in the waiting room, there were two persons in the waiting room and when she returned, one among them was also found to be missing. PW5 identified in the dock the accused as the person who was found missing from the waiting room, when she returned from the washroom. PW5 also deposed that she identified the accused as the person who was found missing from the waiting room, in the test identification Crl.A. No.576 of 2023 -: 6 :- parade conducted at Central Prison, Kannur, for the said purpose. 8. PW6 is a sweeper-cum-porter attached to the Payyanur Railway Station through whom PW1 ensured the correctness of the information received by him as regards the presence of the dead body on the railway track. PW6 deposed that when he saw the dead body, it was lying in between platform No.3 and the railway track. PW7 is the nephew of the deceased. PW7 deposed that as the deceased has been deserted by his family, he used to sleep in the houses of his relatives. PW7 also deposed that he met the deceased when the deceased came to his house on 23.08.2017 and he identified MO2 as the bag carried by the deceased then. It was PW7 who identified the body of the deceased as that of his uncle. In cross-examination, it was stated by PW7 that the deceased was an alcoholic and it is on account of the said reason, he was deserted by his family. 9. PW20 was the doctor who conducted the postmortem examination on the body of the deceased. Ext.P17 is the post-mortem certificate. The ante-mortem injuries found on the body of the deceased by PW20 at the time of the postmortem examination was described by PW20 in his evidence Crl.A. No.576 of 2023 -: 7 :- ## thus: “ On dissection, the scalp tissues on the right side and back of head were found contused. There was a depressed comminuted fracture on the right side of skull, 14x5cm, involving the frontal temporal, parietal and occipital bones; one fissured fracture was seen extending from the depressed segment to the right parietal eminence and then horizontally to the left temporal bone; another fissured fracture went up to the right parietal bone, crossed the coronal suture and terminated at the front of skull by coursing through the centre of frontal bone. Internally, a fissured fracture extended through the floor of middle cranial fossa on the right side, to terminate in the pituitary fossa. Dura was irregularly torn. Brain showed bilateral subdural, subarachnoid and intraventricular bleeding, laceration of the right temporal cortex and features of increased intracranial tension. Fluid blood was seen inside the air passages and oesophagus. Lungs showed features of aspiration of blood.” The opinion of PW20 as to the cause of death was that the victim died of blunt violence sustained in his head. PW20 also deposed that the injuries sustained to the head of the deceased are sufficient in the ordinary course of nature to cause death. PW20 further deposed that MO1 iron pipe can cause the injuries noted by him on the body of the deceased. It was also deposed by PW20 that the time of death could be between 5.15 p.m. on 24.08.2017 and 6.15 a.m. on 25.08.2017. In cross-examination, PW20 deposed that no external injuries were found on the body of the deceased at time of post- Crl.A. No.576 of 2023 -: 8 :- mortem examination and the injury was internal. In reexamination, PW20 clarified that the injuries sustained by the deceased were not the injuries that would be caused due to fall. 10. PW28 was the police officer who conducted the investigation in the case. PW28 deposed that the accused was arrested on 15.09.2017 and during the interrogation conducted thereupon, the accused disclosed to PW28 that he has kept an iron pipe in a thicket near the Railway Station and when the accused was taken to that place as guided by him, he took out MO1 iron pipe from the said thicket near the fourth railway track accessible from the third platform of the Railway Station. It was deposed by PW28 that MO1 iron pipe was seized by him as per Ext.P7 mazahar. Ext.P31 is the disclosure statement which led to the seizure of MO1 iron pipe. Similarly, it was deposed by PW28 that the accused informed him during interrogation that he threw a bag in a bush and when the accused was taken to that place as guided by him, he took out from the bush near the first platform of the Railway Station, MO2 bag and the same was seized as per Ext.P8 mahazar. Ext.P32 is the disclosure statement which led to the seizure of MO2 bag. It was also deposed by PW28 that MO3 and MO23 t- Crl.A. No.576 of 2023 -: 9 :- shirts, MO17 mirror, MO18 toothbrush, MO19 toothpaste, MO20 washing soap, MO21 washing powder, MO22 jeans and Ext.P33 Aadhar card of the deceased were found in MO2 bag. 11. The impugned judgment reveals that the Court of Session came to the conclusion that the prosecution has established the guilt of the accused based on the evidence discussed above. It is seen that although PW28 seized the bloodstained clothes allegedly worn by the accused at the time of occurrence based on the information furnished by the accused, no reliance was placed by the Court of Session on the said material since there was no satisfactory evidence to show that the bloodstains contained in the said clothes which belong to Group 'O', has any connection with the deceased. The circumstances relied on by the Court of Session to hold that the prosecution has established the guilt of the accused are the following: (i) that the death occurred between 5.15 p.m. on 24.08.2017 and 6.15 a.m. on 25.08.2017; (ii) that the death was a homicide; (iii) that the body of the deceased was found on the railway track near one of the platforms of the Railway Station; (iv) that the accused was very much present in the premises of the Railway Station on the night of Crl.A. No.576 of 2023 -: 10 :- ## 24.08.2017; (v) that the internal injuries sustained by the deceased which led to his death is one that could be produced by a hit using MO1 iron pipe; (vi) that the accused knew the place where MO1 iron pipe was kept and he has not offered any explanation when questioned under Section 313 of the Code as to his source of information regarding the place where MO1 was kept; (vii) that the accused knew the place where MO2 bag and other belongings of the deceased were kept; and (viii) that the accused has not offered any explanation when questioned under Section 313 of the Code as to his source of information regarding the place where MO2 bag and other belongings of the deceased were kept. 12. It is trite that the following requirements must be fulfilled in order to hold that an accused, in a case based on circumstantial evidence, is guilty of the offence/s for which he is charged: (1) that the circumstances from which the conclusion of guilt is drawn are fully established, (2) that the facts so established are consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) that the circumstances are of a conclusive nature and tendency, Crl.A. No.576 of 2023 -: 11 :- (4) that they should exclude every possible hypothesis except that the accused is guilty, and (5) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. Before proceeding to examine whether the circumstances proved in the case would establish the charge framed against the accused, it is necessary to take note of a few relevant facts. As noted, one of the circumstances relied on by the Court of Session to hold that the accused is guilty of the offences alleged against him is that the death of the victim was a homicide and a finding to that effect was rendered by the Court of Session mainly based on the evidence tendered by PW20, the doctor who conducted the post-mortem examination. Even though the charge framed against the accused is that the accused hit on the head of the deceased with an iron pipe while he was sleeping on a bench between platforms 2 and 3 of the Railway Station, his body was found on the railway track in between the platform and one of the rails. If as a matter of fact, the deceased was murdered by the accused by hitting on his head with MO1 iron pipe, while he was sleeping on a bench in the Railway Station, there is no explanation from the Crl.A. No.576 of 2023 -: 12 :- prosecution as to how then, the body of the deceased happened to be found on the railway track. Inasmuch as the body of the deceased was found in between the railway track and the platform, the deceased must have either been pushed down by someone onto the railway track or he would have fallen down onto the railway track himself while walking along the side of the platform. The prosecution has no case that after hitting the deceased with MO1 iron pipe on his head, the accused pushed the deceased onto the railway track. The prosecution also does not offer any explanation as regards how then, the body of the deceased happened to be seen in between one of the rails and the platform. Even though PW20 affirmed in re-examination that the injuries sustained by the deceased were not injuries that would be caused due to a mere fall, in the absence of any evidence to show how the body of the deceased happened to be seen in between one of the rails and the platform, according to us, the possibility of a fall onto the railway track while the deceased was walking along the platform, cannot be ruled out. As noted, the opinion given by PW20 is that the internal injuries suffered by the deceased could be produced with MO1 iron pipe. If that be so, according to us, the said injuries could be produced on account of the fall Crl.A. No.576 of 2023 -: 13 :- by the head of the deceased hitting on one of the rails or on any other hard object. It is relevant in this context to note that the materials on record would show that the body of the deceased was found lying on the railway track in such a manner that the right side as also back of his head was touching one of the rails and the granite aggregates placed on the sides of the rails. It was deposed by PW20 that on dissection, the scalp tissues on the right side and back of head were found contused and there was a depressed comminuted fracture on the right side of the skull, involving the frontal temporal, parietal and occipital bones. Even though PW20 ruled out the possibility of sustaining the injuries as noticed owing to a mere fall, it is seen that the opinion of PW20 was not sought on the question whether the injuries referred to above would have occurred if the fall was in such a manner that the head of the deceased hit on one of the rails. Inasmuch as the head of the deceased was found touching one of the rails of the railway track, the possibility of a fall in such a manner that his head hit on one of the rails cannot be ruled out. We are thinking of this possibility since there were no external injuries on the body of the deceased which would be usual in a case where one hits on the head of another using an iron pipe. We have, therefore, a Crl.A. No.576 of 2023 -: 14 :- doubt in our mind as to the manner in which the occurrence took place. On the facts of this case, there should have certainly been an investigation as to how the body of the deceased happened to be found on the railway track, if the occurrence was as alleged by the prosecution. In the absence of any explanation from the prosecution as to how the body of the deceased happened to be found on the railway track, and in the absence of any opinion from PW20 as to whether the injuries sustained by the deceased would have been possible had this been a case where the accused fell onto the track in such a manner that his head hit on one of the rails, we have a doubt as to whether this is a case of homicide. 13. Be that as it may, presumption (a) to Section 114 of the Indian Evidence Act enables the court to presume that a man, who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. In the case on hand, the personal belongings of the deceased were recovered based on the information furnished by the accused and as noticed, the accused has not offered any explanation as to the source of the said information concerning the place where MO2 bag and other personal belongings of the deceased Crl.A. No.576 of 2023 -: 15 :- were kept. In other words, the accused has not accounted for his possession of the belongings of the deceased. Inasmuch as the personal belongings of deceased were recovered from the possession of the accused and inasmuch as he has not offered any explanation as to how the said articles came to his possession, in the light of the provision contained in Section 114 of the Indian Evidence Act, on the facts of this case, it can be safely concluded that the personal belongings of the deceased were dishonestly removed by the accused. 14. But, the larger question is whether it can be concluded that it was the accused who caused the death of the victim, for the reason that MO2 bag and the personal belongings of the deceased were recovered from the accused. In Raj Kumar v. State (NCT of Delhi) , (2017) 11 SCC 160, the Apex Court held that even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home, unless there is some evidence to show that the robbery and murder occurred at the same time, i.e., in the course of the same transaction. Even while we hold, applying the presumption under Section 114 of the Indian Evidence Act, that it was the accused who dishonestly removed the personal belongings of the deceased, we are unable to hold Crl.A. No.576 of 2023 -: 16 :- that the victim was murdered by the accused immediately after he dishonestly removed his belongings, for want of convincing evidence to show that the robbery and murder occurred in the course of the same transaction. In other words, with the available materials, it cannot be concluded, conclusively, that the murder took place in the same transaction in which the accused managed to obtain the personal belongings of the deceased, for possibility of the theft taking place before or after the death of the victim cannot be ruled out. If that be so, in the light of the decision of the Apex Court in Raj Kumar , the accused cannot be convicted for the offences punishable under Sections 302 and 392 of IPC. Needless to say, he can be convicted only for the offence punishable under Section 379 IPC with the aid of the presumption under Section 114 of the Indian Evidence Act. 15. If the accused cannot be convicted for offences punishable under Sections 302 and 392 of IPC with the aid of the presumption under Section 114 of the Indian Evidence Act, the question that arises then, would be whether the accused can be convicted for the said offences based on other circumstances established in the case. As already noticed, the remaining circumstances established in the case are only that Crl.A. No.576 of 2023 -: 17 :- the death occurred between 5.15 p.m. on 24.08.2017 and 6.15 a.m. on 25.08.2017; that the accused was very much present in the premises of the Railway Station on the night of 24.08.2017 and that the internal injuries sustained by the deceased could be produced by a hit with MO1 iron pipe which was seized based on the information furnished by the accused. The said circumstances along with the circumstances that the death was a homicide, even assuming it to be so and the circumstances that the personal belongings of the deceased were recovered based on the information furnished by him and that he has not offered any explanation as to the source of the said information concerning the place where MO2 bag and other belongings of the deceased were kept, according to us, do not satisfy the requirements of law as enumerated in paragraph 12 above, as regards the hypothesis of the guilt of the accused, for they would not exclude every possible hypothesis except that the accused is guilty and they would not form a chain of evidence so complete as not to leave any reasonable ground for the conclusion, consistent with the innocence of the accused and would show, in all human probability, that the act must have been done by the accused. We are fortified in this view by the fact that there is nothing to Crl.A. No.576 of 2023 -: 18 :- connect the death of the victim with the theft of his belongings and the case of the prosecution that the death was caused by the assailant with MO1 iron pipe, is only a mere possibility. In the result, the appeal is allowed in part and the conviction of the appellant under Sections 302 and 397 of IPC is set aside. We, however, find that the appellant is guilty of the offence punishable under Section 379 IPC and sentence him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- and in default, to undergo further imprisonment for a period of 3 months. Sd/- P.B.SURESH KUMAR, JUDGE. Sd/- C.PRATHEEP KUMAR, JUDGE. YKB