Deben Nath 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 P.G. AJITHKUMAR** **WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023/24TH KARTHIKA, 1945** **CRL.APPEAL NO. 574 OF 2021** **AGAINST THE JUDGMENT DATED 02.03.2019 IN SC 88/2016 OF ADDITIONAL SESSIONS COURT-V, KOTTAYAM CP 35/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,VAIKOM (CRIME NO.927/2015 OF VAIKOM POLICE STATION, KOTTAYAM)** ## **APPELLANT/ACCUSED:** **DEBEN NATH AGED 43 YEARS, S/O. LILADHAR NATH, GOHAI CHAPARI VILLAGE, GHILAMARA POLICE STATION, DHAKUA KHANA SUB DIVISION, LAKHIMPUR DISTRICT, ASSAM, PIN - 787053. (PRESENTLY UNDERGOING LIFE IMPRISONMENT AT CENTRAL PRISON (CONVICT NO. 3349), POOJAPPURA, THIRUVANANTHAPURAM, PIN – 695012)** **BY ADVS. M.P.MADHAVANKUTTY K. REMIYA RAMACHANDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** **BY SRI.ALEX M.THOMBRA, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 19.10.2023, THE COURT ON 15.11.2023 DELIVERED THE FOLLOWING:** **2** Crl.Appeal No.574 of 2021 P.B. SURESH KUMAR & P.G. AJITHKUMAR, JJ. ----------------------------------------------------------------Crl.Appeal No.574 of 2021 ----------------------------------------------------------------Dated this the 15[th] day of November, 2023 ## JUDGMENT ## P.G.Ajithkumar, J. The sole accused in S.C.No.88 of 2016 on the files of the Sessions Court, Kottayam filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). The appellant was convicted for the offences under Sections 302, 397 and 201 of the Indian Penal Code, 1860 (IPC). As per the impugned judgment dated 02.03.2019 he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- for the offence under Section 302 of the IPC, to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.50,000/- for the offence under Section 397 of the IPC and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.50,000/- for the offence under Section 201 of the IPC. 2. Sri.Mohandas and the appellant, both hail from Assam, were working as loading and unloading workers at the Godown of Kumarakom Gas Agencies at Madappally. They **3** Crl.Appeal No.574 of 2021 were residing in a room in the same compound. Their room was on the north of the office and godown. Both of them were missing from 17.05.2015 onwards. On 22.05.2015, the dead body of Sri.Mohandas was found in a stream on the western side of the said room. PW1, the Manager of the said gas agency, gave a statement, Ext.P1 to PW23, the Station House Officer of Vaikom Police Station at 10.00 a.m. on 22.05.2015, based on which, crime No. 574 of 2015 was registered and investigation ensued. It was revealed that the appellant was the culprit. On completion of the investigation, the final report was filed before the jurisdictional Magistrate. After committal, the case was made over by the Sessions Court to the Additional Sessions Judge-V, Kottayam for trial. The charge framed against the appellant was duly denied by him. Therefore, the prosecution examined PWs.1 to 27 and produced Exts.P1 to P47 series. MOs.1 to 17 were identified. Thereafter, the appellant was questioned under Section 313(1) (b) of the Code. Apart from denying all the incriminating circumstances that appeared in evidence against him, the appellant made a statement that he left from the gas agency **4** Crl.Appeal No.574 of 2021 for his native place in the evening of 16.05.2015 itself. He further stated that although he was paid his monthly wages, Mohandas was not paid. Mohandas had an altercation with PW1 on that. He did not know whether Mohandas was dead or alive. The room where they were residing was frequented by other employees in the gas agency, including PW1. He saw Mohandas along with PW1 last. He further stated that he did not have any mobile phone and he as well as Mohandas was using the same phone which he left in the room itself. 3. The court below found that the case was not the one where Section 232 of the Code could be invoked. Hence the appellant was asked to enter on his defence. No evidence was let in by him. Exts.D1 and D2 were marked on his side, which are contradictory portions of the statement in the inquest report, and the previous statement of PW5. The court below, after appreciating the evidence and hearing both sides, concluded that the circumstances mooted by the prosecution to establish the guilt of the accused were proved satisfactorily. Accordingly, the appellant was found guilty of the offences. **5** Crl.Appeal No.574 of 2021 4. Heard the learned counsel appearing for the appellant and the learned Senior Public Prosecutor. 5. The appellant assails the findings of the court below on several grounds. It is contended that none of the circumstances relied on by the prosecution has been proved satisfactorily. The time of death is not proved and for that reason, the prosecution cannot urge that the deceased was seen alive last together with the appellant. The case that on the morning of 17.05.2015, PW1 made calls to the deceased and the appellant is falsified for non-examination of the driver Girijan, who claimed to have brought a lorry load of gas cylinders to the gas agency. Although it is alleged that PW1 made calls to the appellant on the early morning, the first call to him by PW1 as per the call data details is after 8.51 a.m., which improbabilises the version of PW1. No reliable evidence to substantiate the allegation that the presence of the mobile phone of the appellant was located at different locations from Aluva to Assam starting from the morning of 17.05.2015 is let in. The so-called recovery effected under Section 27 of the Evidence Act, 1872 apparently is a created one and that does **6** Crl.Appeal No.574 of 2021 not help the prosecution to prove its case. In the light of the inherent infirmities and contradictions, the evidence tendered by PW5 to the effect that the appellant travelled in his autorickshaw on the morning of 17.05.2015 from near the gas agency to Vaikom Railway Station stands totally unreliable. The allegation is that the appellant using MO7 iron plate beat the deceased at least thrice at his head and face, but the said weapon does not have any blood stain, which further improbabilises the case of the prosecution. Citing those reasons and also the contradictions in the oral testimonies of various witnesses, the appellant urges that the prosecution totally failed to establish the circumstances leading to the guilt of the appellant. 6. The appellant during questioning under Section 313 of the Code stated that he did not know whether Sri.Mohandas was alive or dead. The death of Sri.Mohandas is established and that fact is now unassailable. On the morning of 22.05.2015 the body of Sri.Mohandas was found in the stream on the western side of the compound of the gas agency. After registration of the crime on the basis of Ext.P1 statement of **7** Crl.Appeal No.574 of 2021 PW1 recorded regarding the above fact by PW23 and registration of the crime, the investigation was taken over by PW24, the Circle Inspector of Police, Kaduthuruthy. He brought the dead body to the mortuary of Medical College Hospital, Kottayam. It was PW25, Circle Inspector of Police, Vaikom, who conducted an inquest on the body of Sri.Mohandas. The inquest was held at 11.30 a.m. onwards and Ext.P4 is the report. The body was identified before PW24 by one Gobinda Chutiya, a relative of the deceased. A postmortem examination of the dead body was held by PW16, Dr.Rajeev. Ext.P11 is the certificate of autopsy issued by him. At the time of postmortem examination, the body was in the advanced stage of putrefaction. PW16 deposed that the brain was lost due to decomposition. The following antemortem injuries were noticed on the dead body,- - (1) Lacerated penetrating wound 2.5x1.5 exposing the cranial cavity on the left side of the forehead, placed horizontally placed 4cm outer to the midline and 1cm above the eyebrow. The skull bone was fractured underneath. - (2) Lacerated penetrating wound 4x2cm exposing the cranial cavity placed obliquely, on the left side of forehead 3cm above the root of nose touching the midline. **8** Crl.Appeal No.574 of 2021 - (3) Lacerated wound 7x2.5cm, bone-deep, obliquely placed on the left side of the top of the head with its upper inner end 10cm above the root of the nose in the midline. Skull bone underneath injuries No.1, 2 and 3 showed a depressed fracture 12x6cm, with fragmentation. The dura was torn irregularly. The brain was missing due to decomposition. 7. It was PW3 Mathew @ Raju, who noticed the body covered by sacks and clothes in the nearby stream. PWs.1 to 4 were the co-workers of the deceased. Besides them, the body was got identified through his relative Gobinda Chutiya. There was no difficulty for them to identify the body despite decomposition and putrefaction. There was a tattoo inscription ‘Mahenda’ on his arm, which enabled further to identify the body. It was after such identification, the inquest was held by PW25 and the postmortem conducted by PW16. On the basis of the injuries noticed on the body, PW16 could conclusively say the reason for the death. He opined that the death was due to head injuries. We find no reason not to accept the opinion of PW16. Thus, the evidence brought on record proves the death of Sri.Mohandas is a homicide. 8. The prosecution placed reliance to prove the guilt of the accused on the circumstantial evidence. The **9** Crl.Appeal No.574 of 2021 circumstances proposed by the prosecution to prove the guilt are that, (i) the deceased and the appellant were seen last alive together, (ii) the appellant had financial constraints and the deceased had with him money, (iii) abscondence of the appellant by his leaving from the place of work at around 5.45 a.m. on 17.05.2015 without informing PW1 or anyone else in the Agency, (iv) the mobile phone of the deceased was carried by the appellant while he left his place of work, (v) recovery of MO7 iron plate from near the scene of occurrence, (vi) recovery of MOs1 and 2 ‘Kudukkas’ (containers to hold coins) under Section 27 of the Evidence Act, and (vii) detection of blood stain at the place of occurrence. 9. The Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra [1984 (4) SCC 116] held that the following must be fulfilled before the case against an accused can be said to be fully established on circumstantial evidence: - "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established; - (2) the facts so established should be 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; **10** Crl.Appeal No.574 of 2021 - (3) the circumstances should be of a conclusive nature and tendency; - (4) they should exclude every possible hypothesis except the one to be proved; and - (5) 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." 10. A three-Judge Bench of the Apex Court held in Munikrishna @ Krishna v. State by Ulsoor PS [2022 SCC OnLine SC 1449] that in a case where circumstantial evidence is relied on, the chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the accused and not to any other conclusion. It was also held that in a case of circumstantial evidence, the court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of evidence and the evidence must point towards only one conclusion, which is the guilt of the accused. Therefore, the evidence on record should prove beyond doubt that the proven circumstances lead to the only inference that the appellant had committed the offence. The same is the **11** Crl.Appeal No.574 of 2021 view taken by the Apex Court in Rahul v. State of Delhi Ministry of Home Affairs [(2023) 1 SCC 83]. 11. We shall now consider in the light of the laid down by the Apex Court in the aforesaid decisions as to how far the prosecution succeeded in proving the circumstances. 12. PW1 was the Manager of Kumarakom Gas Agency. PWs.2 and 3 were drivers and PW4 a delivery boy in that Agency. Besides them, two other staff members and two loading and unloading workers, who are the deceased and the appellant, were working in Kumarakom Gas Agency. The fact that the appellant and the deceased were working in the gas agency and they were staying together in the room on the northern part of the premises are not in dispute. The versions of PWs.1 to 4 and PW8, the proprietrix of that gas agency, in that regard are cogent also. 13. PW1 as well as PW3 deposed that they left together from the agency at around 9.30 p.m. on 16.05.2015 and at that time both the appellant and the deceased were there in their room. PW1 testified that he instructed them to be in the agency for unloading the load of gas cylinders, which would **12** Crl.Appeal No.574 of 2021 reach in the morning on 17.05.2015. In fact, they wanted to go Perumbavoor on 17.05.2015, Sunday, for sending their salary to their respective family in Assam through some of their acquaintances. PW1 further stated that when Girijan, driver of the lorry contacted him on the morning of 17.05.2015 saying that the appellant and the deceased were not available there, he tried to contact both of them, but he could not. PWs.2, 3 and 4 almost in the similar terms deposed about availability of both the appellant and the deceased in the night of 16.05.2015 in the gas agency and their missing thereafter. Thus, it was revealed that both of them were missing from 17. 05. 2015 onwards. 14. The learned counsel for the appellant assails the evidence of PW1 by pointing out the circumstances that PW1 called the appellant, as is evident from the call data records, only at 8.57 a.m. although the load was claimed arrived at 6.30 a.m. that from 17.05.2015 till 22.05.2015 on which date the body of Sri.Mohandas was located, no complaint was lodged and non-examination of the driver Girijan. The said circumstances have the explanation from the evidence. **13** Crl.Appeal No.574 of 2021 Obviously after Sri.Girijan noticing non availability of the deceased and the appellant, he would have enquired for them and only then he intimated PW1 about their missing. It would have naturally taken some time for PW1 to establish telephonic connection with the appellant, for admittedly he was travelling and PW1 was trying to contact the deceased as well. The fact remains that PW1 made a call to the appellant and he declined the call, which is a strong circumstance indicating his purposeful avoidance of PW1. 15. PW1 deposed that the wife and brother of the deceased were contacting him enquiring about the deceased. Since both are Assamese and they were missing together, PW1 and others reasonably would have inferred that they left for some other destination. Therefore, the failure to lodge a complaint immediately about the disappearance of the deceased and the appellant cannot be a reason to discard the evidence of PWs.1 to 4. Similarly, non-examination of Girijan does not discredit the evidence testified by PW1 to 4. 16. PW5 is an autorickshaw driver. PW6 is his wife. She deposed that PW5 had been using the mobile connection in **14** Crl.Appeal No.574 of 2021 her name. Both of them deposed that at or around 5.45 a.m. on 17.05.2015 the appellant whom they knew already as an employee in the gas agency, contacted through phone and wanted the autorickshaw for him to go to Vaikom. There were two calls from the mobile number of the appellant to the mobile number of PW5. That fact has been deposed by PW15, the Nodal Officer of Reliance Communications. He stated that the calls were at 5.42 a.m. and 5.47 a.m. Ext.P9 is the call details. The cross-examination of these witnesses did not fetch anything to doubt their veracity. True, a contradiction was brought out in the evidence of PW5, Ext. D2. But, that does not have the effect of discrediting his veracity. PW5 is a natural witness. He went for the trip as part of his job. We are therefore of the view that the said evidence satisfactorily proved that the appellant left the gas agency at or around 5.45 a.m. on 17.05.2015. The aforementioned evidence proves that both the deceased and the appellant were together in their room in the premises of the gas agency at 9.30 p.m on 16.05.2015 and the appellant left the gas agency at around 5.45 a.m. on 17.05.2015. **15** Crl.Appeal No.574 of 2021 17. As stated, on 22.05.2015 the body of Sri.Mohandas was found in the stream on the western side of the said room. PW25 is the investigating officer. After completing the formalities of inquest and the postmortem examination, he left for Assam along with his colleagues and PW1 on 23.05.2015. They with the help of police personnel from Ghilamara Police Station in Assam went to the village where the house of the appellant is situated. At 2.30 a.m. on 27.05.2015 they could apprehend the appellant from his house. They produced the appellant before the Sub Divisional Magistrate, Dhakuakhana and obtained a transit warrant. PW25 brought the appellant to the Vaikom Police Station on 31.05.2015 and immediately he was produced before the jurisdictional Magistrate. 18. It was after getting the appellant in custody on 03.06.2015, PW25 questioned him again. The version of PW25 is that based on the information given by the appellant, he together with the appellant went to the place of occurrence and as shown by him, MOs.1 and 2 were recovered as shown by the appellant from the vicinity of the gas agency premises. Both MOs.1 and 2 were torn open. Ext.P7 is the mahazar. It is **16** Crl.Appeal No.574 of 2021 the version of PW2 Sajan that MO1 coin box belonged to him, and the money kept in it was lost. He identified MO2 as the coin box belonging to the deceased in which also there was money. We find no reason to disbelieve the evidence regarding recovery. 19. The statement of the appellant that lead to the recovery of MOs.1 and 2 did not disclose the exact place where MOs.1 and 2 were abandoned by the appellant. But when those objects were recovered only on account of the information given by and as shown by the appellant, it is relevant under Section 8 of the Evidence Act as a subsequent conduct of the appellant. A few other articles from the room in question were also recovered, but the said articles have no much relevance inasmuch as no connecting link between the crime and the offender could be traced from such objects. 20. Both MOs.1 and 2 were found torn off, which would give an inference that money from them was taken by the appellant. The prosecution has another allegation that the appellant stole money with the deceased, which he received **17** Crl.Appeal No.574 of 2021 as month’s wages and also his mobile phone. PW1 deposed that wages were being paid usually on 8th of every month. He also deposed that the appellant and the deceased had planned to go to Perumbavoor on 17.05.2015 for entrusting money with someone for handing over to the members of their family in Assam. The appellant stated during Section 313 examination that the deceased was not paid the wages of the said month and there was an altercation between him and PW1 relating to that. Such a case cannot be accepted at all in the absence of anything to probabilise it. Sri.Mohandas worked there till 16.05.2015 without any demur itself falsifies that contention. Although PWs.1 to 4, who are employees in the gas agency and PW8, the proprietrix were cross-examined in detail, nothing probabilising such a case was brought out from them also. Yet another fact, that the appellant often states about his financial difficulties, was also deposed by PW1. Being the Manager, the appellant stating about his personal difficulties to PW1, is natural. That further corroborates the evidence regarding the motive attributed to the appellant. **18** Crl.Appeal No.574 of 2021 21. Therefore, it has to be found from the evidence that the deceased had with him the wages he received for the month and the appellant had stolen the same. The prosecution, however, failed to adduce satisfactory evidence to prove that the mobile phone of the deceased was stolen by the appellant. 22. MO7, the iron plate was recovered by PW25 from near the place of occurrence on 22.05.2015. It was located on the search of the area where the body was found. It is true that there were no blood stains on MO7. After about five days of the incident, it was recovered. It was lying in an open waterlogged and grassy area. Even if it was stained with blood, the possibility of detecting blood in such circumstances was remote. PW21 is the Scientific Expert in the District Crime Records Bureau, Kottayam. He inspected the place of occurrence and collected soil and suspected cotton gauze from the place of occurrence, besides other objects. In the scientific examination, he detected blood stains on the collected soil confirms that the deceased was assaulted at the place of occurrence, which has been located as the courtyard **19** Crl.Appeal No.574 of 2021 of the room where they were residing. The place of occurrence has been shown precisely in Ext.P5 sketch by PW9, the Village Officer. It was based on the scene mahazar prepared by PW25. The said fact lend sufficient support to the evidence of the prosecution that the offending act had occurred at the courtyard on the northern side of the room, where the deceased and the appellant were residing and MO7 is the weapon used to inflict injuries to the deceased. 23. The multiple injuries found on the face and forehead of the deceased could, in the opinion of PW16, be inflicted using MO7. From the proved facts that the deceased sustained such injuries on the forehead and face and MO7 was found near the place of occurrence and also the opinion of PW16 that such injuries could certainly be inflicted using MO7, it can well be found that MO7 was the weapon of offence used to cause fatal injuries to the deceased. 24. One of the contentions raised by the learned counsel for the appellant is that no evidence to prove that evidence regarding mobility of the mobile phone of the appellant starting from the morning of 17.05.2015 till reaches in Assam was not **20** Crl.Appeal No.574 of 2021 produced, except the oral statement of PW25. From the evidence of PW11, Sayed Muhammed, who sold the mobile phone SIM to the appellant and PW17, who deposed and proved Exts.P13 and P13(a) to show that the identity of the person in whose name phone number 9746559003 was issued, it is established that that phone number belonged to the appellant and it was in his use. PW25 deposed that the mobile phone of the appellant having number 9746559003 was located in various tower areas commencing from Aluva to Assam at various times from 17.05.2015. But that version is based on the information passed on by the cyber cell and not based on any admissible evidence. As rightly contended by the learned counsel for the appellant, the said evidence cannot be placed reliance on. But the prosecution proved beyond doubt that appellant left the gas agency at or around 5.45 a.m. on 17.05.2015 and he was in his house in Assam on 23.05.2015 when PW25, along with PW1 and others reached there to apprehend him. Therefore, lack of evidence regarding his travel to Assam based on locating the tower areas along which he travelled carrying the mobile phone has no much importance. **21** Crl.Appeal No.574 of 2021 25. The learned counsel for the appellant contended that the time of death of Sri.Mohandas was not proved precisely. It is submitted that the time of death could not be stated conclusively by PW16 and that belies the allegation that both the deceased and the appellant were there together at around 9.30 p.m. on 16.05.2015. It was held in Malleshappa v. State of Karnataka [(2007) 13 SCC 399] that the circumstance of last seen together does not by itself lead to an irrevocable conclusion that it is the accused who had committed the crime. The prosecution must come out with something more to establish the connectivity between the accused and the crime. It was also held that if there is no close proximity between the circumstance of last seen together and the approximate time of death, the evidence of last seen becomes weak. See also: Dileep Kumar v. State of Kerala [2023 KHC 9095]. 26. From Ext.P16 postmortem report, it is seen that the stomach of the deceased contained some undigested rice. As held by the Apex Court in Akhtar v. State of Uttaranchal [(2009) 13 SCC 722] existence of semi-digested food in the **22** Crl.Appeal No.574 of 2021 stomach more than five hours of death may be possible. The ordinary standard is that food used to be digested from 2.5 to 6 hours. As observed at page 408 of MODI - A Textbook of Medical Jurisprudence and Toxicology, 27th Edition, the time taken for digestion varies from person to person and place to place. However, from the evidence of PW16 and the availability of undigested food in the stomach of the deceased, it is certainly possible to find that the deceased died in the same night after he had his night-meal on 16.05.2015. From the evidence adverted to above, the prosecution could prove satisfactorily that the Sri.Mohandas disappeared from the night of 16.05 20015. This would relate to finding both the deceased and appellant were the persons seen together last alive and it can relate to the death of Sri.Mohandas, especially, in the absence of any explanation from the part of the appellant. The contention of the learned counsel for the appellant to the contrary cannot therefore be accepted. 27. During cross-examination of witnesses and also giving explanation to the questions put to him under Section **23** Crl.Appeal No.574 of 2021 313 of the Code, the appellant categorically claimed that he went from the gas agency on the evening of 16.05.2015. The evidence specifically proved that the appellant left the gas agency only around 5.45 a.m on 17.05.2015 and that he was last seen in the gas agency along with the deceased till around 9.30 p.m. on 16.05.2015. Therefore his plea that he left the gas agency in the evening of 16.05.2015 stands falsified. That renders confirmation to the facts that the appellant and the deceased were seen alive together last by the persons who ordinarily would have to so seen and that the appellant absconded soon after the death of Sri.Mohandas. The appellant failed to offer any explanation about the death of Sri.Mohandas, which he is obliged in the above circumstances. 28. From the above, we find that the prosecution has succeeded in establishing the circumstances sufficient to establish beyond doubt that it was the appellant who caused the death of Sri.Mohandas for which he had sufficient motive. No other possibility can be deducted from the proved circumstances. **24** Crl.Appeal No.574 of 2021 29. In the said circumstances, we conclude that the appellant committed the murder of Sri.Mohandas. Hence, the findings of the trial court leading to conviction and sentence of the appellant are not liable to be interfered with. The appeal is dismissed. Sd/P.B. SURESH KUMAR, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr