Hamsa @ Hammed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR** **&** **THE HONOURABLE MRS. JUSTICE M.C.HARI RANI** **FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930** **CRL.A.No. 389 of 2005()** **-----------------------** **SC.491/2003 of THE ADDITIONAL SESSIONS COURT (FAST TRACK - I) (ADHOC), MANJERI.** **....................** ## **APPELLANT/ PETITIONER:** **-----------------** **HAMSA @ HAMMED, CONVICT NO.910, CENTRAL PRISON, KANNUR.** **BY ADV. ADV.SAIRA RAVIKUMAR(STATE BRIEF)** **RESPONDENT:** **---------------** **STATE OF KERALA.** **PUBLIC PROSECUTOR, SRI.P.RAVINDRA BABU.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------Crl.Appeal. No.389 OF 2005 ---------------------------------------Dated this the 19[th] day of December, 2008** ## **J U D G M E N T ~~~~~~~~~~~** Balakrishnan Nair, J. The appellant aggrieved by the conviction and sentence imposed on him for the offences punishable under Sections 302 and 382 of the I.P.C. in Sessions Case No.491/2003 of the Additional District and Sessions Judge, Fast Track Court No.1. (Ad hoc), Manjeri, has come up in appeal. ## 2.The brief facts of the case are the following: The deceased, Nalini, was a sweeper of Ganga Kalyanamandapam at Kottapadi. The accused was a labourer. Sometime back, he has worked as a manual labourer in connection with the construction of boundary wall of the said Kalyanamandapam for about two weeks. The allegation against the accused was that on 10.8.2001 between 4.p.m. and 7p.m., he committed the murder of Nalini by strangulation and committed theft of her gold chain weighing about 2 gold Crl.Appeal No.389/2005 2 sovereigns. There was no eyewitness to the incident. The dead body of Nalini was found half naked at about 9.a.m. on 11.8.2001 by PW1, the Manager of the Auditorium. He sent word to the father of the deceased, PW2. They together went to the police station and PW1 lodged the First Information Statement, Ext.P1. Based on the said statement, PW24 registered Ext.P16 First Information Report. The Circle Inspector, concerned, took over the investigation. The accused was arrested on 20.8.2001. On the basis of the disclosure statement by him, the gold chain worn by the deceased was recovered from the jewellery run by PW10. PW25 completed the investigation including questioning of the witnesses etc. and laid the charge sheet before the Judicial First Class Magistrate's Court, Malappuram. The learned Magistrate committed the case for trial by the Sessions Court, Manjeri, which in turn was made over for trial to the Additional Sessions Judge, Fast Track No.1(Adhoc) Majeri. 3. The accused pleaded not guilty to the charges framed against him under Sections 302 and 382 of the I.P.C. From the side of the prosecution, PWs 1 to 25 were examined. Exts.P1 to Crl.Appeal No.389/2005 3 P22 were marked. Material objects, MOs 1 to 6 were also produced and marked. From the side of the defence, DW1, Dr.Jessy Joy, was examined and D4 and D5 were marked through the said witness. D1 to D3 were the contradictions in the deposition of the witnesses with reference to their statements under Section 161 of the Cr.P.C. They were also marked, when the relevant witnesses were examined and proved through PW25, investigating Officer. The learned Sessions Judge found the accused guilty of both the offences charged against him. For the offence under Section 302 he was sentenced to undergo imprisonment for life and to pay a fine of Rs.15,000/-. For the offence under Section 382 of the I.P.C., he was sentenced to undergo imprisonment for ten years and a fine of Rs.10,000/-. Default sentences to undergo two years imprisonment, on failure to pay the fine amount for both the offences under Sections 302 and 382 of the I.P.C. were also imposed. 4. Feeling aggrieved by the conviction and sentence, the appellant preferred this Criminal Appeal. The learned counsel for the appellant submitted that except the recovery under Crl.Appeal No.389/2005 4 Section 27 of the Indian Evidence Act, there is no evidence on record to connect the accused with the crime. The recovery made under Section 27 also lacks credence. PW10, the jewellery owner, PW12, Narayankutty @ Mani, and PW13, Ayyappan, who is a gold appraiser, are all police witnesses and their versions can not be relied on. Further, PW10 has deposed that he is maintaining a record for purchase of old gold ornaments. Non production of the said record is a serious lacunae in the prosecution case. Further, the identification of the gold chain by the witnesses like PW2, father of the deceased, PW3, Gold smith who claims to have crafted the gold chain and PW6, the daughter of the deceased also lacks credence. PW6 has stated that there was a locket attached to the chain worn by her mother. But, the recovered chain does not contain any locket. So, the recovery and also identification of the chain are unreliable. Therefore, the accused is entitled to get the benefit of doubt, it is submitted. Further, even assuming the recovery made is correct, the same is not sufficient to find him guilty of murder. The presumption under Section 114 (a) of the Evidence Act cannot be stretched to that extend. Therefore, the conviction of him under Section 302 Crl.Appeal No.389/2005 5 of the I.P.C. is unsustainable in law, it is submitted. The learned counsel for the appellant also relied on the decision of the Apex Court in **Makhan Singh v. State of Punjab** [AIR 1988 SC 1705] in support of her submission. The learned counsel also brought to our notice that the charge framed by the court. As per the case of the prosecution, the murder was committed between 4.p.m and 7.p.m, whereas, as per the court charge it is between 4.a.m. and 7.a.m. Further, on the fateful day, Venugopalan, who is PW16, was present in the auditorium during the night time. His duty time was from 6.p.m. to 6 a.m. He took the key from the switch board, where it is usually kept, at about 6.30 p.m. on the fateful day. Later, in the morning, when he went home, he placed the key again there at 5.15 a.m. The body was admittedly still lying near the switch board. He did not notice the same during his duty time. Therefore, the case of the prosecution regarding the time of occurrence also creates suspicion. For all the above reasons, the learned counsel for the appellant prayed for acquitting the accused giving him the benefit of doubt. Crl.Appeal No.389/2005 6 5. The learned Public Prosecutor on the other hand submitted that there is no reason to disbelieve the versions of PWs 10, 12 and 13. They have no special interest to implicate the accused, falsely. Therefore, the recovery, under Section 27, of the chain is proved beyond reasonable doubt in view of their depositions. Further, the father and daughter have identified the gold chain. Even if, the locket is there or it is missing, the same does not affect the veracity of the identification of the gold chain. From the evidence of PW12, it could be seen that the accused met him with the gold chain at about 9.p.m. on 10.8.2001. Though the said witness has not given the date, when the depositions of PWs, 12, 13 and 10 are read together, it is clear that the date was 10.8.2001. PW10 has specifically given the date. So, immediately after the death of Nalini, the accused is found in possession of her gold chain. So, the presumption under Section 114 (a) of the Evidence Act can be used to find him guilty of her murder also. In support of the above submission, the learned Public Prosecutor relied on the decision of the Apex Court in **Earabhadrappa v. State of Karnataka** [AIR 1983 SC 446] and **Gulab Chand v. State of Madhya Pradesh** [AIR 1995 Crl.Appeal No.389/2005 7 SC 1598]. The learned Public Prosecutor also submitted that at the time of postmortem rigor mortis was disappearing. That means, the death took place approximately 40 hours before the time of autopsy, which was conducted at 11.a.m. on 12.8.2001. So, the said fact would indicate the time of death must be somewhere around 4 p.m. and 7.p.m. 6. From the materials on record, including the deposition of the witnesses, the following facts are disclosed. The deceased left the house of Karthiyayani Amma, where she was working as a domestic servant, on the date of the occurrence between 4 p.m and 4.30 p.m. This will be evident from the deposition of PW2, father of Nalini. Her dead body was found on the next day morning at about 9. a.m. by the Manager of Ganga Kalyanamandapam, PW1. So, in between the death took place. Deposition of PW21 and Ext.P13, Postmortem certificate, would show that the death was due to ligature strangulation. The above facts are undisputed facts. Crl.Appeal No.389/2005 8 7. The next point to be considered is the complicity of accused in the crime. The prosecution mainly relies on the recovery of MO3 gold chain at the instance of the accused to sustain the conviction. PW12 has stated that the accused came by about 9.p.m. in the night with MO3 gold chain and requested his assistance to sell the same. The witness was told that the accused is in dire need of money for the treatment of his wife. The accused stayed with the said witness during that night. Next day, both of them went to the house of PW13, Ayyappan, who is the gold appraiser of a bank. Along with the said witness, they went to PW10, who is the owner of a jewellery shop. He purchased the said gold chain and paid around Rs.5,500/- on 11.8.2001 to the accused. Based on the disclosure statement, contained in Ext.P17, proved through PW25 investigating Officer, recovery was made. The facts discovered pursuant to the disclosure statement includes the aforementioned witnesses and the jewellery shop also. Though the learned counsel for the appellant would try to point out the discrepancies in the deposition of the above witnesses, we feel that they are truthful witnesses. If there are some minor contradictions those only add Crl.Appeal No.389/2005 9 to their credibility. Their depositions has withstood the crossexamination of the defence. They have no special reason to conspire against the accused and implicate him in a false case. So, we are inclined to believe their version and also the recovery made pursuant to the disclosure statement of the accused. The contentions of the appellant regarding the reliability of the recovery do not appeal to us. The non-production of the records of the jewellery concerning purchase of gold ornaments will not make the recovery unreliable. We feel that the non-production of the records by PW10, regarding the purchase of gold will not affect the veracity of his version. 8. MO3 gold chain has been identified among others by PW2, father of the deceased, and PW6, the daughter of the deceased. The deceased is not affluent and she was having only one gold chain and it is quite natural that her father and daughter could identify it. Even if, a locket attached to it is missing, as stated by her daughter, PW6, we find no reason to disbelieve the above statement of the witnesses regarding identification of gold chain. The above version of the father and Crl.Appeal No.389/2005 10 daughter is corroborated by the evidence of PW3, who is a gold smith, who made the gold chain as per the specifications given by the mother of the deceased. So, we hold that the identification of the chain by the witnesses is reliable and could be acted upon it. The contentions of the appellant against the identification of MO3 by the above witnesses are unsustainable. 9. Now the point to be considered is whether the possession of the gold chain by the accused soon after the suggested time of death of Nalini is sufficient to implicate him and find him guilty of the offences under Sections 302 and 382 of the I.P.C. We notice that the accused does not have any explanation for the possession of the gold chain. Total denial is the defence adopted. In the absence of proper explanation by the accused for his possession of the gold chain worn by the deceased, we feel that the court below has rightly held the accused guilty of the offences under Sections 302 and 382 of the I.P.C. This view taken by us is fully supported by the decision of the Apex Court in **Earabhadrappa v. State of Karnataka** [AIR 1983 SC 446]. In the said decision, the Apex Court has held as follows: Crl.Appeal No.389/2005 11 “13. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of PW3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by PW26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ext.P35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under Illustration (a) to Section 114, must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long Crl.Appeal No.389/2005 12 particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.” ## Again in the decision of the Apex Court in **Gulab Chand v. State of M.P.** [AIR 1995 SC 1598] held as follows: “4. We have considered the judgment passed by the learned Sessions Judge and also by the High Court and we have been taken through the evidence adduced in this case. It has been established in the instant case that the appellant Gulab Chand was taken into custody on 27th April, 1979 by the police and when the police searched his house with the key supplied by the accused, a musical instrument called Banjo was found in his room and from inside the said instrument, the police seized golden Tabij (Article 10), two pair of Jhumkas (Article 11), Shringaridan (Article 9), silver bangles (Article 7), one brassbungari (Article 21) and currency notes worth Rs.1200/-. It has also been established in this case that on the information given by the said accused, the police seized certain silver ornaments from PW12. Balaram from his shop at Jabalpur and it has been established that the accused sold the said ornaments to Balram and signed in the register maintained by Balram in proof of selling the said ornaments. It has also been established by the cogent evidence that the said ornaments belonged to the deceased. It may be stated that on 29th May, 1979, a test identification parade was held in which the recovered ornaments were duly identified as belonging to the deceased by Durgaprasad and other witnesses. It is true that simply on the recovery of stolen articles; no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and Crl.Appeal No.389/2005 13 robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of the evidence adduced. It has been indicated by this Court in Sanwat Khan v. State of Rajasthan (AIR 1956 SC 54), that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof. It appears that the High Court in passing the impugned judgment has taken note of the said decision of this Court. But as rightly indicated by the High Court the said decision is not applicable in the facts and circumstances of the present case. The High Court has placed reliance on the other decision of this Court rendered in Tulsiram v. State (AIR 1954 SC 1). In the said decision, this Court has indicated that the presumption permitted to be drawn under Section 114, illustration (a) of the Evidence Act has to be read along with the important time factor. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case. In the instant case, it has been established that immediately on the next day of the murder, the accused Gulab Chand had sold some of the ornaments belonging to the deceased and within 3-4 days, the recovery of the said stolen articles was made from his house, at the instance of the accused. Such close Crl.Appeal No.389/2005 14 proximity of the recovery, which has been indicated by this Court as an “important time factor,” should not be lost sight of in deciding the present case. It may be indicated here that in a later decision of this Court in Earabharappa v. State of Karnataka (1983)(2) SCC 330 : (AIR 1983 SC 446), this Court has held that the nature of the presumption and illustration (a) under Section 114, of the Evidence Act must depend upon the nature of evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant. Excepting an assertion that the ornaments belonged to the family of the accused which claim has been rightly discarded, no plausible explanation for lawful possession of the said ornaments immediately after the murder has been given by the accused. In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore the presumption arising under illustration (a) of Section 114, Evidence Act is Crl.Appeal No.389/2005 15 that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments. We therefore do not find any reason to interfere with the impugned decision of the High Court and accordingly this appeal fails and is dismissed.” 10. In this case, the material object recovered is not something which passes from hand to hand frequently like currency note etc. Further, the theft and murder were integral parts of the same crime. Therefore, the possession by the accused of the chain worn by the deceased immediately after her death is a clinching circumstance against him. The decision relied on by the learned counsel for the appellant has no application to the facts of the case. 11. Regarding the time of death, there is no direct evidence. Prosecution can be asked to produce evidence available with it. It cannot be asked to manufacture evidence to make the truth appear true. In the light of the oral evidence of the witness, the accused must have died after 4.30.p.m, that is, the time she left the house of the Karthyayani Amma and before 9.p.m, the time when the accused was seen with the ornament of the deceased. The doctor, who conducted the postmortem, has Crl.Appeal No.389/2005 16 deposed that the rigor mortis which was already set in has partially disappeared when the autopsy was conducted. The time taken for rigor mortis to fully set in and the same to disappear will vary from place to place and climate to climate, going by the authorities on this point including Modi's Medical Jurispurudence. The finding in the postmortem was that rigor mortis has disappeared. The same is not inconsistent with the case of the prosecution that the death must have occurred between 4.p.m. and 7.p.m. But, the learned counsel for the appellant raised a contention that the dead body was not found by the watchman, Venugopalan, PW16, at 5.15a.m. in the morning, even though he went very near to the place, where the body was lying, for the purpose of keeping the key by the side of the switch board. At 5.15 a.m. there may not be sufficient star light, especially, having regard to the fact that the incident took place in the month of August, which is the season of south-west monsoon in Kerala. Therefore, in the darkness if he did not notice the dead body laying, there is nothing unusual about it. In the absence of any case for the defence that the body might have been put there after the watchman left the place, the Crl.Appeal No.389/2005 17 failure of the watchman to notice the body is of no consequence. We notice that the discrepancy regarding the time of death of Nalini in the police charge and court charge is only typographical error. No prejudice has been caused by the said error to the accused. In the result, there is no merit in the case of the appellant and accordingly, the criminal appeal is dismissed. ## **(K.BALAKRISHNAN NAIR, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** ## **ps** Crl.Appeal No.389/2005 18 **K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ.** =========================== Crl.A.NO.389/2005 =========================== JUDGMENT DATED 19TH DECEMBER, 2008 ==============================