Ibrahim v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938 CRL.A.No. 567 of 2012 (A) --------------------AGAINST THE JUDGMENT IN SC 379/2010 of ADDL.SESSIONS COURT (ADHOC)-II, MANJERI DATED 20-03-2012 C.P.NO. 12/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM APPELLANT(S): ------------ IBRAHIM, S/O.ALI HAJI, PALOLI HOUSE, KODOOR AMSOM, CHEMMANKADAVU, NEAR U.P.SCHOOL, MALAPPURAM DIST BY ADVS.SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENT(S): -------------- THE STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKLUAM,KOCHI-31 BY PUBLIC PROSECUTOR SRI. ALEX THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2016, ALONG WITH CRA. 1208/2012, CRA. 500/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K.ABDUL REHIM & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.500/2016, 567/2012 and 1208/2012 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of August 2016 ## JUDGMENT ## B.Sudheendrakumar J., The appellant in Crl. Appeal 1208/2012 is the 1[st] accused, the ppellant in Crl. Appeal 500/2016 is the 2[nd] accused and the appellant in Crl. Appeal 567/2012 is the 5[th] accused in SC 379/2010 on the files of the Additional Sessions Court, Manjery. The appellants in Crl. Appeal 1208/2012 and Crl. Appeal 500/2016 challenge their conviction and sentence passed by the court below under Sections 302, 364, 394 and 201 read with Section 34 IPC and the appellant in Crl. Appeal 567/2012 challenges in Crl.A.500/2016 & cnnctd cases : 2 : this appeal the conviction and sentence passed by the court below under Section 411 of IPC. 2. For the sake of convenience, the appellants shall be referred to in this judgment as per their rank before the trial court 3. The 1[st] and 2[nd] accused were sentenced to imprisonment for life and a fine of Rs.1,00,000/- each with a default clause for simple imprisonment for two years each under Section 302 I.P.C., rigorous imprisonment for 10 years each and a fine of Rs.50,000/- each and in default to simple imprisonment for one year each under Section 394 I.P.C., rigorous imprisonment for 10 years each and a fine of Rs.50,000/- each and in default to simple imprisonment for one year each under Section 364 IPC and Crl.A.500/2016 & cnnctd cases : 3 : rigorous imprisonment for 7 years and a fine of Rs.50,000/and in default to simple imprisonment for one year each under Section 201 IPC. The 5[th] appellant was sentenced to simple imprisonment for 3 years and a fine of Rs.50,000/and in default to simple imprisonment for 6 months under Section 411 IPC. 4. The prosecution case can be briefly stated as follows:- The deceased namely, E. Joseph Thomas was the Superintendent of audit wing of Central Excise and Customs. In connection with his employment, he used to conduct tour. Therefore, he occupied a room in Nalanda Lodge at Kozhikode, from where he could make trips to various places. On 13-02-2009 at about 7.45 p.m., the accused Nos.1 to 3 in furtherance of their common Crl.A.500/2016 & cnnctd cases : 4 : intention to commit murder and robbery, kidnapped the deceased E. Joseph Thomas from a place in Nallalam in Kozhikode and thereafter, they committed murder of the deceased by strangulation and smothering and thereafter, the accused Nos. 1 to 3 robbed MO4 to MO6 gold ornaments from the deceased. Thereafter, in order to cause the disappearance of the evidence of the commission of murder, the accused Nos. 1 to 3 had removed the dead body of the deceased to the property situated on the side of Azhinilam Farooq College Road. 5. In connection with the above incident. PW14, the son-in-law of the deceased had given Ext.P14 F.I. Statement to PW38 and on the basis of Ext.P14 statement, Ext.P14 (a) F.I.R was registered by PW38 under Section Crl.A.500/2016 & cnnctd cases : 5 : 174 Cr.P.C. PW41 took over the investigation of the case on 14-02-2009. On that day, between 9 a.m. and 11.30., a.m. he conducted inquest on the body of the deceased and prepared Ext.P5 inquest report. MO19 trouser, MO20 shirt. MO21 underwear and MO22 banyan were seized by PW41 from the body of the deceased as per Ext. P5 inquest report. PW41 arrested the 1[st] accused on 22-03-2009 at 1.30 p.m. and as per the disclosure statement given by the 1[st] accused, PW41 discovered MO26 pants and MO 27 shirt as per Ext.P60 mahazer. MO4 gold ring and MO5 gold chain were discovered from the shop of PW5 by PW41 at the instance of the first accused as per Ext.P6 mahazer. PW41 arrested the 2[nd] accused on 22-03-2009 at 2 p.m., and when questioned, the 2[nd] accused had given disclosure Crl.A.500/2016 & cnnctd cases : 6 : statement and pursuant to the disclosure statement and as led by the 2[nd] accused, MO6 ring was discovered by PW41 from the shop of PW7 as per Ext.P7 mahazer. PW41 filed Ext.P57 report before the Court for adding Section 302 I.P.C to the Section of offence, after deleting section 174 Cr.P.C. Thereafter, PW41 filed Ext.P63 report before the court adding Sections 366, 394 and 201 read with Section 34 IPC to the Section of offences. Accused Nos. 4 & 5 were arrested by PW41 on 24-03-2009 at 3 p.m. PW41 questioned the witnesses and conducted the investigation. The investigation was taken over by PW42, who took over the investigation on 17-06-2009. He filed Ext.P92 report before the court deleting Section 366 IPC from the section of offences and adding Sections 364, 401 and 411 IPC. Crl.A.500/2016 & cnnctd cases : 7 : PW42 filed the final report before the court after completing the investigation. 6. Before the trial court, PW1 to PW42 were examined and Exts.P1 to P95 were marked for the prosecution, besides identifying MO1 to MO27. Ext.D1 was marked for the defence. After evaluating the evidence, the court below found the appellants guilty, convicted and sentenced them as mentioned above. Heard. 7. PW1 was the doctor who conducted the autopsy on the body of the deceased on 14-02-2009 and issued Ext.P1 post mortem certificate. PW1 noted the following Crl.A.500/2016 & cnnctd cases : 8 : ante-mortem injuries on the body of the deceased:- “Injuries - Antemortem:- “1. Abrasion 5 x 0.4cm right side of face extending from 1cm below angle of eye towards trangue of ear. 2. Contusion 2.5x1.5cm upper lip internally towards left angle of mouth, muscle of ear. 3. Linear abrasion 3cm back of left ear, oblique. 4. Contusion 6.5x2cm right side of lower lip internally 1cm outer to right angle of mouth, full thickness, with patterned nick and notch abrasion corresponding with the upper jaw teeth on the lip border. 5. Contusion 2x0.8cm right side of lower lip 0.5cm outer to midline 0.2cm below lip border, externally. 6. Two parallel linear transverse superficial cuts of 0.7 and 1cm above down at a distance of 0.4cm midline on the front of neck 3cm below jaw border. Crl.A.500/2016 & cnnctd cases : 9 : 7. Linear abrasion 20cm directed obliquely down ward from upper arm 26cm below shoulder 2cm outer to midline, towards outer aspect of forearm. 8. Two parallel linear contused abrasions 5.5cm and 4cm at a distance of 1.1cm front of right forearm 10cm below elbow mid-portion (outer to in). Dried blood clots and stains seen on and below. 9. Abrasion 0.5x0.4cm back of right index finger on the middle kunckle. 10. Abrasion 3x1.5cm front of right leg 3cm below joint line 1cm outer to midline. 11. Abrasion 2.5x1cm outer aspect of right foot just below bony prominence of ankle joint. 12. Abrasion 2.5x0.4cm vertical front of left leg 18cm below knee 1cm inner to midline. 13. Abrasion 8.5x0.5cm just outer to midline on the front of leg 11cm below knee. Crl.A.500/2016 & cnnctd cases : 10 : 14. Skin deep avulsed incised wound front of left index finger 2x0.4cm on the middle joint line 5cm below tip, outer inwards remain attached at the inner part. 15. Two rather semicircular contused abrasions, skin deep, front one 6x0.5cm (outer front end) to 1.3 (back outer) and back one 2.5x1cm (darker and more deep) on the top of left shoulder in a circular pattern with a gap of 1.2cm midlinle outer and 1cm inner back. The distance between the two was 3.5cm (obliquely front to back). 16. Two rather semicircular contused abrasions; the outer lower one 2x0.5cm and this is continued at its inner back end for 1.5x0.3cm, darker and muscle deep and the inner upper 2.7x1.1cm (skin deep) on the outer aspect left shoulder in a circular patter with a gap of 2cm (front) and 1.5cm (back). The front end of the upper inner was in line with axillary fold, and back portion merging with the front outer end of the larger injury in injury No.15. The distance between the two was 3.2cm (transverse outer to in). 17. Abrasion 2.5x1.5cm back of abdomen left Crl.A.500/2016 & cnnctd cases : 11 : side 2.5cm outer to midline 6cm above natal cleft. 18. Dissection of the neck was done in a bloodless field in layers. Scattered blood infiltration in the subcutaneous tissue lower part of the left side of neck (5x3cm and contused neck muscle left side of neck upto the surface of thyroid cartilage 6x5cm. Cartilages and hyoid bone were intact. Multiple patechial haemorrhages were seen inside the thyroid cartilage and tracheal rings. 19. Linear abrasions 3.5cm front of left forearm 3cm above wrist 2cm outer to midline. 20 Abrasion 2.5x0.6cm outer aspect of left elbow.” 8. PW1 opined that the deceased died due to the combined effect of smothering and ligature strangulation. PW1 further opined that injury Nos.4 and 5 would indicate that the lower lip was pressed against the upper row of teeth, which would show that there was smothering. Crl.A.500/2016 & cnnctd cases : 12 : Injury No.18 would indicate strangulation. The distended congested lungs would indicate that the death was by asphyxia, as per the evidence of PW1. PW1 stated that MO1 thorth could be used to strangulate the deceased. He further stated that injury Nos. 6 and 14 could be caused with MO2 knife. The evidence of PW1 would further show that the skin was taken from the shoulder of the deceased by as PW1 noticed bite marks in injury No.15 and 16. Exhibit P2 is the report of analysis of the blood and viscera of the deceased, which would show that no poison was detected in the blood or viscera of the deceased. It is further reported in Ext.P2 that the blood of the deceased belonged to 'A-group'. 9. In this case, there is no ocular witness to prove Crl.A.500/2016 & cnnctd cases : 13 : the incident. Therefore the relies on prosecution circumstantial, medical and scientific evidence to prove its case. This being a case raising on circumstantial evidence, it is profitable to appreciate each piece of evidence available against each of the accused to find out the truth. 10. The prosecution relies on the following pieces of evidence to connect the 1[st] accused with the commission of the offence. (1) Detection of saliva of the 1[st] accused on MO 20 shirt worn by the deceased at the relevant time as per the D.N.A profile. The salivary stains found on the right shoulder of MO20 shirt of the deceased were found to be identical as per D.N.A profile of the 1[st] accused. Crl.A.500/2016 & cnnctd cases : 14 : (3) Recovery of MO2 knife as per Ext.P8 mahazer pursuant to the disclosure statement given by the 1[st] accused. (4) Recovery of MO4 and MO5 from the shop of PW5 as per Ext.P6 mahazer pursuant to the confession statement given by the 1[st] accused. (5) The discovery of autorickshaw as per Ext.P9 recovery mahazer pursuant to the disclosure statement of the 1[st] accused. The blood stains of the 2[nd] accused found on the rexin taken from the autorickshaw seized as per the above said recovery. Crl.A.500/2016 & cnnctd cases : 15 : (6) The presence of blood stain of the 2[nd] accused on MO27 shirt of the 1[st] accused discovered by PW41 as per Ext.P60 mahazer pursuant to the disclosure statement given by the 1[st] accused. (7) The presence of the 1[st] accused along with the 2[nd] accused on 13-02-2009 has revealed from the evidence of PW21 & PW24. 11. The prosecution relies on the following pieces of evidence to connect the 2[nd] accused with the commission of the offence: (1) The presence of the blood of the 2[nd] accused on MO20 shirt worn by the deceased as per scientific examination of D.N.A profile. Crl.A.500/2016 & cnnctd cases : 16 : (2) Discovery of MO6 gold ring from the shop of PW7 as per Ext.P7 mahazer pursuant to the disclosure statement given by the 2[nd] accused. (3) The evidence of PW21, PW22 & PW24 and Exts.P30, P31, P36 & P51 proving that the deceased had sustained injury on his right middle finger. (4) The presence of blood stains of the 2[nd] accused on MO27 shirt belonging to the 1[st] accused. (5) The presence of blood of the 2[nd] accused on the piece of rexin taken from the autorickshaw. (6) Extra judicial confession alleged to have been given by the 2[nd] accused to PW36 on 30-03-2009. Crl.A.500/2016 & cnnctd cases **==> picture [26 x 9] intentionally omitted <==** 12. The prosecution relies on the following materials to connect the 5[th] accused with the commission of offence proved against him. (1) Evidence of PW11 coupled with Exts.P10, P11, P13, P21, P22 (a) and P23 would show that the appellant had pledged MO5 gold with Muthoot Bank, Malappuram wherein PW11 was the Manager. (2) The evidence of PW5 regarding the redemption of the pledged MO4 from PW11 and selling the same to PW5. (3) The evidence of PW5 that MO4 and MO5 were purchased by him from accused No.1 & 5. 13. PW 41 was the Circle Inspector of Police, who conducted the inquest on the body of the deceased on 14- Crl.A.500/2016 & cnnctd cases : 18 : 02-2009 and prepared Ext.P5 inquest report. As per Ext. P5 inquest report, PW41 inter alia seized MO20 shirt found on the deadbody of the deceased as per Ext.P5 inquest report. MO20 is the shirt of the deceased. MO20 contained saliva of the 1[st] accused as per Ext.P43 report of the Forensic Science Laboratory. PW34 was the Assistant Director, Biology, Forensic Science Laboratory, who conducted D.N.A typing and issued Ext.P43 report. PW34 in Ext P43 report stated that it was found from the D.N.A typing, that the right shoulder portion of the shirt in item No.2 in Ext. P43 report contained human saliva belonging to the 1[st] accused. Item No.2 is MO20 shirt of the deceased. There is no much challenge with regard to the expertise or qualification of PW34 in the field of D.N.A typing. D.N.A Crl.A.500/2016 & cnnctd cases : 19 : typing is an exact scientific method, which is being relied on presently by the courts as a piece of authenticated evidence. The learned counsel for the first accused has argued that since there was delay in producing item No. 20 before the court, the chance of fabricating saliva of the first accused on MO20 shirt by the police cannot be ruled out and consequently, Ext. P43 report cannot be given much weight. The learned counsel has further argued that the accused persons were actually arrested before the actual date of arrest and in the said circumstances also, Ext. P43 report is tainted. We have considered the said arguments carefully. The first accused was arrested to only on 22-032009. The 1[st] accused had a suggestion during the crossexamination of PW41 that the 1[st] accused was arrested Crl.A.500/2016 & cnnctd cases : 20 : and detained by the police from 15-03-2009 onwards. However, PW41 had denied the said suggestion. There is also absolutely no material before the court to probabilise the said suggestion of the first accused. It appears from the property list that MO20 was produced before the court on 09-03-2009. The 1[st] accused had no case that he was arrested on or before 09-03-2009. In the said circumstances, the contention of the first accused that the saliva of the 1[st] accused on MO20 shirt was the saliva planted by the police, cannot be accepted. That apart, there is absolutely no material before the court to indicate that PW1 had any ill-motive to falsely implicate the first accused in a case like this. For the said reason, the argument in this regard cannot be accepted. During the Crl.A.500/2016 & cnnctd cases : 21 : examination of the 1[st] accused under Section 313 Cr.P.C, the accused did not give any explanation with regard to the detection of his saliva of the first accused on MO20 shirt worn by the deceased at the relevant time. Therefore, the detection of saliva on MO20 shirt worn by the deceased at the relevant time is a very strong circumstance connecting the 1[st] accused with the commission of the offence. 14. The Odontology test conducted by PW30 revealed that the bite marks on the right shoulder of the deceased coincided with the bite marks of the first accused in the Odontology test conducted by PW30 who had issued Ext.P30 report. It is found that MO16 teeth marks of the 1[st] accused had matched with the dentition marks on the skin sample taken from the body of the deceased, which is Crl.A.500/2016 & cnnctd cases : 22 : produced as MO18. The evidence of PW30 would show that he examined the teeth and oral cavity of the 1[st] accused with the help of instruments. He also counted the number and type of teeth. Thereafter, PW30 took the impression and prepared mould in plaster of paris. The mould was marked as MO16. Thereafter, the mould was examined by PW30. He also examined the bite mark on the skin surface of the deceased, which was collected by PW1, who conducted the postmortem examination. After scientific analysis, Ext. P38 certificate was issued by PW30. PW30 opined that the bite marks on the skin surface of the deceased were that of the Ist accused in this case. Thus, the evidence of PW30 would show that the odontology test conducted by him would prove that the bite marks found Crl.A.500/2016 & cnnctd cases : 23 : on the right shoulder of the deceased were caused by the teeth of the Ist accused. Thus, the evidence of PW30 coupled with Ext. P38 would prove that the bite marks seen on the deceased were that of the Ist accused. No explanation had been offered by the first accused during his examination under Section 313 Cr.P.C. as to how the bite marks of the first accused happened to be found on the right shoulder of the accused. Thus, the bite marks of the first accused on the right shoulder of the deceased is also a strong circumstances connecting the first accused with the offence. 15. PW41 stated that when arrested and questioned, the 1[st] accused had given disclosure statement and pursuant to the disclosure statement given by the first accused, and Crl.A.500/2016 & cnnctd cases : 24 : as led by the 1[st] accused, the autorickshaw involved in this case, namely, autorickshaw bearing Registration No. KL10Q-3115, was discovered by PW41 as per Ext.P9 mahazer. PW10 was the attestor to Ext P9 mahazer prepared by PW41. Ext.P9 mahazer contains the words spoken to by the 1[st] accused. However, PW41 did not depose about the disclosure statement of the first accused in the words of the 1[st] accused as mentioned in Ext.P9 mahazer. Since the evidence of PW41 does not mention about the disclosure statement given to him by the 1[st] accused, the evidence of PW41 regarding the discovery of the autorickshaw cannot be admissible under Section 27 of the Evidence Act as correctly argued by the learned counsel for the 1[st] accused. However, the conduct of the Ist Crl.A.500/2016 & cnnctd cases : 25 : accused in leading PW41 to the place of recovery is admissible under section 8 of the Evidence Act as the conduct of the accused. 16. The learned counsel for the 1[st] appellant has argued that there is absolutely no material before the court to show that the said autorickshaw was the autorickshaw in which the offence was committed and in the said circumstances, the recovery of the said autorickshaw has no consequence at all. The learned Public Prosecutor, on the other hand, has argued that since blood stain of the 2[nd] accused was detected from the said autorickshaw, it can be safely held that the said autorickshaw was the vehicle used for the commission of the offence in this case. 17. PW35 was the Assistant Director of Serology, Crl.A.500/2016 & cnnctd cases : 26 : who conducted serological analysis of three pieces of rexin collected from the above said autorickshaw and issued Ext.P44 report. The said pieces of rexin were collected from the autorickshaw by PW15. The evidence of PW15 coupled with Exts.P18 and P19 reports would show that PW15 collected the above said pieces of rexin from the authrickshaw seized in this case. Exhibit P44 report would show that the above said pieces of rexin, which are included as item No. 16 in Ext. P44, contained human blood belonging to 'O-group'. The evidence of PW36 coupled with Ext.P52 medico legal report would show that the blood group of the 2[nd] accused was 'O-positive'. It is also to be noted that in the D.N.A typing test conducted by PW34, it is found that the D.N.A typing test of item No.16 Crl.A.500/2016 & cnnctd cases : 27 : contained human blood belonging to the 2[nd] accused. The above evidence would discussed show that blood stain belonging to the 2[nd] accused was found on the rexin taken from the autorickshaw. No explanation had been given by the 1[st] accused or the 2[nd] accused as to how the autorickshaw seized as led by the 1[st] accused happened to be stained with the blood belonging to 2[nd] accused. The detection of human blood belonging to the 2[nd] accused on the autorickshaw is a strong circumstance connecting the autorickshaw with the commission of the offence. Therefore the argument of the learned counsel for the 1[st] accused in this regard cannot be accepted. 18. The evidence of PW41 is that MO27 shirt worn by the 1[st] appellant at the relevant time was discovered by Crl.A.500/2016 & cnnctd cases : 28 : PW41 pursuant to the disclosure statement given by the 1[st] accused and as led by the 1[st] accused. The learned counsel for the 1[st] accused has argued that since there is no independent evidence to prove the discovery of MO27 shirt as per Ext.P60 mahazer, the above said discovery cannot be relied upon. It has further argued by learned counsel for the 1[st] accused that nobody had identified MO27 as the shirt worn by the 1[st] accused at the relevant time and in the said circumstances also, the discovery of MO27 cannot be accepted. 19. It is true that there is no independent evidence to prove the recovery of MO27 shirt as per Ext.P60 mahazar. However, PW41 has categorically stated that the recovery of MO27 shirt was effected pursuant to the disclosure Crl.A.500/2016 & cnnctd cases : 29 : statement given by the 1[st] accused and as led by the 1[st] accused. There is no allegation that PW41 had any illmotive to falsely implicate the 1[st] accused in a case like this. In the said circumstances, the absence of witness to prove, the recovery of MO27 shirt cannot be given much significance. It is also to be noted that the incident in this case was not witnessed by any person. Therefore, the prosecution has relied on circumstantial evidence to prove this case. In such a circumstance, it was hardly possible for the prosecution to cite any person as a witness to prove that MO27 shirt was the shirt worn by the 1[st] accused at the relevant time. For the said reasons, the argument in this regard advanced by the learned counsel for the 1[st] accused cannot be accepted. Crl.A.500/2016 & cnnctd cases : 30 : 20. PW41 stated that when arrested and questioned, the 1[st] accused had given disclosure statement and pursuant to the disclosure statement and as led by the 1[st] accused, MO2 knife was discovered at the instance of the 1[st] accused as per Ext.P8 mahazar. PW9 also supported the evidence of PW41, regarding the discovery of MO2 knife at the instance of the 1[st] accused. 21. The learned counsel for the appellants has argued that since MO2 did not contain the blood belonging to the deceased, the discovery of MO2 has no significance at all. It is clear from Exts.P43 and P44 reports that MO2 contained blood. However, the quantity of blood was insufficient to determine and origin and group. It is also to be noted that MO2 was not the weapon used by the Crl.A.500/2016 & cnnctd cases : 31 : appellants to commit the murder of the deceased. MO2 was used only to threaten the deceased as per the prosecution case. In the said circumstances, the insufficiency of blood on MO2 cannot be taken to indicate that MO2 was not used by the appellants as alleged by the prosecution in this case. For the said reason, the argument advanced by the learned counsel for the first accused cannot be sustained. 22. Another piece of evidence to connect the first accused with the commission of the offence is the discovery of MO4 and MO5. MO4 gold ring and MO5 gold chain were recovered from the shop of PW5 as per Ext.P6 mahazar pursuant tot he discovery statement given by the first accused. PW14 stated that MO4 and MO5 Crl.A.500/2016 & cnnctd cases : 32 : were discovered from the shop of PW5 pursuant to the discovery statement given by the first accused and as led by the first accused. PW5 also stated that he had produced MO4 and MO5 before the police. He further stated that the above said gold ornaments were taken by the first accused from Muthoot Bank, Malappuram and thereafter the same were sold to him by accused Nos.1 and 5 together. PW6 also supported the evidence of PW5 regarding the recovery of MO4 and MO5 from the shop of PW5. It has been argued by the learned counsel for the first accused that since PW5 and PW6 stated that the fifth accused was also there along with the police party and first accused, when PW41 came to the shop of PW5 for effecting the discovery of MO4 and MO5, even though the fifth accused was Crl.A.500/2016 & cnnctd cases : 33 : arrested only on 24.3.2009, the evidence of PW41 regarding the discovery of MO4 and MO5 cannot be relied upon. It is true that both PW5 and PW6 stated that when PW41 came to his shop for the recovery of MO4 and MO5, accused Nos.5 and 1 were present with him. It is also true that the fifth accused was arrested only on 24.3.2009. The learned Public Prosecutor has submitted that PW5 is a hostile witness and hence, the evidence of PW5 that the fifth accused also accompanied PW41 for the recovery of MO4 and MO5 cannot given much weight. It is true that PW5 did not support the prosecution case in its entirity. In the said circumstances, the evidence of PW5 that the fifth accused also accompanied PW41 to the shop of PW5 for effecting the recovery of MO4 and MO5 cannot be given Crl.A.500/2016 & cnnctd cases : 34 : much weight. As regards the evidence of PW6, the learned Public Prosecutor has submitted that PW6 had given evidence before the Court after two years and eight months from the date of recovery and in the said circumstances, it was only natural that PW6 had stated before the court that the fifth accused was also present along with the first accused and PW41 for effecting the discovery of MO4 and MO5, particularly when PW6 himself submitted that he purchased the articles from accused Nos.1 and 5 and in the said circumstances, the evidence of PW6 that fifth accused also accompanied PW41 for effecting the discovery of MO4 and MO5 cannot be given much weight. It is true that PW6 stated that both accused Nos.1 and 5 came together to redeem MO5 from Muthoot Bank, and Crl.A.500/2016 & cnnctd cases : 35 : thereafter both accused Nos.1 and 5 sold MO4 and MO5 to PW5. This would show that accused Nos.1 and 5 were together at the time when MO4 and MO5 were sold to PW5. The records would show that PW5 had given evidence before the court after a period of nearly 2 years and 8 months from the date of occurrence. PW41 clearly stated that fifth accused was arrested only on 24.3.2009. Even then 5[th] accused did not have a contention that fifth accused was arrested at any time prior to 24.3.2009. In view of the above evidence, the evidence of PW5 that fifth accused was also present along with the first accused when they reached the shop of PW5 for effecting the discovery of MO4 and MO5 cannot be given much significance. For the said reason, the argument in this regard advanced by Crl.A.500/2016 & cnnctd cases : 36 : the learned counsel for the first accused cannot be accepted. 23. It is proved from the evidence of PW5 that the first accused along with the fifth accused had approached PW5 and sought his help for redeeming MO5 from Muthoot Bank, Malappuram, managed by PW11. It is further proved from the evidence of PW5 that after redeeming MO5, both the accused Nos.1 and 5 sold MO4 and MO5 to PW5. The pledging of MO5 and redemption of the same from the Muthoot Bank, is proved from the evidence of PW11 and Exts.P11, P12 and P13. Having gone through the evidence of PW5 and PW6 as per the evidence of Ext.P6 mahazarin the light of the evidence of PW1, we are satisfied that PW5 and PW6 with regard to Crl.A.500/2016 & cnnctd cases : 37 : the discovery of MO4 and MO5 at the instance of the first accused can be safely relied on. 24. The learned counsel for the first accused has argued that since the number and extent of blood stains on MO27 were not noted in Ext.P43 report by PW34, the discovery of MO27 cannot be accepted. It has been further argued by the learned counsel for the first accused that Ext.P24 mahazar where by MO27 shirt was discovered is also silent about any blood stain on MO27 and in the said circumstances also, it cannot be said that MO27 contained any blood stain at the time of its seizure. The learned counsel relied on the decision of this court in Ayyappan alias Kutty v. State of Kerala (1960 KLT 510) to substantiate his contention. In Ayyappan (supra), a Crl.A.500/2016 & cnnctd cases : 38 : Division Bench of this court relied on the decision of the Apex Court in Prabhu Babaji v. State of Bombay (AIR 1956 SC 51) and held that in cases where blood-stained articles form an important part of the prosecution evidence, the police must ensure that the mahazar regarding these articles contain a detailed description of the alleged bloodstains including their number and extent. 25. The Apex Court in Prabhu Babaji (supra) further held thus: “The chemical Examiner's duty is to indicate the number of blood stains found by him on each exhibit and the extent of each stain, unless they are too minute or too numerous to be described in detail. Merely to say that blood was detected on an exhibit is not enough. It may well lead to a miscarriage of justice compelling Judges to acquit Crl.A.500/2016 & cnnctd cases **==> picture [26 x 9] intentionally omitted <==** when they would have convicted, had the report been more revealing”. 26. In Raghav Prapanna Tripathi v. State of Uttar Pradesh (AIR 1963 SC 74), the Apex court observed regarding the certificate of a chemical examiner that in as much as the blood stain is not proved to be of human origin, the circumstance has no beneficiary value “in the circumstances” connecting the accused with the murder. 27. The Apex Court in State of Rajasthan v. Teja Ram and others [(1993) 3 SCC 507] considered the decisions of the Apex Court in Prabhu Babaji (supra) and in Raghav Prapanna Tripathi(supra) and held thus in paragraph 27:- “We are unable to find out from the aforesaid decisions any legal ratio that in all Crl.A.500/2016 & cnnctd cases : 40 : cases where there was failure of detecting the origin of the blood, the circumstances arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existing therein. They cannot be imported to a case where the facts are materially different.” 28. In Prabhu Babaji (supra), one circumstance projected by the prosecution was just one spot of blood on a dhoti. Their lordships felt that the blood could equally have spurted on the dhoti of a wholly innocent person passing through in the circumstance described by their lordships in the judgment. 29. In Ayyappan alias Kutty (supra) the deceased found in a pool of blood sustaining injury on his neck. In Crl.A.500/2016 & cnnctd cases : 41 : the case on hand, the murder was by strangulation. The blood found on MO27 was the blood oozed out from the bite injury sustained on the finger of the first accused. The evidence on record would show that there was no profuse bleeding of blood from the said finger of the first accused. The evidence of record further show that the blood stains were so numerous on MO27, as there was no profuse bleeding. It appears that only very minute stain of blood was available on MO27. In view of the circumstance of this case, the non mentioning of the extent and number of blood stains on MO27 either by the scientific expert or by the police cannot be given much significance. In view of the above reasons, the argument advance by the learned counsel in this regard cannot be accepted. Crl.A.500/2016 & cnnctd cases : 42 : 30. The learned counsel has further argued that even though the seizure of MO27 was effected on 22.3.2009, the same was produced before the court only on 8.4.2009 and in the said circumstance, the chance by the police to drop the blood of the second accused on MO27 cannot be ruled out and in the said circumstances, the presence of the blood of second accused on MO27 cannot be accepted to connect the first accused with the commission of the offence. It is true that MO27 was produced before the court only on 8.4.2009. However, no question in this regard was asked to PW41 in cross-examination. The accused was produced before court on 31.3.2009 after the police custody. The learned Public Prosecutor has submitted that if the police had any intention to manipulate the evidence, the police Crl.A.500/2016 & cnnctd cases : 43 : could have been very well obtained the stain of the blood of the deceased on MO27 and in the said circumstance, the argument advance by the learned counsel for the appellant cannot be accepted. The evidence on record would show that MO27 did not contain the blood stains of the deceased. MO27 contain only the blood stains of the second accused. Ext.P67 recovery mahazar does not mention anything about the blood stains on MO27. This would show that even PW41 was not aware of the presence of blood stains belonging to the second accused on MO27, till Ext.P43 report was received. Having gone through the relevant inputs, we are not persuaded to accept the argument of the learned counsel for the appellant that the police had manipulated MO27 shirt with the blood of the second Crl.A.500/2016 & cnnctd cases : 44 : accused to connect both the accused with the commission of the crime, cannot be accepted. It is also to be noted that no complaint whatsoever in this regard was filed by the first accused before any authority or court till date. Even during the examination of PW41, the first accused had no case that the police had sprinkled the blood of the second accused on MO27 shirt of the first accused. In view of the above reasons, we are not persuaded to accept that the police had committed any sort of manipulation as argued by the learned counsel for the first accused. In view of the above reasons, the delay in producing of MO27 before the court is also not material. 31. Another piece of evidence to connect the first accused with the commission of the offence is the evidence Crl.A.500/2016 & cnnctd cases : 45 : of PW21 and PW24 with regard to the presence of the first accused along with the second accused when the second accused came to the hospital to dress his wound. PW21 was the Doctor in M.E.S. Medical college, Perinthalmanna. On 13.2.2009 he examined the second accused and issued Ext.P30 certificate. He further stated that the first accused was also with the second accused at that time. Ext.P31 is the bill for the said treatment. PW21 did not notice any external injury in Ext.P30. However, he stated that he had prescribed T.T. injection for the patient namely, the second accused. PW21 further stated that he had given T.T. injection only because the second accused having external injury. In Ext.P30 also it is shown that T.T.injection was given to the second accused. He also identified the second Crl.A.500/2016 & cnnctd cases : 46 : accused before the court. PW24 was the Nursing Assistant. PW24 stated that both the accused Nos.1 and 2 came to the hospital during February 2009 and he dressed the injury on the finger of the second accused. She had given T.T. injection to the second accused. Both the accused came again to the hospital for dressing. Thus, the evidence of PW21 and PW24 would show that the second accused sustained injury on 13.2.2009 and n connection with that injury they came to the hospital on 13.2.2009 at 9.47 p.m. for treatment. 32. Another piece of evidence available in this regard to connect the second accused with the commission of offence is with regard to the recovery of MO6 gold ring from the shop of PW7 as per Ext.P7 mahazar pursuant to Crl.A.500/2016 & cnnctd cases : 47 : the disclosure statement given by the second accused. PW41 stated that the second accused was arrested on 22.3.2009 and when questioned the second accused had given disclosure statement and pursuant to the disclosure statement and as led by the second accused, MO6 gold ring was recovered at the instance of the second accused as per Ext.P7 mahazar. PW7 supported the evidence of PW41 with regard to the discovery of MO6 at the instance of Ext.P7 mahazar. PW5 also supported the evidence of PW7 regarding the discovery of MO6 from the shop of PW7. PW7 also stated that he purchased the gold ornaments from the second accused. There is no much challenge with regard to the discovery of MO6 from the shop of PW7. It is true that PW7 was a hostile witness. However, PW7 Crl.A.500/2016 & cnnctd cases : 48 : admitted his signature in Ext.P7 mahazar. He also identified the accused and also proved the recovery. Having gone through the evidence of PW7, in the light of the evidence of PW5 and PW41, we are satisfied that the evidence of PW7 with regard to the discovery of MO6 from the shop of PW7 at the instance of the second accused can be safely accepted. 33. MO4 to MO6 were identified by PW14, the sonin-law of the deceased and also PW19, the son of the deceased, as the ornaments being normally worn by the deceased. 34. Learned counsel for the appellants argued that since the manner of committing murder was not mentioned in the charge, the charge was not proper and in the said Crl.A.500/2016 & cnnctd cases : 49 : circumstances prejudice has been caused to the accused. Consequently the appellants are entitled to acquittal. It appears from the court charge that the court framed the charge for the offences under sections 364,302 and 394 and 201 against accused Nos.1,2 and 3. The court charged against Accused Nos. 4 and 5 for the offences under section 411 and 202 IPC. In the charge, it is mentioned that the accused Nos.1,2,3 in furtherance of the common intention committed the murder by intentionally causing death of the deceased. It is not specifically stated in the charge that appellants 1,2 and 3 caused death of the deceased by construction force on the neck. Learned Public Prosecutor has argued that even if there is some omission in framing of charge, that will not be a ground to set aside the Crl.A.500/2016 & cnnctd cases : 50 : conviction and sentence in view of the provisions of section 464(1) of the Cr.P.C. Learned Public Prosecutor relied on the decision of the apex court in Sanichar Sahni vs.State of Bihar (2009(7) SCC 198) to address this submission. In that case, in Sanichar Sahni (supra) the appellant did not take the plea that he was not aware as to what was the charge against him and what defence he could lead. There had been evidence of hatching the conspiracy of impeccable character. The apex court in Sanichar Sahni (Supra) relied on the decision of the Supreme Court in State of A.P. vs. Thakkidiram Reddy 1998 (6) SCC 554) and held that in judging a question of prejudice, as of guilt, the court must act with a broad vision and look to the substance and not to technicalities, and its main concern Crl.A.500/2016 & cnnctd cases : 51 : should be to see whether the accused had a fair trial and whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. The court ultimately came to the conclusion that inspite of defect in framing of charge, as no prejudice had been caused to the convicts and hence no interference was required. In Sanichar Sahni (Supra) the court held that unless there is failure of justice and thereby the cause of the accused has been prejudiced, no interference is required if the conviction can be upheld on the evidence led against the accused. The court should not interfere unless it is established that the accused persons were in any way Crl.A.500/2016 & cnnctd cases : 52 : prejudiced due to the errors and omissions in framing the charges against him. Therefore, the law on the issue can be summarised to the effect that unless the convict is able to establish that defect in framing the charge has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory. 35. Sub section (1) of section 464 of Cr.PC 1973 expressly provides that no finding sentence or order by a court of competent jurisdiction shall be deemed to be invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the Crl.A.500/2016 & cnnctd cases : 53 : charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub section (2) of the said section lays down the procedure that the court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purpose is Section 465 of the Code and it lays down that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in Crl.A.500/2016 & cnnctd cases : 54 : determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. 36. In this case, the occurrence no doubt was given a fair trial. The accused knew what was being tried for. The main facts sought to be established against the accused persons were explained to the accused fairly and clearly. The accused persons were also given a full and fair chance to defend themselves. All the accused persons were represented by a competent lawyer of their choice. All the witnesses were cross examined at length. However question was asked to any of the witnesses with regard to Crl.A.500/2016 & cnnctd cases : 55 : any defect in framing of the charge. No complaint was made before the court with regard to the defect in framing the charge. As we have already pointed out this is a case wherein prosecution relies on prejudicial evidence to prove this case. PW1 was the doctor who conducted the autopsy on the body of the deceased. PW1 clearly opined that the deceased died due to the combined effect of smothering ligature strangulation. Ext.P1 post mortem certificate issued by PW1 would also show that the deceased died due to the combined effect of smothering ligature strangulation. Ext.P1 post mortem certificate and the final report filed by the police were given to the accused under section 201 Cr. PC. before committing the case to the Sessions Court. The final report filed by the Crl.A.500/2016 & cnnctd cases : 56 : police would also make it clear that the deceased was murdered by smothering and ligature strangulations. PW1 was also examined at length. Cross examination of PW1 also does not indicate the defence had entertained any doubt with regard to the manner of causing death of the deceased. If the defence had any prejudice, the defence would have filed objection at any stage prior to the completion of the trial before the court below. Having failed to raise any such objection up to the appeal stage, it cannot be heard to say that prejudice had been caused to the accused as the manner of causing death of the deceased was not specifically mentioned in the charge. The charge sheet filed which was also given to the accused under section 207 Cr.PC. In view of the above reasons, the Crl.A.500/2016 & cnnctd cases : 57 : argument in this regard lacks merit. Crl.A.500/2016 & cnnctd cases : 58 : 37. It has been further argued by the learned counsel for the accused 1 and 2 that eventhough the prosecution had alleged that accused Nos.1 to 3 had committed the offence in furtherance of their common intention, the 3[rd] accused was acquitted in the trial and consequently accused 1 and 2 who were also similarly placed are also entitled to acquittal. It is true that the court below acquitted accused No.3 on all the charges framed against him as there was no evidence to connect accused No.3 in the commission of offence. The case of the 1[st] and 2[nd] accused is different from the case of the 3[rd] accused in the sense that there is ample evidence to connect the 1[st] and 2[nd] accused with the commission of the offence. Learned Public prosecutor on the other hand submitted that the 3[rd] accused was acquitted Crl.A.500/2016 & cnnctd cases : 59 : by the court below on the reason that there was no evidence to connect him with the commission of offence and in the said circumstances, merely because the 3[rd] accused was acquitted by the court below, it cannot be said that the 1[st] and 2[nd] accused are also entitled to acquittal on that reason. Learned counsel relied on the decision of the apex court in Balraje vs. State of Maharashtra (2010 (6) SCC 673) to support his contention. In Balraje (supra) the apex court held in para 29 that law is fairly well settled that even if acquittal is recorded in respect of the coaccused on the ground that there were exaggerations and embellishments yet conviction can be recorded if the evidence is found cogent, credible and truthful in respect of another accused. Since there is ample evidence to Crl.A.500/2016 & cnnctd cases : 60 : connect the 1[st] and 2[nd] accused in this case with the commission of offence and since there is no evidence to connect the 3[rd] accused with the commission of the offence, merely because the 3[rd] accused was acquitted as there was no evidence against him, it cannot be said that the 1[st] and the 2[nd] accused are also entitled to be acquitted. 38. Learned counsel for the appellants relying on the decision of the apex court in State of Maharashtra vs. Madhukar Govind Pakhare (AIR 1998 SC 2978) argued that since the prosecution could not establish the place of occurrence in this case, the appellants are entitled to benefit of doubt. Learned Public Prosecutor has submitted that since the place of occurrence could not be exactly ascertained in this case as the offence was committed Crl.A.500/2016 & cnnctd cases : 61 : inside an autorickshaw during his journey from Nallalam bus stop to the place from where the dead body was discovered and in the said circumstances the argument advanced in this regard cannot be sustained. In Madhukar Govind Pakhare (supra) the bloodstained clothes and footwear found in the house of the accused. The High Court did not place any reliance upon the recovery of bloodstained shirts from the house of the accused as in the panchnama under which they were seized it was not at all stated that they were blood stained on those shirts. On the chapals which were recovered from the house, no human blood was detected. Therefore, no reliance was placed by the High Court on that circumstance also. The High Court doubted recovery of the stone with which the deceased Crl.A.500/2016 & cnnctd cases : 62 : was alleged to have been killed on the ground that the whole story was improbable particularly when it was found from a distance of land one and half furlongs. In the said circumstances, the apex court found that the prosecution had failed to establish where the incident had taken place as well. In that case the incident was not in a moving vehicle whereas in this case the incident was in a moving autorickshaw bearing registration NO.KL10 Q 3115. The dead body was found in the adjacent compound of the house of PW4. The evidence of PW15 would show that he collected rexin from the autorickshaw. Ext.P43 report of DNA would show that the rexine piece collected from the autorickshaw contained bloodstain belonging to the group of 2[nd] accused. As we have already mentioned Crl.A.500/2016 & cnnctd cases : 63 : there is no direct evidence in this case. However there are pieces of circumstantial evidence clearly proved that the offence was committed inside the autorickshaw during its journey from Nallalam bus stop to Arikad. In the said circumstances, it was hardly not possible for the prosecution to prove the exact place of occurrence. In view of the above, the facts of this case are different from the facts in Madhukar Govind Pakhare (supra) and in the said circumstances the argument in this case advanced by the learned counsel cannot be accepted. 39. Learned counsel for the 2[nd] accused has argued that the extra judicial confession alleged to have been given by the 2[nd] accused to PW36 in the original wound certificate appended Ext.P51 cannot be said to be an extra Crl.A.500/2016 & cnnctd cases : 64 : judicial confession as the said statement is under section 26 of the Evidence Act. Section 25 of the Indian Evidence Act stipulates that a confession made by an accused to a police officer cannot be proved against him . Section 26 of the Indian Evidence Act stipulates that a confession made by an accused while in police custody cannot be proved against him unless it could be made in the immediate presence of a Magistrate. It is evident from the factual position spoken to by PW36 and PW41 that the so called extra judicial confession was given by the 2[nd] accused while he was in custody. It is therefore apparent that in terms of the mandate of section 25 and 26 of the Evidence Act the said statement cannot be used against the 2[nd] accused. In the said circumstances we are not persuaded to Crl.A.500/2016 & cnnctd cases : 65 : accept the submission of the learned Public Prosecution that the statement given by the 2[nd] accused to the police that he sustained injury while he attempted to smother the deceased cannot be said to be an extra judicial confession under section 24 of the Evidence Act. Now the question to be considered as to whether the prosecution would establish common intention on the part of the 1[st] and 2[nd] accused in committing murder of the deceased. In a case resting a circumstantial evidence the common intention can be gathered only from the circumstances available in the case. MO20 contained bloodstain of 2[nd] accused and also the saliva of the 1[st] accused as per Ext.P43 report which we have already discussed. The above discussion would further show that MO27 shirt of the 1[st] accused Crl.A.500/2016 & cnnctd cases : 66 : contained the blood of the 2[nd] accused . The autorickshaw bearing registration No.KL-10 Q 3115 contained bloodstain of the 2[nd] accused. No explanation has been given by the 1[st] or 2[nd] accused in respect of any of the incriminating materials appearing in the evidence against them. In the evidence of Pws. 21,24 and 36 that the deceased sustained bite on his finger on 13.2.2009. The evidence would show that the said injury was sustained by the 2[nd] accused in the course of the same transaction. The 1[st] accused has not explained as to how the blood of the 2[nd] accused happened to MO27 shirt belonging to the 1[st] accused. The 2[nd] accused did not give any explanation in this regard. There is no explanation from the 1[st] and 2[nd] accused as to how the saliva of the 1[st] accused and the Crl.A.500/2016 & cnnctd cases : 67 : bloodstain of the 2[nd] accused on MO20 shirt belonging to the deceased. There is no explanation as to how rexine collected from the autorickshaw contained blood belonging to the 2[nd] accused. There is also evidence of PW5 and Pw11 with regard to the plea of MO5 with MO4 and redeeming the same from there. The evidence of PW5 would further shows that sale of MO4 and MO5 to PW5 by the 1st and 5[th] accused. The evidence of PW7 and PW5 coupled with recovery of MO6 gold ring at the instance of the 2[nd] accused also is a strong circumstance connected the 2[nd] accused with the commission of the offence. MO4 and MO6 were identified as the belongings of the deceased by his son PW19 and his son-law PW14. The evidence of PW21 and 24 would show that the 2[nd] accused came to the Crl.A.500/2016 & cnnctd cases : 68 : hospital at 9.47 pm. on 13.2.2009 and at that time the 1[st] accused also accompanied the 2[nd] accused. The cumulative effect of the above mentioned evidence taken together is conclusive in establishing that there was common intention on the part of the 1[st] and 2[nd] accused in committing the offences. 40. Learned counsel for the 1[st] and 2[nd] accused has argued that eventhough MO2 knife was available with the the accused persons, they did not use MO2 to cause the death of the deceased and in the said circumstances it cannot be said that there was intention to commit murder of the deceased. It has been further argued by the learned counsel that merely because there is discovery of MO4 to MO6 gold ornaments belonging to the deceased, it cannot Crl.A.500/2016 & cnnctd cases : 69 : be said that accused 1 and 2 committed murder of the deceased. It has been further argued that the discovery of MO4 to MO6 only at the best interest that accused 1 and 2 committed robbery of the said ornaments and in the said circumstances accused 1 and 2 cannot be persons committed to any offences other than offences under section 394 IPC. 41. The evidence discussed above would clearly show that the 1[st] and 2[nd] accused committed murder of the deceased. The evidence would further show that accused 1 and 2 committed robbery of MO4 to MO6 gold articles belonging to the deceased after committing murder of the deceased. 42. In Virsa Singh vs. State of Punjab (1958 KHC Crl.A.500/2016 & cnnctd cases : 70 : 451 (SC) the apex court observed in para 12 and 13 thus :- “12. To put it shortly, the prosecution must prove the following facts before it can bring a case under section 300 “thirdly”. First it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury that is to say, that it was hot accidental or unintentional or that some other kind of injury was intended. Once these four elements are proved to be present, the enquiry proceeds further and , Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and Crl.A.500/2016 & cnnctd cases : 71 : has nothing to do with the intention of the offender. 13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under section 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only Crl.A.500/2016 & cnnctd cases : 72 : question is whether as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional. “ 43. In this case the evidence of PW1 coupled with PW16 would clearly show that the injuries were effected on the neck of the deceased. It was further proved by the prosecution that the injury Nos. 4 and 5 were caused by smothering and injury No. 18 was caused by Crl.A.500/2016 & cnnctd cases : 73 : strangulation. So the said injuries were serious injuries which caused the death of the deceased. It is clear from the nature of injuries as revealed from the evidence of PW1 that the said injuries were not accidental or unintentional. PW1 stated that the death was due to ligature strangulation. PW1 also stated that injury No.18 could be caused with MO1 Dhothi. From the nature of the injuries there can be no doubt that the said injuries were caused not without any intention or the said injuries were accidental. The evidence of PW1 would further show that the said injuries resulted in the death of the deceased. The said injuries were sufficient in the ordinary course of nature to cause death. It is true that only injury Nos. 6 and 14 caused with MO2 knife. Merely because the accused Crl.A.500/2016 & cnnctd cases : 74 : did not use MO1 instead of using MO2, it cannot be said that the accused had no intention to commit murder. It is also common knowledge that in every robbery there is chance for murder of the victim. When theft is robbery, if in order to committing of theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. 44. In this case the evidence on record would clearly establish that the deceased died due to ligature strangulation using MO1 thorth and also by smothering. In the circumstances merely because MO2 was not caused Crl.A.500/2016 & cnnctd cases : 75 : factual injuries on the deceased it cannot be said that accused 1 and 2 had no intention to commit murder of the deceased. 45. As regards the 5[th] accused the evidence of PW11 coupled with evidence of Exts.P11, P21(b), P22(a) and P23 would show that the appellant had pledged MO5 with MO4 gold with Muthoot Bank, Malappuram wherein PW11 was the Manager. The evidence of PW5 would further show that the 5th accused had redeemed the pledged MO5 from the Bank and sold the same to PW5 along with MO4. There is no evidence to connect 5[th] accused with the commission of offence of murder. It would clearly prove that PW5 committed the offence under section 411 IPC. Crl.A.500/2016 & cnnctd cases : 76 : 46. The above discussion would make it clear that in this case, prosecution could establish a complete chain of circumstances which rules out the possibility of any other person other than accused 1 and 2 to commit the offence. The evidence on record points out fingers of accused 1 and 2 to be the author of the crime. Having gone through the evidence on record we are satisfied that the circumstances available in the case is complete in all respect and it establishes beyond reasonable doubt that appellants 1 and 2 committed offences under section 302,364,394 and 201 IPC. The court below correctly found that 1[st] and the 2[nd] accused committed offence under section 201 read with section 34 IPC and the 5th accused committed the offence under section 411 IPC and in the said circumstances we Crl.A.500/2016 & cnnctd cases : 77 : find no reason to interfere with the conviction passed by the court below against the appellants. The court below had taken a very lenient view in the case. In the circumstances we find no reason to interfere with the conviction and sentence passed by the court below. In the result these appeals stand dismissed. **C.K.ABDUL REHIM, JUDGE** **B.SUDHEENDRA KUMAR, JUDGE** _amg/dl/pmn/19.9.16_