JALALUDHEEN C.NO.6553 S/O HASANARAN KUNJU v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY,THE 13TH DAY OF MARCH 2019 / 22ND PHALGUNA, 1940** **CRL.A.No. 804 of 2012** **SC 527/2009 of ADDITIONAL SESSIONS COURT-I,MAVELIKKARA** ## **APPELLANT/ACCUSED** **JALALUDHEEN C.NO.6553 S/O HASANARAN KUNJU, CENTRAL PRISON, THIRUVANANTHAPURAM.** **BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.)** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SPL.PUBLIC PROSECUTOR SMT.S.AMBIKA DEVI** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.2.2019, THE COURT ON 13.3.2019 PASSED THE FOLLOWING:** **Crl.Appeal 804/2012** 2 ## **JUDGMENT** A.M.Babu, J 1. Appellant is a life convict. He was convicted and sentenced for offences punishable under Secs 201, 302 and 392 of the Indian Penal Code (IPC). He was the accused in S.C.527/2009 on the file of the court of session, Alappuzha division. He was tried, convicted and sentenced by the first additional sessions judge, Mavelikkara. 2. Prosecution case is summarized below : It was on the night of 4/5.6.2008 the incident. The victim of the incident was one Pankajakshy aged 64 years. She was brought to the house of the appellant by him. He had the intention to commit rape on her, robe her and kill her. He attacked her. He pushed her down. Sat on her. Beat several times on her face. Attempted to commit rape on her. He mixed an insecticide called furadan with water and administered it to her. She died at 1.00 'O' clock in the same night. He robbed her gold and other ornaments. He dragged the dead body to the property of one Sivaraman. The appellant cut the stomach of the corpse, tied the corpse with two stones and immersed the dead body in the water in the waterlogged portion of **Crl.Appeal 804/2012** 3 the aforesaid property. He pledged a gold ring of Pankajakzhy. He hid the stolen ornaments and a few other belongings of hers. 3. FI statement was given. Case was registered. Investigation was conducted. Charge-sheet was filed. The case was committed to the court of session. It was made over to the first additional sessions judge at Mavelikkara who tried the case. 4. After hearing both sides, the learned additional sessions judge framed charges against the appellant under Secs 201, 302, 392 and 511 of 376 of IPC. The appellant pleaded not guilty to the charges. He claimed to be tried. 5. The prosecution examined PW1 to PW17. Exts P1 to P28 were marked. MO1 to MO26 were identified and marked. The appellant was examined under Sec.313 of the Code of Criminal Procedure (Cr.P.C) on completion of the prosecution evidence. He denied the incriminating evidence and circumstances brought against him. He was not acquitted under Sec.232 of Cr.P.C. He was therefore called upon to enter on his defence and adduce evidence. He did not produce any evidence. **Crl.Appeal 804/2012** 4 6. The trial court found evidence insufficient to find the appellant guilty under Sec.511 of 376 of IPC. He was found guilty under Secs 201, 302 and 392 of IPC. He was sentenced to imprisonment for life and a fine of Rs 15,000/- under Sec.302 of IPC, rigorous imprisonment for five years under Sec.392 of IPC and rigorous imprisonment for one year under Sec.201 of IPC. The sentences were directed to run concurrently only. Sentence in default of payment of fine was also imposed. 7. We have heard the learned senior counsel Sri.Grashious Kuriakose who appears for the appellant. The learned public prosecutor Smt.S.Ambika Devi was also heard. 8. The prosecution has no eyewitness as nobody witnessed the alleged incident. The prosecution relies on circumstantial evidence to prove the complicity of the appellant. The circumstances relied on by the prosecution are these, namely, (i) the appellant had close acquaintance and association with the victim, (ii) a gold finger ring of the victim was pledged by the appellant, (iii) a stud and three chains which belonged to the victim were recovered at the **Crl.Appeal 804/2012** 5 instance of the appellant, and consequent to the information given by him, from the place where those ornaments were concealed, (iv) an umbrella, two underskirts, a blouse and a tiffin box, which too belonged to the victim, were also recovered as produced by the appellant from the place where those articles were hidden, (v) the insecticide commonly known as furadan which caused the death of the victim was purchased by the appellant and (vi) he himself was the person who showed the place of occurrence to the investigating officer. 9. PW5 was the person who saw the dead body first. He saw it on 6.6.2018 in the property of PW1 when the former went there to cut grass. PW5 informed PW1 and both found the dead body floating on the water in the waterlogged portion of the property. PW5 spoke that the dead body floated in prone position. PW1 and PW5 went to the police station and the latter gave Ext P3 FI statement. It was recorded by PW26 who was the sub-inspector of Kareelakulangara police station. He registered Ext P3(a) FIR under Sec.174 of Cr.P.C. He started investigation. He also saw the dead body floated in prone position. The body was taken from water by PW22 and another. PW26 conducted inquest and prepared Ext P10 **Crl.Appeal 804/2012** 6 inquest report which PW11 signed as a witness. PW18 conducted post-mortem examination. Ext P15 is the autopsy report. The investigation was taken over by PW27 who was the inspector of Kayamkulam police circle. He arrested the appellant on 12.6.2008. PW27 concluded the investigation and filed the charge-sheet. 10. It came out during the investigation that the dead body was that of one Pankajakzhy. PW22 who took the corpse from water spoke that the cloths seen on it were a yellow blouse, a yellow saree and a braziar. The witness identified all the three aforesaid material objects which were marked as MOs 7, 8 and 11 respectively. PW22 spoke to a few more articles found on the dead body which were a silver hip chain, a finger ring made of copper and a pin of a stud on one ear. PW22 identified MO13 silver hip chain. PW26 who initially investigated the case and who seized the aforesaid material objects deposed that MO7 yellow blouse, MO8 yellow saree, MO11 braziar and MO13 silver hip chain were found on the corpse. PW6, the daughter-in-law of Pankajakzhy, deposed that MO7 blouse, MO8 saree, MO11 braziar and MO13 silver hip chain were the belongings of Pankajakzhy. The witness identified those material objects. PW6 and Pankajakzhy were residing in the **Crl.Appeal 804/2012** 7 same house. PW6 deposed that MO7 and MO8 were the yellow blouse and yellow saree worn by Pankajakzhy when she left the house. The prosecution succeeded in proving that the dead body found in the property of PW1 on 6.6.2008 was that of Pankajakzhy. The said fact was not disputed by the defence at the trial. 11. It cannot be disputed that Pankajakzhy had a homicidal death. PW22 spoke to what he saw when the dead body was lifted by him from water and kept on the ground. He spoke that the abdomen of the body was cut and that the intestine protruded. PW22 deposed that the legs of the corpse were found tied together with the saree to which was tied a stone. According to him, another stone was inserted inside the braziar. PW22 identified MO19 and MO20 to be those stones. PW26, the sub-inspector, also spoke in the same lines. The manner in which the dead body was found would make it clear that somebody committed murder of Pankajakzhy and immersed her dead body in water after taking precautions to see that the body would not float on water. The prosecution proved that Pankajakzhy was murdered. 12. Autopsy was conducted by PW18 who was working as **Crl.Appeal 804/2012** 8 lecturer in forensic medicine at the medical college hospital, Alappuzha. Ext P15 is the autopsy report. PW18 spoke in court and stated in Ext P15 that the incised wound found on the abdomen of the corpse did not show any ante-mortem features. The prosecution has no case that the said wound was inflicted to kill the victim. According to the prosecution, it was a post-mortem injury made by the appellant to see that the dead body did not float on water. The prosecution alleged that the appellant cut the stomach of the dead body with MO1 knife. The knife was found when PW2 dewatered the waterlogged area in PW1's property as directed by PW26. But the prosecution is without evidence to prove that MO1 is the knife of the appellant. No witness spoke that it was the knife of the appellant or that it was seen in his hands at any point of time. MO1 is no way useful to the prosecution to prove the guilt of the appellant. 13. The prosecution contends that the appellant had close acquaintance and association with Pankajakzhy. This is one of the circumstances pressed into service by the prosecution against the appellant. It is alleged that the appellant used to pledge the ornaments of Pankajakzhy whenever the former was in need of **Crl.Appeal 804/2012** 9 money. The prosecution attempted to prove only one instance of Pankajakzhy pledging her gold chain for giving money to the appellant. The prosecution relies on the evidence of PWs 6, 12 and 13 to prove the said allegation. PW6, the daughter-in-law of Pankajakzhy, knows the appellant and she identified him in court. PW6 did not depose from her direct knowledge to any acquaintance or association between the appellant and Pankajakzhy. According to PW6, she was informed by Suseela (PW12) that Pankajakzhy had given her gold chain to the appellant to pledge. The said evidence of PW6 as heard from PW12 is nothing but hearsay evidence and therefore liable to be discarded. PW12 spoke that she was told by Pankajakzhy that the gold chain of Pankajakzhy was given to the appellant for pledging. The said evidence of PW12 was not challenged in cross-examination. PW13 gave vital evidence in this connection. She was running a business under the name and style Drisya Financiers. She stated that lending money accepting gold as security was her business activity. She knew Pankajakzhy as she deposed. PW13 spoke that Pankajakzhy had pledged her gold chain with her (PW13) on 22.4.2008 for Rs 10,000/-. It was also the evidence of PW13 that the pledge was redeemed by the pawner on 3.6.2008. PW13 stated **Crl.Appeal 804/2012** 10 that on 2.6.2008 she was informed by Pankajakzhy that the pledge would be redeemed on the next day and that the appellant would bring the money. PW13 deposed that she knew the appellant as well. Going by the evidence of PW13, on 3.6.2008 Pankajakzhy came first and the appellant came after some time. PW13 spoke that the appellant brought Rs 10,300/- which was inclusive of the interest on the money lent. The appellant and Pankajakzhy left after redeeming the pledge, said PW13. The transaction spoken to by PW13 was entered in Ext P13 ledger at page No.193 which was marked as Ext P13(a). Ext P11 is the pawn ticket pertaining to the said transaction. PW6, the daughter-in-law of Pankajakzhy, identified MO2 to be the gold chain of the latter. It was identified by PW13 as well. The same is MO2, but mistakenly recorded as MO3 in the deposition of PW13. The evidence of PW13 and Exts P11 and P13 prove that MO2 was pledged by Pankajakzhy herself. PW13 proved that the appellant was also present at the time of redemption of the pledge, that the money was brought by the appellant and that both of them left the premises of PW13 together. The prosecution proved the acquaintance and association of the appellant with Pankajakzhy. Such acquaintance and association are not a disputed fact. Acquaintance of the appellant **Crl.Appeal 804/2012** 11 with Pankajakzhy was admitted by the appellant at the time of his examination under Sec.313 of Cr.P.C. It was also stated by him during such examination that he had once pledged her gold chain. But the closeness of Pankajakzhy and the appellant cannot be considered a vital circumstance to prove the complicity of the latter. Such closeness is not a sure incriminating circumstance against the appellant. 14. As already said and found, the deceased had a homicidal death. The prosecution alleges the cause of death to be poisoning. The poison was contented to be an insecticide called furadan. According to the prosecution, the appellant mixed furadan with water and administered it to the victim. The circumstance relied on by the prosecution is that furadan which caused the death of the victim was purchased by the appellant. In order to establish the said circumstance, the prosecution has to establish that the intake of furadan was the cause of death. 15. In order to prove the cause of death to be poisoning by furadan, the prosecution relies on the evidence of PW18 who conducted autopsy. He opined that the post-mortem findings were **Crl.Appeal 804/2012** 12 consistent with death due to poisoning. But he did not say the basis for his such opinion. We carefully read his evidence as well as Ext P15 autopsy report. We did not see anything in his evidence and report to accept his opinion. He stated that the finger nails were blue. But that by itself is not decisive. PW18 spoke that each chest cavity contained 100 ml of bloodstained fluid. It was also stated by him that the stomach contained an unidentified semisolid material mixed with violet coloured particles having no unusual smell. This much evidence of PW18 does not justify his opinion that the post-mortem findings were consistent with death due to poisoning. The bloodstained fluid contained in the chest cavity and also the viscera were preserved by PW18 and he sent them for chemical analysis. The chemical analysis report on the bloodstained fluid and viscera is absolutely necessary to find whether the death was due to poisoning and whether the poison was furadan. That was why PW18 himself stated in Ext P15 and spoke in court that the final opinion was reserved pending report of chemical analysis. PW18 did not give his final opinion and he had no occasion to do so. As deposed by him, he did not see the report of chemical analysis. It is not possible to conclude from the evidence of PW18 that the cause of death was poisoning by reason **Crl.Appeal 804/2012** 13 of the intake of furadan. 16. Even the prosecution does not know what happened to the viscera allegedly forwarded for chemical examination. No report of chemical examination on viscera was let in evidence. PW27 who investigated the case was asked in cross-examination about the chemical examination report. He claimed to have seen the chemical examination report on the viscera and bloodstained fluid. He has even gone to the extent of stating that Ext P27 report of chemical examination pertains to all items collected at the time of post-mortem examination. But there is no reference to the viscera in Ext P27. It is a report on two items, namely, (i) a bloodstained gauze contained in a sealed bottle which was labelled “gauze dried with bloodstained fluid” and (ii) a vaginal swab and a vaginal smear. Ext P27 recites that semen and spermatozoa were not detected in the vaginal swab and smear. It further recites that the group of bloodstain on the cotton gauze could not be ascertained due to inconclusive test results. Ext P27 has nothing to do with the viscera. Ext P27 specifically states that the bloodstained gauze was sent to the laboratory for blood group determination. It was forwarded not for detecting any poison in blood. The only other **Crl.Appeal 804/2012** 14 chemical examination report exhibitted on the side of the prosecution was Ext P28. It does not pertain to the viscera and the bloodstained fluid. The prosecution failed to produce scientific evidence to prove that the intake of furadan was the cause of death. This failure destructs one of the circumstances relied on by the prosecution. 17. PW26, the sub-inspector, seized MO22 and MO23 bottles. He spoke that MO23 bottle contained furadan. Ext P28 chemical examination report states that the said bottle contained 120 ml of violet coloured liquid with some violet granular material. The result of chemical examination shown in Ext P28 is that carbofuran a carbamate insecticide which is commonly known as furadan was detected in MO23. It is thus proved that the liquid in MO23 was furadan. But it is not clear as to where exactly MO23 bottle was found lying and from where it was seized. PW26 did not take the care to state as to where did he see MO23 lying or kept or from where did he seize it. In cross-examination he spoke that he did not state in the mahazar as to where the material objects other than those found on the dead body were seen. In fact, PW26 did not prepare any mahazar when he allegedly seized MO23 and a **Crl.Appeal 804/2012** 15 few other articles. The only mahazar prepared by him was Ext P1. It was prepared at the time of seizure of MO1 kinfe. Thre is no evidence as to where did he see MO23 to seize it. Therefore detection of furadan in MO23 cannot be taken as an incriminating evidence against the appellant. Detection of furadan in MO23 bottle does not take the prosecution to its desired destination in the absence of any evidence to find that the cause of death was the intake of furadan. 18. PW15 is a trader selling manure and pesticides at his shop. He was examined to prove that it was from him the appellant purchased furadan. PW15 deposed that he knew the appellant as the appellant used to come to the shop of PW15 to buy manure. PW15 spoke that from him the appellant purchased 3 kgs of manure and 250 grams of furadan in the 1[st] week of June 2008. In view of our findings at paragraphs 15 to 17 of this judgment, purchase of furadan by the appellant is not an incriminating evidence against him. That apart, as argued by the learned senior counsel appearing for the appellant, what the appellant purchased was not furadan alone, but manure as well. The prosecution succeeded only in proving that furadan was purchased from PW15 **Crl.Appeal 804/2012** 16 by the appellant in the 1[st] week of June 2008. The prosecution failed to establish as to where exactly MO23 containing furadan was found lying or kept. It also failed in proving the cause of death of Pankajakzhy to be the intake of furadan. The the prosecution failed to prove the key circumstance relied on by it. 19. MO3 is a finger ring made of gold. PW6 identified it. She spoke that it was the gold ring worn by her mother-in-law, Pankajakzhy. The evidence of PW6 identifying MO3 and its ownership were not challenged in her cross-examination. The prosecution proved that MO3 was the gold ring of Pankajakzhy. 20. The appellant was arrested by PW27. Soon after the arrest the latter searched the person of the former. PW27 found Ext P4 in the pocket of the shirt worn by the appellant. PW27 seized Ext P4. Ext P4 is a pawn ticket. It shows the pledge of a gold finger ring by the appellant with Kannattu Arun Finance on 4.6.2008 for Rs 800/-. PW7 was the cashier and manager in charge of Kannattu Arun Finance at the relevant time. He spoke that on 13.6.2008 the police came to Kannattu Arun Finance with the appellant. The police showed Ext P4 ticket to PW7. He deposed that Ext P4 was **Crl.Appeal 804/2012** 17 issued to the appellant when the appellant pledged a gold ring on 4.6.2008. PW7 produced before the police Ext P5 which was the counterfoil of Ext P4. Ext P7 is the gold loan ledger maintained in Kannattu Arun Finance. PW27 seized Ext P7 from PW7 and since it was necessary for daily use it was returned to PW7 on Ext P6 bond. PW7 produced Ext P7 ledger before court at the time of his examination in court. Page 330 of Ext P7 contains the entry regarding the pledge of MO3 ring. The said page was marked as Ext P7(a). Ext P7(a) shows the pledge of a one gram gold ring by the appellant for Rs 800/- on 4.6.2008. PW7 identified the appellant and MO3 ring in court. Pledging of the gold ring of Pankajakzhy by the appellant on 4.6.2008 was admitted by him in his examination under Sec.313 of Cr.P.C. The prosecution proved that MO3 gold ring of Pankajakzhy was pledged by the appellant on 4.6.2008. 21. But we are unable to accept the prosecution version that the pledging of MO3 ring by the appellant on 4.6.2008 is a circumstance against him proving his guilt. MO3 was not a stolen property. According to the prosecution, the incident was on the night of 4/5-6-2008 and Pankajakzhy died at 1.00 am in the same **Crl.Appeal 804/2012** 18 night. Kannattu Arun Finance transacts its business between 9.00 am and 5.00 pm as stated by PW7. Going by his evidence, the appellant pledged MO3 on 4.6.2008 before noon. At that time, even according to the prosecution, Pankajakzhy was alive and no robbery was committed. Therefore the version of the appellant in his examination under Sec.313 of Cr.P.C that MO3 was given to him by Pankajakzhy for pledging appears to be the more probable version. Pledging of MO3 ring of Pankajakzhy by the appellant on 4.6.2008 proves nothing beyond the acquaintance and association between them which cannot be considered an incriminating circumstance against him. 22. According to the learned trial judge, pledging of MO3 by the appellant on 4.6.2008 was a circumstance against the appellant proving his guilt. The trial court accepted the argument of the public prosecutor that the appellant was with Pankajakzhy after her leaving the house of PW10 and that there was no evidence as to when had their company broken (vide paragraph 8 of the impugned judgment). Another argument which was accepted by the trial court was that as Pankajakzhy was with the appellant at the time of pledging MO3 ring, it was for him to explain and **Crl.Appeal 804/2012** 19 establish when and how their company had broken (see paragraph 8 of the impugned judgment). The trial court found that the appellant had contact with Pankajakzhy after the latter left the house of PW10. For these reasons the trial court considered the pledging of MO3 by the appellant as an incriminating circumstance against him. We are afraid, we are unable to support the aforesaid findings of the trial court for reasons given in the next two paragraphs of this judgment. 23. Pankajakzhy left her house on 3.6.2008 as deposed by PW6. The only witness who saw Pankajakzhy and the appellant together on 3.6.2008 was PW13 who saw them at the time of redemption of MO2 chain. The appellant and Pankajakzhy left the premises of PW13 together as deposed by the witness. But Pankajakzhy did reach the house of PW10 on 3.6.2008 and stayed there. She left the house of PW10 in the morning of 4.6.2008. There is no evidence that Pankajakzhy and the appellant were seen together at any time on 4.6.2008. There is no evidence whatsoever for the prosecution to argue that Pankajakzhy was with the appellant when MO3 ring was pledged. PW7 who received MO3 as pledge spoke that he did not see anybody with the appellant. PW7 **Crl.Appeal 804/2012** 20 deposed further that the appellant alone came to him (PW7) to pledge the ring. According to PW27, the investigating officer, the only person who saw the appellant and Pankajakzhy together on 4.6.2008 was an autorikshaw driver. The said person could not be located by PW27 as deposed by him. The materials and arguments considered by the trial court do not support its conclusion that Pankajakzhy was with the appellant on 4.6.2008. When that be so, the question of the appellant explaining or establishing as to how and when the company had broken does not at all arise. 24. Pankajakzhy stayed in the house of PW10 on 3.6.2008 and left that house at 8.30 am on 4.6.2008. PW10 deposed so. The prosecution case is also the same. The public prosecutor did not properly elicit from PW10 that MO3 ring was worn by Pankajakzhy when she left the house of PW10. Instead, a portion of the statement of PW10 recorded under Sec.161 of Cr.P.C was as such put to her and she was asked whether she had stated to the police that Pankajakzhy wore MO3 ring besides other ornaments when she left the house. The witness deposed that she did state so to the police. When such a question was put to PW10, permission of the court under Sec.154 of the Evidence Act was not taken. Such a **Crl.Appeal 804/2012** 21 permission was taken only after putting a few more questions. What the public prosecutor did was to use the statement of PW10 recorded under Sec.161 of Cr.P.C for corroboration which was impermissible under Sec.162 of Cr.P.C. There is no legal evidence in the deposition of PW10 that Pankajakzhy wore MO3 ring when she left the house of PW10 on 4.6.2008. There is no evidence as to whether MO3 was given to the appellant by Pankajakzhy on 3.6.2008 or 4.6.2008. Therefore pledging of MO3 by the appellant on 4.6.2008 cannot be read as an incriminating circumstance against him. 25. Another circumstance relied on by the prosecution is that the appellant himself showed the place of occurrence to the investigating officer. PW27, the investigating officer, deposed that in the confession statement the appellant stated that he would show the place of occurrence. It was also deposed by PW27 that the place of occurrence was pointed out by the appellant himself. There is an element of confession to a police officer when a person accused of an offence points out the locale of crime to the investigating officer. Therefore the statements of PW27 in court that the appellant offered to show the place of occurrence and that **Crl.Appeal 804/2012** 22 it was shown to him (PW27) by the appellant are inadmissible in evidence as is hit by Secs 25 and 26 of the Indian Evidence Act. The alleged statement of the appellant that he would show the place of occurrence and him allegedly showing it to the investigating officer would not fall within the ambit of Sec.27 of the Evidence Act. It is so because the alleged disclosure statement of the appellant, referred to above, did not lead to the discovery of any incriminating fact against him. When an accused points out the place of occurrence to the investigating officer, what the former does is to give a statement to the latter under Sec.161 of Cr.P.C. Therefore the evidence of PW27 that the place of occurrence was shown to him by the appellant is hit by Sec.162 of Cr.P.C. As Sec.27 of the Evidence Act is not attracted, the statement of PW27 reproducing the alleged statement of the appellant that he would show the place of occurrence is also not admissible in evidence in view of Sec.162 of Cr.P.C. The appellant is not liable to be convicted on the basis of the inadmissible evidence tendered by PW27. 26. What remains to be considered is the recovery of certain articles which were marked as MO2, MO4 to MO6, MO9, MO10, **Crl.Appeal 804/2012** 23 MO12, MO14 and MO18. PW27 arrested the appellant on 12.6.2008. Exts P23 and P24 are the memoranda of arrest and inspection respectively prepared by PW27. He deposed to a disclosure statement made by the appellant. The disclosure statement as deposed to by PW27 was that a gold chain, two fake gold chains and a stud were kept inside the goat house which was on the eastern side of his house and that he would take those chains and stud and produce the same. According to PW27, on the basis of the said disclosure statement and as led by the appellant he (PW27) along with the appellant reached the said goat house which was situated on the north-eastern corner of the house of the appellant. PW27 spoke that the appellant removed three bricks, which were placed one above the other, kept on the eastern side of the wooden leg on the north-western corner of the goat house. After removing the bricks, said PW27, the appellant took a pack wrapped in an old English newspaper and gave it to PW27. PW27 unwrapped the pack and saw in it three chains and a stud of golden colour. He stated that he seized those chains and the stud in the presence of witnesses. It was also the evidence of PW27 that he utilized the services of a gold appraiser who informed that the stud and one of the chains were made of gold and that the other **Crl.Appeal 804/2012** 24 two chains were of spurious gold. PW27 spoke that MO2 was the gold chain, that MO4 was the gold stud and that MO5 and MO6 were the imitation gold chains he seized. He prepared Ext P2 mahazar at the time of seizure of MO2 and MO4 to MO6. The disclosure statement is extracted in Ext P2. 27. Nothing was brought out in the cross-examination of PW27 to suspect the veracity of his evidence on the recovery of MO2 and MO4 to MO6. Only five questions were put to PW27 in crossexamination to challenge the recovery. One question was that going by Ext P2 all the legs of the goat house were made of wood. PW27 deposed that Ext P2 did not mention anything about the other three legs of the goat house. The said question put to PW27 was not relevant at all. The next question put to PW27 to challenge the recovery was in the shape of a suggestion. It was suggested to him that the recovery effected by him as per Ext P2 was not a recovery under Sec.27 of the Evidence Act. PW27 denied the suggestion. The third question was also a suggestion. It was put to PW27 that Ext P2 was a false document prepared at the police station. The said suggestion was also denied by PW27. The fourth question was whether there were bricks at the place of recovery **Crl.Appeal 804/2012** 25 other than the three bricks referred to by him. He answered in the negative. The fifth and the last question was a suggestion to the effect that it was a false recovery. The said suggestion too was denied by PW27. No further question was put to PW27 to attack the recovery of MO2 and MO4 to MO6. The defence could no way demolish the evidence of PW27 on recovery of the aforesaid material objects. The defence did not gain anything from the crossexamination of PW27. His evidence on recovery of three chains and a stud inspires confidence. It is admissible in evidence under Sec.27 of the Indian Evidence Act, provided there was discovery of an incriminating fact against the appellant. 28. PW23 was one of the attestors to Ext P2 mahazar relating to the seizure of MO2 and MO4 to MO6. He spoke that he signed Ext P2 as a witness. He identified his signature in it. He stated that Ext P2 was prepared looking at three chains and a stud wrapped in a paper. He is a mason and he deposed that he was engaged in the construction of a house which was towards the north of the house of the appellant. PW23 spoke that the appellant took the chains from the goat house and gave them to the police. The witness stated that those articles were wrapped in an English newspaper **Crl.Appeal 804/2012** 26 and that the pack was kept under three bricks. PW23 identified the appellant in court. 29. In cross-examination PW23 reiterated what he deposed in his examination-in-chief. He has stated in cross-examination that his house is six or seven kilometres away from the house of the appellant. But at the relevant time he was engaged as a mason in the construction of a house which was 200 metres away from the house of the appellant. It is true that PW23 spoke in crossexamination that the chains were wrapped in a white paper. We do not consider it sufficient to suspect the evidence of PW23 on recovery. He gave evidence in court three years after having witnessed the recovery. Therefore such minor discrepancy may happen. That apart, he did state in his examination-in-chief that the wrapper was an English newspaper. His evidence is believable and acceptable. His evidence on recovery of ornaments sufficiently and satisfactorily corroborates the evidence of PW27 on the same point. 30. The prosecution should prove that MO2 and MO4 to MO6 were the ornaments of Pankajakzhy. Then only it can be said that **Crl.Appeal 804/2012** 27 there was a discovery of an incriminatory fact against the appellant. If not proved so, the very recovery of those articles would be inconsequential. Pankajakzhy and her daughter-in-law (PW6) were residing under the same roof. The evidence of PW6 suggesting so was not disputed in cross-examination. She asserted that she could identify the belongings of her mother-in-law. Her such assertion was also not challenged in cross-examination. The witness identified MO2 and MO4 to be respectively the gold chain and stud of her mother-in-law. MO5 and MO6 were identified by PW6 as the spurious gold chains of Pankajakzhy. In crossexamination PW6 spoke that she was not aware of the weight of the gold chain and the type of the design of all the three chains. That does not mean that the ornaments identified by her were not the ornaments of her mother-in-law. Apart from asking about the weight and the design of the ornaments, no question was put to PW6 in cross-examination disputing her evidence that the stud and the chains belonged to her mother-in-law. Not even a suggestion was put to PW6 that those ornaments were not those of Pankajakzhy. The prosecution through PW6 proved that MO2 and MO4 to MO6 were the ornaments of Pankajakzhy. **Crl.Appeal 804/2012** 28 31. Pankajakzhy was the neighbour of PW12. PW12 identified MO2 to be the gold chain of Pankajakzhy. The witness spoke in cross-examination that she did not know the length of MO2 and its design. But she asserted that MO2 was the gold chain of Pankajakzhy and that she had seen Pankajakzhy wearing it. PW12 corroborated the evidence of PW6 to the extent that MO2 was the gold chain of Pankajakzhy. 32. As is seen already, the evidence of PW13 and Ext P13(a) page in Ext P13 pawn ledger prove that Pankajakzhy herself had pledged MO2 chain on 22.4.2008 and redeemed it on 3.6.2008. Ext P11 pawn ticket also proves that MO2 was pledged by Pankajakzhy with PW13. Exts P11 and P13(a) and also the evidence of PW13 prove MO2 to be the property of Pankanakzhy. 33. We do not find anything in the evidence to suspect the recovery of MO2 and MO4 to MO6. Those material objects were recovered based on the information given by the appellant and at his instance. He himself had taken those ornaments from the place where they were hidden and he only handed over those articles to the investigating officer. Those ornaments were proved to be the **Crl.Appeal 804/2012** 29 ornaments of Pankajakzhy. The disclosure statement made by the appellant and the consequent recovery of the ornaments of Pankajakzhy are admissible in evidence under Sec.27 of the Indian Evidence Act. It is a vital incriminating circumstance against the appellant proving his guilt. 34. PW27 spoke to another disclosure statement made by the appellant. It was that the appellant would show the place where the underskirts, blouse, umbrella and the tiffin box were kept. Based on the said information given by the appellant and as led by him, said PW27, they reached the waterlogged area near the house of the appellant. According to PW27, from the water the appellant had taken a plastic cover in which were kept a blouse, an umbrella, a tiffin box and two underskirts. PW27 said that he seized those articles and prepared Ext P9 seizure mahazar. The disclosure statement extracted in Ext P9 was marked as Ext P9(a). Care was not taken by the public prosecutor to get the aforesaid articles identified by PW27. However, PW6 identified those articles except the tiffin box. The underskirts were identified and marked as MO9 and MO10. MO12, MO14 and MO18 were respectively the blouse, umbrella and the plastic cover. The tiffin box was not seen **Crl.Appeal 804/2012** 30 identified and marked at the trial. In cross-examination PW27 stated that the plastic cover containing the other material objects were immersed in water. That exactly was the case of the prosecution. Apart from eliciting the said fact from PW27, his evidence on disclosure statement and the recovery was not challenged in cross-examination. No suggestion was even put to him challenging the said disclosure statement and the recovery. PW27 proved the disclosure statement and the recovery. 35. MO9, MO10, MO12, MO14 and MO18 were identified in court by PW6 as stated already. She spoke that MO9 yellow underskirt, MO10 white underskirt, MO12 brown blouse and MO14 violet coloured umbrella were the belongings of her mother-in-law. It was also the evidence of PW6 that when left the house, her mother-inlaw had taken the umbrella, the blouse et cetera in MO18 plastic cover. In cross-examination PW6 repeated that Pankajakzhy kept the blouse, umbrella et cetera in the plastic cover while leaving the house. PW6 added that she had given the blouse to Pankajakzhy to keep in the cover. The evidence of PW6 identifying MO9, MO10, MO12 and MO14 as the belongings of her mother-in-law is only to be accepted. But her evidence suggests that she had no material to **Crl.Appeal 804/2012** 31 identify the plastic cover. There is no reference in the disclosure statement of the appellant to the plastic cover. For these two reasons we exclude MO18 from consideration. The evidence of PW6 that MO9, MO10, MO12 and MO14 belonged to her motherin-law was not challenged in cross-examination. 36. MO9, MO10, MO12 and MO14 have been proved to be the belongings of Pankajakzhy. Those material objects were recovered at the instance of the appellant from the place of concealment and consequent to the information given by him. Sec.27 of the Indian Evidence Act is attracted. The recovery of the aforenoted articles is another vital circumstance proved against the appellant. 37. Of different circumstances relied on by the prosecution, it could prove only two of them, namely, (i) recovery of MO2 and MO4 to MO6 and (ii) recovery of MO9, MO10, MO12 and MO14. Both sets of recoveries were effected based on the disclosure statements made by the appellant and at his instance. He himself had taken those material objects from the respective places of concealment. The two circumstances proved against the appellant are independent circumstances which cannot be linked to the **Crl.Appeal 804/2012** 32 other circumstances relied on by the prosecution. The two proved circumstances are sufficient in our opinion to prove the complicity of the appellant. It cannot be insisted on that the prosecution should prove all the circumstances relied on by it when one is not connected to the other. This court has held that the conclusiveness of the circumstances is that what matters and not the number of links. The decision is **Babu v. State of Kerala (2016 (1) KLD 361)** . The decision holds further that there can be cases where the chain of circumstances may be complete with two or three links. The evidence admissible under Sec.27 of the Indian Evidence Act is sufficient to prove the guilt of the appellant since such evidence inspires confidence. We place reliance on the decision in **Ningappa Yallappa Hosamani v. State of Karnataka [(2009) 14 SCC 582].** 38. The two sets of recoveries prove the appellant to be the murderer. The recovery of the ornaments proves robbery as well. He who committed murder and robbery immersed the dead body in water after taking necessary precautions to see that it would not float on water. He thereby caused the evidence of commission of murder to disappear with the intention of screening himself from **Crl.Appeal 804/2012** 33 legal punishment. He is proved to have committed the offences punishable under Secs 201, 302 and 392 of IPC. For murder the trial court imposed only the minimum punishment of imprisonment for life provided under Sec.302 of IPC. The sentences for the other two offences imposed by the learned trial judge cannot be considered harsh or disproportionate. The appeal fails and what it deserves is only a dismissal. 39. Dismissed. Sd/- A.M.SHAFFIQUE Judge Sd/- A.M.BABU Judge Mrcs/4.2.19 /True copy/ P.S.To Judge