Justin @ Joy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** **CRL.A.No.1120 OF 2015** **AGAINST THE JUDGMENT IN SC 240/2011 DATED 21-08-2015 OF ADDITIONAL SESSIONS COURT,NEYYATTINKARA** **AGAINST THE ORDER/JUDGMENT IN CP 110/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEYYATINKARA** **CRIME NO.186/2007 OF CBCID, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED (IN CUSTODY):** **JUSTIN @ JOY AGED 30 YEARS S/O. THOMSON, JOY BHAVAN, NEDIYAKALA, CHYAYKOTTUKONAM, MARUTHATHOOR DESOM, NEYYATTINKARA TALUK** **BY ADVS. SRI.RAJIT SRI.P.ANOOP (MULAVANA)** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM** ## **SR.P.P- SRI. ALEX.M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-082019, THE COURT ON 17-12-2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.1120/15 -:2:- ## **J U D G M E N T** Dated this the 17[th] day of December 2019 ## _**Shaffique, J.**_ This appeal is filed against judgment dated 21/8/2015 in SC No.240/2011 on the file of the Additional Sessions Court, Neyyattinkara. By the impugned judgment, accused was convicted u/s 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of `50,000/- in default to undergo rigorous imprisonment for a term of one year. 2. Case of the prosecution is as follows:- The accused was employed as a part time sweeper in Kerala State Financial Enterprises, Neyyattinkara Branch where the deceased Asokan was also employed as a Higher Grade Peon. They were friends, but later the accused entertained enmity in his mind, when he suspected that the deceased was having an affair with a lady, who was working in a photostat shop downstairs the same building where the KSFE branch, Neyyattinkara was functioning and whom the accused wanted to marry. In the meanwhile, the accused was transferred to Balaramapuram Crl.Appeal No.1120/15 -:3:- branch of Kerala State Financial Enterprises. While so, the above lady whom the accused loved, started to avoid his calls. She also returned the sim card, some ornaments, photograph etc., presented by the accused and expressed her intention to wind up the love affair. The accused believed that it was due to the affair, the deceased Asokan had with the above lady that she started avoiding him. On account of such enmity, the accused decided to do away with the deceased. On 11/7/2007, he came in an Ambassador car with registration number KRV 7578, to the KSFE branch, Balaramapuram, affixed his signature in the attendance register to make it appear that he was on duty in that office, and by about 10 a.m of 11/7/2007, he drove to Neyyattinkara in the above car without informing any of the officers of KSFE, Balaramapuram and waited in the above car by the side of National Highway near to KSFE, Neyyattinkara Branch. By about 11.00 a.m., the deceased came out of KSFE branch, Neyyattinkara carrying an amount of `4,00,000/- intended to be deposited at Trivandrum Co-operative Bank, Neyyattinkara Branch. On the invitation of accused, deceased got into the above car and sat on the front seat. The vehicle was driven to a Crl.Appeal No.1120/15 -:4:- bye road from Pathamkallu to Kokkidi which runs amidst wetland (Ela) planted with tapioca cultivation on either side. The accused stopped the car, and went out pretending to be attending a phone call. Thereafter he came around the rear side of that car, opened the rear left door and put a ligature (plastic rope) around the neck of Asokan from behind, and tightened the same strangulating the deceased. The deceased was also smothered with a cloth kept in that car and thus, he caused death of Asokan at about 11.20 a.m. Thereafter, the accused dragged the body of the victim through the tapioca plantation on the eastern side of the road and disposed off the same there. The accused then returned to the KSFE, Balaramapuram Branch by about 12.30 noon in the same car. By about 1.00 p.m, the accused went to a hardware shop in the same car driven by him and purchased a spade from there. Thereafter, he again went back in that car to the spot where he murdered the victim, for the purpose of burying the dead body inside the tapioca plantation where he had abandoned it, a few hours ago. Seeing that people had gathered near the area, the accused left the place leaving the car. He also took an amount of `2,100/- from `4,00,000/- which the deceased Crl.Appeal No.1120/15 -:5:- had kept in a plastic cover inside the car. The accused then hired an autorickshaw and went to a shop from where he purchased pesticide and thereafter proceeded to Trivandrum in the same autorickshaw. On the way to Trivandrum, he consumed beer from a foreign liquor shop at Balaramapuram. By about 4 p.m on the same day, the accused reached the house of Mr.Felix and Mrs.Mary at Vazhuthacaud, who considered him as a family friend for the past several years, right from the time when the accused was working as a helper at CMI House, Vazhuthacaud. During the same night, the accused along with the family members of Felix and Mary, went to see a second show at Sreekumar Theatre, Thiruvananthapuram. The expenses for food and film tickets were expended by the accused himself. After second show, while coming back, the accused alighted from the autorickshaw at a place called Mettukada telling the others that he was going to CMI House. However, on the next morning, by about 6.20 a.m., he came to the house of Felix and Mary, climbed up the terrace and lied down there in a drunken stage. The son and daughter of Felix and Mary procured some curd from a nearby house and administered the same to the accused. Thereafter, the accused Crl.Appeal No.1120/15 -:6:- was brought down from the terrace portion of that house by Felix's son and he was laid inside a room, after changing his dress. In the meanwhile, a person from CMI House under the instructions of Police, had telephoned and enquired whether the accused had come to Felix's house. Within a short while, the Police came to that house and took the accused from there. On the way to Neyyattinkara, the Police had got the accused admitted at NIMS Hospital, Neyyattinkara, since he was found to be in a serious condition due to the intake of poison and excessive consumption of liquor. The accused remained in that hospital under police surveillance for about one week. On 19/7/2007, he was arrested from that hospital by the Circle Inspector of Police, Neyyattinkara and was remanded to judicial custody. On 20/9/2007, the investigation was handed over to the CBCID as per the directions of the Government. The Detective Inspector of CBCID filed report before the Magistrate Court for substituting Section 379 instead of Section 397 I.P.C., which was mentioned in the FIR. After the completion of the investigation, the Detective Inspector of Crime Branch CID, HHW-1, laid the charge-sheet before the Court. Crl.Appeal No.1120/15 -:7:- 3. The accused was charge-sheeted for offences under Sections 302 I.P.C. and 379 IPC. In order to prove the case, prosecution examined PW1 to PW52 and placed reliance on Exts.P1 to P66. Defence examined DW1 to DW3 and marked Exts.D1 to D3. MO1 to MO20 were the articles produced and identified. After trial, accused was found guilty and sentenced as stated above. 4. The learned counsel for the appellant/accused would argue that though the prosecution had attempted to prove the presence of accused in the place where the dead body was found, it is clear from the deposition of such witnesses that they were all planted and their evidence is full of discrepancies, omissions and contradictions. It is argued that the accused was not even in the place where the vehicle was seen parked and the possession of the Ambassador car which is considered to be one of the circumstance relied upon by the prosecution was not with the accused at that point of time. The scientific evidence also suffers from various infirmities which were not correctly appreciated by the trial Court. The trial court had placed much reliance on the conduct of the accused which cannot by itself be a circumstance -:8:- Crl.Appeal No.1120/15 to implicate the accused in the fashion. 5. Learned counsel also placed reliance on the judgment of the Apex Court in _**Manthuri Laxmi Narsaiah v. State of Andhra Pradesh**_ [(2011) 14 SCC 117. This judgment is cited to emphasise the fact that in a case of circumstantial evidence, the chain of circumstance has to be spelt out by the prosecution and even if one link in the chain is broken, the accused must get the benefit thereof. _**Kanhaiya Lal v. State or Rajastan**_ [(2014) 4 SCC 715] has been cited to emphasise the point that when a case rests squarely on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. He also placed reliance on the Division Bench judgment of this Court in _**Murali v. State of Kerala**_ (2002 (3) KLT 226), wherein it is held that the prosecution is bound to produce the entire statements obtained from the witnesses u/s 161 Cr.P.C. despite the fact that it is in favour of the accused or in favour of the prosecution. 6. The learned Public Prosecutor however while supporting Crl.Appeal No.1120/15 -:9:- the judgment of the trial Court contended that this is a case in which the accused had taken the victim in a car, committed murder and attempted to bury him in a lonely place. The fact that he was in possession of the Ambassador car stands proved by the oral testimony of the witnesses and there is also clear evidence to prove that he was seen along with the Ambassador car near the place where the dead body was buried. The scientific evidence adduced in the case further strengthens the prosecution case. In so far as the Court below had correctly appreciated the evidence in the case, and had convicted the accused, a different view is not possible taking into account the facts and circumstances in the case. 7. After considering the evidence adduced on behalf of the prosecution, the trial Court found the following circumstances to be proved:- - i. The white Ambassador car bearing Regn.No.KRV 7578 belongs to PW10. ii. Accused had taken the said car from PW10 at 6.30 a.m on 11/7/2007. Crl.Appeal No.1120/15 -:10:- iii. PW3 has seen the accused by around 10.30 a.m on 11/7/2007 near the white Ambassador car and he was engaged in a telephonic conversation. iv. PW6 also saw the accused involved in a telephonic conversation leaning onto the Ambassador car by the side of the road passing through Kokkidi Ela on 11/7/2007 in the morning hours. He also saw another person sitting in the said vehicle. v. PW6 saw the deadbody of the person who was found sitting in the vehicle being taken to the ambulance by the Police. vi. MO18 mobile phone of the accused was found in the dashboard of the car within a short time after the murder took place. vii. PW7 deposed that his worker Sundaram informed him that he saw a person pulling out something by a rope from a car parked in the road passing through Kokkidi ela and it was dragged through tapioca plantation. viii. PW7 proceeded to the said place along with Sundaram Crl.Appeal No.1120/15 -:11:- and he saw a white Ambassador car taking reverse, and it drove off. ix. PW8 gave evidence stating that the accused had come to his shop on 11/7/2007 in a car and purchased a spade in between 12.30 noon and 1.00 p.m. x. MO10 is the spade which was recovered from the Ambassador car. xi. PW16 and PW17 had given evidence that the accused had come to the KSFE office on 11/7/2007 and he was seen in the office after 12.00 noon. xii. The dead body of the deceased was recovered from the tapioca plantation in Kokkidi ela. xiii. The deceased was strangulated by a synthetic rope which was found tied over the body of deceased. MO16 is the said rope. xiv. PW50 had collected plastic rope used for collecting water from the well of the accused's house, which is MO20. As per Ext.P33 report of the Forensic Science Lab, Crl.Appeal No.1120/15 -:12:- Thiruvananthapuram, MO16 and MO20 were identical. xv. The fibres in the plastic ropes recovered from the body of the deceased and the plastic rope recovered from the well of the accused's house were similar. xvi. After the aforesaid incident, the accused reached the house of PW21 wearing the same pants containing mud which he was wearing when he was seen at the place of occurrence in the forenoon. He left from the house of PW21 and came back in the early morning on 12/7/2007 fully drunk. They administered curd to the accused and after sometime, the police came and took him to a private hospital at Neyyattinkara. Mud that was seen in the pants and shoes of the accused was similar. 8. Let us now scan through the evidence adduced by the prosecution. PW1 was the Assistant working at KSFE, Main Branch, Neyyattinkara who tendered the First Information Statement to the Sub Inspector of Police, Neyyattinkara, which is marked as Ext.P1. According to PW1, the deceased who left the KSFE Main Branch, Neyyattinkara for depositing an amount of Crl.Appeal No.1120/15 -:13:- `4,00,000/- in the Bank, did not return even by 12.30 noon of 11/7/2007. The Bank authorities had informed the KSFE office through telephone that the amount had not been deposited, even by 12.30 noon of 11/7/2007. Thereafter, the Manager of the second branch of KSFE, Neyyattinkara is said to have informed the Main Branch through telephone about the news regarding the appearance of a dead body at Kokkidi Ela (wet land) in Athiyannoor, and accordingly PW1 reached the spot and confirmed that it was the body of Asokan. PW1 also noted the presence of an Ambassador car with Regn.No.KRV 7578 in the road passing through the wet land, where the body was found. 9. PW2 is the wife of deceased Asokan. She had identified the pants and shirt worn by the deceased on the day when he breathed his last. The above pants and shirt are marked as MO1 and MO2 through that witness. In addition to that, a foot wear, wrist watch, purse, belt and a pen which belonged to the deceased Asokan were marked as MO3 to MO7 through PW2. 10. PW3 is a daily labourer who is said to have found the accused standing near a white car and talking through telephone at the road near to Kokkidi bridge around 10.30 a.m on Crl.Appeal No.1120/15 -:14:- 11/7/2007. PW3 had also given statement u/s 164 Cr.P.C to the Magistrate with regard to the above aspect. The above statement of PW3 to the Magistrate is marked as Ext.P2 through that witness. 11. PW4 is said to be a worker of Govinda Gardens near to the place where the body of the deceased was found. According to PW4, an elderly worker of Govind Gardens, by name Sundaram, who is now no more, had called her and the other workers in the morning of 11/7/2007 and stated aloud that something is going on and a vehicle is lying there. PW4 stated that she found a white Ambassador car lying there in the road passing through that area. PW4 also stated that the above person by name Sundaram told them that he saw a person being pulled out of the above car and being dragged through the tapioca plantation. PW4 was declared hostile. 12. PW5, another worker of Govind Gardens deposed that Sundaram told them that he saw somebody pulling out something from the car and dragging it through the tapioca plantation. PW5 further stated that when she came there, she saw a white Ambassador car. Crl.Appeal No.1120/15 -:15:- 13. PW6 deposed that on 11/7/2007 while passing through the road from Kokkidi Ela to Plavila he saw an Ambassador car and the accused engaged in a phone call outside the vehicle leaning towards the vehicle. He also saw another person sitting inside that car on the front left side seat. When he returned, after some time he found the same car on the southern side, from the place where it was seen earlier. He did not see anyone nearby. He again came seeing police and crowd, and saw the dead body of a person being taken to the ambulance. PW6, identified the above dead body as that of the person he found sitting on the front left side seat of the car when he passed through that road in the morning. PW6 also identified the pants and shirt worn by the accused at the time when the above witness saw the accused engaged in telephone call outside that car in the morning of 11.7.2007, which are marked as MO8 and MO9. 14. PW7, deposed that Sundaram, a worker of Govind Garden, told him on 11.7.2007, morning that he saw somebody pulling out of a car parked on the road, something tied with rope and it was dragged through the tapioca plantation. When PW7 reached there, a white Ambassador car was taking reverse and Crl.Appeal No.1120/15 -:16:- drove off. A lady worker of Govind Gardens handed over to him a paper slip in which he noted the registration number of the above car as KRV 7578. PW7 instructed Sundaram to find what had been dumped there from that car. After an hour Sundaram informed him that a body wound with plastic rope was found there. PW7 again reached the spot, after the police had come and he understood that the body was that of a person by name Asokan working as Peon in KSFE. PW7 saw the Police recovering cash and a spade from the said car which was found abandoned in the road. 15. PW8 deposed that the accused purchased a spade, MO10, from his shop at about 12.30 noon on 11/7/2007. Accused came in a car driven by him. He noticed the accused since the above car had hit on a post near to his shop. 16. PW9 deposed that while going through the road at Kokkidi for remitting electricity bill on 11.7.2007, Sundaram told him that he had seen the dead body of a person being dumped in the tapioca plantation there. PW9, came to that spot again, seeing the crowd and police, and saw a car lying there. Inside the Crl.Appeal No.1120/15 -:17:- car, PW9 saw a spade and a packet wrapped with plastic paper. He also saw the body of the deceased wound up with plastic rope in that tapioca plantation. 17. PW10 is the owner of the white Ambassador car with registration number KRV 7578. According to PW10 he had given that car to the accused at about 6.30 a.m. on 11.7.2007, for a day, as recommended by his cousin Kumar. Accused asked the car for visiting the house of his fiancee. The registration book of the above car is marked as Ext.P5 and the sale agreement, tax token and insurance paper were marked as Exts. P6 to P8. PW10 later had come to know that a body was taken in the above car for disposing it in an Ela. 18. PW11, had worked along with the accused at CMI House, Vazhuthacaud, before the accused got employment at KSFE as Part Time Sweeper. He deposed that the car with registration number KRV 7578 was given by PW10 for the use of accused on 11.7.2007 as per the recommendation of the brother of PW11. He further deposed that as instructed by the Circle Inspector of Police he called Mary and enquired whether the accused had Crl.Appeal No.1120/15 -:18:- been to her house. Mary called him in the early morning of 12.7.2007 and told that the accused had come there and was lying on the terrace of their house, and she suspected that he had consumed liquor. PW11 gave the above information to the Police and accordingly the police party took the accused from the house of Mary. PW12 is the brother of PW11 who recommended to PW10 to give his car to the accused on 11.7.2007. 19. PW13 is the registered owner of the car with registration number KRV 7578. According to PW13 he had sold the above car on 13.6.2007 to PW10 on the basis of the sale agreement which is marked as Ext.P6. 20. PW14 was the Manager of KSFE Main Branch, Neyyattinkara at the relevant time. He deposed that on 11.7.2007, an amount of `4,00,000/- was handed over to deceased Asokan for the purpose of depositing the same in bank. The attested photocopy of the cash movement register and the relevant entry is marked as Ext.P11 and Ext.P11(a). Asokan had also carried the balance sheet of a chitty for the purpose of submitting the same before the Sub Registrar's office. The above balance sheet is marked as Ext.P12. By 12.30 noon on 11.7.2007, Crl.Appeal No.1120/15 -:19:- he got information that the amount entrusted with deceased Asokan had not reached there. Thereafter, PW14 got information about the spotting of a dead body at Kokkidi Ela and instructed PW1 to enquire about it. Later on his instructions, PW1 informed the matter to the Police when they knew that it was the body of Asokan which was found in the tapioca cultivation at the place called Kokkidi. PW14 identified the body of Asokan, from the site itself, lying there with plastic rope wound around it. He also saw the white Ambassador car with registration number KRV 7578 lying there in the road at that time. PW14, further deposed that the police had recovered an amount of Rs. 3,97,900/- wrapped in a plastic cover and kept inside that car. The above plastic cover is identified by PW14 as MO11. A flannel found inside the car was identified by him as MO12. He also identified the spade, MO10, taken from the car. Ext.P12 is the balance sheet which was entrusted with the deceased on 11.7.2007 for submitting before the Sub Registrar. The envelope in which Ext.P12 balance sheet was enclosed,is marked as Ext.P12(a). 21. PW15, who was the Cashier of KSFE Main Branch, Neyyattinkara, on 11.7.2007 also supported the version of PW14. Crl.Appeal No.1120/15 -:20:- 22. PW16 was the Manager of KSFE, Balaramapuram Branch on 11.7.2007. She stated that the accused was present at the office at 10 a.m. on 11.7.2007, but when she called the accused at 11 a.m., he was not there. The staff told her that the accused had gone to a hospital at Vazhuthacaud for blood test. Thereafter PW16 is said to have seen the accused after 12 noon on 11.7.2007 and when he was asked about his absence, the accused told her that he had gone to Vazhuthacaud for conducting blood test. 23. PW17 was a Peon associated with KSFE Balaramapuram Branch at the time when the incident took place. PW17 also deposed that the accused was there at the office up to 10.30 a.m. on 11.7.2007, and that thereafter he was not found there till 12.30 noon, PW17 had identified MO8 and MO9 pants and shirt which were worn by the accused on 11.7.2007. 24. PW18 was the owner-cum-driver of the autorickshaw which the accused is said to have hired on 11.7.2007 for proceeding to the house of Mary at Vazhuthacaud in Thiruvananthapuram in the afternoon of 11.7.2007. He deposed Crl.Appeal No.1120/15 -:21:- about the details of the above journey and the conduct of the accused during that time. He identified the accused before court. 25. PW19, who was an Assistant, working at KSFE Main Branch, Neyyattinkara during the relevant time deposed that the accused had told him about his love affair with a girl by name Vanaja who was working at a photostat shop in the same building where the KSFE Main Branch was functioning. The accused had told him, that he had purchased and handed over churidar and gold ornaments to Vanaja. After the transfer of the accused to Balaramapuram Branch, accused told him that Vanaja was not showing interest in that love affair. Vanaja had handed over a packet containing a sim card, photograph of the accused and a gold necklace to him with the instruction that the said items should be given back to the accused. 26. PW20 is the owner of the DTP Centre and Photostat shop where Vanaja was working, He had warned Vanaja from engaging in prolonged talks with the accused. Vanaja had left his shop for higher studies. Thereafter on one occasion the accused is said to have inquired PW20 about Vanaja. Crl.Appeal No.1120/15 -:22:- 27. PW21 is the daughter of Mary and Felix who were said to be the famíly friends of the accused right from the time when he was working at CMI House, Vazhuthacaud. The accused had told her about the love affair with Vanaja and the subsequent development of it when Vanaja is said to have lost interest in continuing that relationship with the accused. She deposed that the accused had come in an autoríckshaw in between 3.30 and 4 p.m. on 11.7.2007 while she had gone for bringing back her sister's child from school, and all of them travelled in that autorickshaw to the house of PW21 at Jagathi. PW21 would further state that while they were travelling in that autorickshaw, the accused uttered the words that everything was over and a person had been killed. PW21 also stated that she could notice that the pants worn by the accused contained mud and that she had washed it as instructed by her brother. According to PW21, she along with her brother and mother, went along with the accused for viewing second show at Sreekumar Theatre, Thiruvananthapuram in the night of 11.7.2007. All the expenses for film ticket, and also the hotel bill for the food consumed by them at a restaurant, were met by the accused. 0n their way Crl.Appeal No.1120/15 -:23:- back, accused alighted at a place called Mettukada. Next day morning the accused came to their house and was found lying on the terrace in an inebriated condition. She procured curd from a nearby house and administered the same to the accused for detoxification as instructed by her mother. Her brother brought the accused down into a room of that house. In the meanwhile PW11 called and enquíred whether the accused had come there. Her brother informed PW11 about the arrival of the accused to his house. Later Police in mufti came there and took the accused with them. She identified MO8 and MO9. The kerchief, watch and foot wears of the accused were handed over by her to the police, which she identified as MO13 to MO15. PW22 is the brother of PW21, who supported the version of PW21. PW23 is the cousin of PW21 and PW22. She had also gone along with PW21 at about 3.30 p.m. on 11.7.2007 for bringing her sister's child from school, and that they travelled in the autorickshaw in which the accused came there, up to the house of PW21. 28. PW24 is the sister of the accused. She deposed that the accused was in love with Vanaja and they used to have telephonic conversations. She was declared hostile. Crl.Appeal No.1120/15 -:24:- 29. PW25 is the neighbour of the accused. He deposed that the accused had given him a lift in the white Ambassador car, at about 7 a.m. on 11.7.2007. The accused dropped him at TB Junction, Neyyattinkara and drove away towards Balaramapuram. 30. PW26 deposed that he is the owner of the land on the eastern side of Kokkidi-Pathamkallu Ramapuram road where the body of the deceased was found on 11.7.2007. 31. PW27 is the neighbour of deceased. He reached the place where the body of Asokan was found, at about 2 p.m. on 11.7.2007 and saw the body lying there with plastic rope tied around it. He also saw the white Ambassador car lying in the road near to the place where the body was found. 32. PW28 deposed that he was cultivating tapioca in Kokkidi Ela, which was taken on lease from PW26. He had come to know about the incident, but he visited the spot only after one week. He got a footwear of right leg from the crime spot, and he informed the police. The said footwear is identified as MO3(a). 33. PW29 is the brother-in-law of deceased Asokan who received the dead body after postmortem on 12.7.2007. PW30, Crl.Appeal No.1120/15 -:25:- an attestor to the inquest report turned hostile. PW31 is another attestor to Ext.P20 inquest report. 34. PW32 is an attestor to Ext.P21 mahazar prepared by the police while recovering the plastic rope found in the body of the deceased as well as the shirt and watch worn by the deceased. The plastic rope is identified as MO16. 35. PW33 is an attestor to Ext.P22 mahazar prepared in connection with the recovery of the remaining portion of the plastic rope, alleged to have been used by the accused for the commission of the offence, from the residence of the accused. PW33 was declared hostile. 36. PW34 is an attestor to Ext.P23 mahazar prepared at the time of recovery of the dress, wrist-watch, footwear etc worn by the accused at the time of commission of the offence. 37. PW35 is an attestor to Ext.P24 inventory prepared with regard to the cash movement register maintained at KSFE Main Branch, Neyyattinkara. 38. PW36 is an attestor to Ext.P25 inventory prepared in connection with the records of the Ambassador car with Crl.Appeal No.1120/15 -:26:- registration number KRV 7578. He also identified Exts.P5 to P8 which were taken into custody on the basis of Ext.P25. 39. PW37 is an attestor to Ext.P26 scene mahazar with regard to the place from where the accused allegedly took the deceased in the above said car. 40. PW38 is an attestor to Ext.P27 scene mahazar with regard to the place of occurrence. 41. PW39 is an attestor Ext.P28 inventory prepared in connection with the customer application form submitted by the accused for availing cell phone connection for the mobile phone used by the accused at the time of commission of the offence. 42. PW40 was the Head Constable of Neyyattinkara police station who collected the material objects found on the dead body, and removed at the time of postmortem, as per Ext.P21 mahazar. 43. PW41 was the Village Officer, Athiyannoor who prepared Ext. P29 scene plan. 44. PW42 was the Motor Vehicle Inspector of Neyyattinkara who had inspected the Ambassador car involved in this case and issued the letter which is marked as Ext.P30. Crl.Appeal No.1120/15 -:27:- 45. PW43 was the representative of Vodaphone Company Ltd. who received the customer application form of the accused on the basis of a kaichit, which is marked as Ext.P31. 46. PW44 was the Assistant Director of Serology of Forensic Science Laboratory, Thiruvananthapuram who issued Ext.P32 report in connection with the analysis of blood collected from the place of occurrence. 47. PW45 was the Assistant Director of Biology division of FSL, Trivandrum who issued Ext.P33 report regarding the analysis of the material objects collected from the scene of occurrence. Exts.P34 and P35 are also similar reports issued by PW45 regarding the blood stains collected from certain objects found from the scene of occurrence. A report on scene of occurrence was prepared by that witness which was marked as Ext.P66. 48. PW46 was the Judicial Magistrate of the First Class No. 11, Neyyattinkara who recorded the statements of some of the witnesses in this case. Crl.Appeal No.1120/15 -:28:- 49. PW47 was the Sub Inspector of Police, Neyyattinkara who registered Ext.P37, FIR in connection with the offence alleged in this case. 50. PW48 was the Assistant Professor of Forensic Medicine, Medical College, Thiruvananthapuram who conducted the postmortem examination on the body of deceased Asokan and issued the certificate which is marked as Ext.P38, mentioning the ante-mortem injuries. PW48 deposed that the cause of death was due to the combined effect of ligature strangulation and blunt force injuries on the face. 51. PW49 was a Scientist associated with the Centre for Development of Advanced Computing. He prepared Ext.P39 report in connection with the sim card used by the accused. 52. PW50 was the Circle Inspector of Police, Neyyattinkara who conducted the substantial portion of the investigation in this case. He recovered MO17 a peak cap and MO18 mobile phone from the car. He arrested the accused on 19.7.2007 at about 8.20 a.m. at NIMS Hospital, Neyyattinkara. The remaining portion of the rope which was used for the commission of the offence, MO20, has been recovered by PW50 from the residence of the Crl.Appeal No.1120/15 -:29:- accused. The property list prepared by PW50 in connection with the production of MO20 before the Court is marked as Ext.P42. 53. PW51 was the Detective Inspector of CBCID who conducted further investigation from 22.6.2009 onwards. PW52 was the Detective Inspector of CBCID, Thiruvananthapuram who conducted the investigation in this case from 5.10.2007 onwards. 54. After the closure of prosecution evidence the accused was questioned u/s. 313 Cr.P.C and he denied the incriminating evidence against him. He filed a statement stating that the car, which he hired on 11.7.2007 from PW10, was handed over to deceased Asokan at about 9.30 a.m. on that day, on the request of Asokan for taking his mother to the Mental Health Centre, Peroorkada. Asokan assured that the vehicle would be returned by 12 noon. Asokan did not bring back the car even after 1.30 p.m. on 11.7.2007. He therefore proceeded to Vazhuthacaud in the autorickshaw of PW18 to inform PW11 about the situation. He admitted to have come to the house of PW21 in the evening of 11.7.2007 in that autorickshaw, and that he went along with PW21 and PW22 for second show, and thereafter returned to his house at Neyyattinkara in the same night. He had come to know Crl.Appeal No.1120/15 -:30:- about the death of Asokan and the use of the above car in connection with the above crime only by late night of 11.7.2007 from his mother. He immediately proceeded to Vazhuthacaud knowing that the police were in search of him suspecting that he had committed the murder of Asokan. He came to the house of PW21 in the dawn of 12.7.2007 and lied down on the terrace after consuming liquor. PW21 administered something to his mouth and he became unconscious. He regained consciousness at the hospital where he found police and other persons standing nearby. According to the accused, PW21 and her family were having enmity with him due to his refusal to the proposal to marry PW21 and at their instance, the police had fabricated a false case implicating him for the murder. 55. Three witnesses were examined on the defence side as DW1 to DW3. Exts.D1 to D3 are the contradictions marked from the statements of prosecution witnesses. DW1 and DW2 were examined by the accused to prove that the accused was present at KSFE office, Balaramapuram from morning to noon on 11.7.2007. DW3, the Nodal Officer of Vodaphone Cellular Ltd., Crl.Appeal No.1120/15 -:31:- Kerala, was examined for marking Ext.D4, the call details relating to the sim card used by the accused. 56. PW1 has given evidence stating that the deceased Asokan was employed as a Higher Grade Peon in the KSFE Neyyattinkara Branch, and the accused was a part-time sweeper. Accused was later transferred to Balaramapuram Branch. The motive behind the crime, according to the prosecution, was the strained relationship accused had with a lady named Vanaja, working in a photostat shop downstairs in the same building of KSFE, Neyyanttinkara Branch. Accused wanted to marry her. But in the meanwhile, he was transferred to Balaramapuram Branch. When she started avoiding him, he thought that she was having an affair with Asokan. He therefore decided to do away with Asokan and accordingly he chalked out a plan, which ultimately resulted in the murder of Asokan. In fact there is the evidence of PW19, PW20 and PW21, regarding the relationship the accused had with Vanaja and that they broke apart. But as rightly pointed out by the counsel for accused, there is no evidence to suggest that the accused entertained enmity with Asokan on account of Crl.Appeal No.1120/15 -:32:- her attitude. Therefore motive could not be proved by the prosecution. 57. The murder of Asokan came to light when PW1 gave FIS to the Police stating that Asokan had gone from the main branch at Neyyattinkara for depositing an amount of `4 lakhs. He did not return till 12.30 on 11/7/2007. The Bank authorities informed KSFE that they have not received the said amount till 12.30. In the meantime, Manager of the second branch of KSFE informed the Main Branch about the news regarding locating a dead body at Kokkidi Ela. PW1 reached the said spot and identified the body of Asokan. He also saw the Ambassador car bearing Regn.No.KRV 7578 parked by the side of the road near the place where the dead body was found. The fact that Asokan had collected `4 lakhs on 11/7/2007 for depositing the said amount in the Bank is proved by the oral testimony of PW14 and Ext.P11 the cash movement register and the entry regarding entrustment of the said amount to Asokan as Ext.P11(a). PW14 got information regarding the dead body at Kokkidi Ela, and he instructed PW1 to enquire about the same. PW14 also reached the spot and confirmed the identity of Asokan. He saw the white Ambassador Crl.Appeal No.1120/15 -:33:- car with Regn.No.KRV-7578 lying in the nearby road. 58. Police recovered an amount of `3,97,900/- which was wrapped in a plastic cover and kept inside the car. MO11 is the plastic cover. PW14 had entrusted a balance sheet to Asokan which was in an envelope. Ext.P12 is the balance sheet and Ext.P12(a) is the envelope. These items were recovered from the Ambassador car. The entrustment of the money to Asokan was further reiterated by PW15. The money had to be deposited at the District Co-operative Bank, Neyyattinkara Branch. He had also identified MO11 plastic cover in which the money was wrapped. 59. The fact that Asokan died on account of ligature strangulation and blunt force injuries on the face is proved by the testimony of PW48. The opinion expressed by PW48, has not been disputed. That apart, when the dead body of the victim was found tied in a tapioca plantation, it by itself, would indicate that it is a case of homicide. 60. The only question to be considered is whether the accused/appellant had committed the crime. The prosecution, of Crl.Appeal No.1120/15 -:34:- course, relies upon circumstantial evidence to prove their case against the accused. As already mentioned, the trial Court has also placed reliance upon several proved circumstances to arrive at a conclusion that the accused is guilty of the offence charged. We have to analyse whether the materials placed on record by the prosecution are sufficient enough to sustain the conviction of the accused. 61. Going by the statement filed by the accused under Section 313 of Cr.P.C, he had virtually admitted having been in possession of the Ambassador car bearing registration No. KRV 7578 from PW10 on 11/7/2007. But the accused in his statement, had taken a defence that the vehicle was handed over to Asokan for taking his mother to the mental health centre. The accused further stated that Asokan assured that the vehicle would be returned by 12 noon. Therefore, this is a case in which accused denies any involvement in the crime. 62. Even going by the admission in the 313 statement, the presence of Asokan in the car is not disputed. Even otherwise, the presence of the cash that was entrusted to Asokan by the KSFE, Crl.Appeal No.1120/15 -:35:- to be deposited with the District Cooperative Bank, which was found in the Ambassador car bearing registration No. KRV 7578, itself proves the fact that Asokan was in the said car for some time. Some other materials which were in the possession of Asokan, while he left the branch on the fateful day were also recovered from the vehicle. The mobile phone of the accused was also recovered from the car. 63. Prosecution examined PW6 to prove the presence of accused near the Ambassador car, on 11/7/2007, along with another person sitting inside the car near the place where the dead body was later found. He deposed that he saw the accused, making a phone call outside the vehicle leaning towards the vehicle and another person sitting inside the car on the left side of the front seat. He further deposed that when he came back he found the same car on the southern side. He again came back to the said place on seeing the Police and a crowd of people. He saw the dead body of a person being taken to the ambulance and he identified the said person as the person who was sitting inside the car, that day morning. The evidence of PW6 proves the Crl.Appeal No.1120/15 -:36:- presence of the accused near the place where the dead body was found. The defence of the accused that he had handed over the car to Asokan stands disproved by the testimony of PW6. 64. Evidence of PW7 further proves the fact that, on getting information from Sundaram that he saw somebody pulling something out of the car towards the tapioca plantation, PW7, on reaching the said place, found the car being reversed and it drove off. He took down the number of the car as KRV 7578. He had instructed Sundaram, to find out what was being dragged from the car. He was informed, later that it was a body wound with plastic rope. His evidence proves the fact that the vehicle was taken reverse, after the dead body was dumped in the tapioca plantation. 65. PW8 is yet another witness, who deposed that he had seen the accused with the Ambassador car at about 12.30 noon on 11/7/2007. He deposed that the accused had come in a car and purchased a spade from his shop, which he identifies as MO10. The said spade was recovered from the Ambassador car by the Police. The evidence of PW7, PW9 and PW14 would prove Crl.Appeal No.1120/15 -:37:- that the Ambassador car was found near the place where the dead body was located. PW14 also proves the fact that MO10 spade was recovered from the said vehicle. The aforesaid facts categorically prove that the accused was in possession of the vehicle when he purchased MO10 spade and he took the vehicle to the place where he had left the dead body, probably with the intention of burying it, but on seeing a group of people in the locality, he left the car and fled away from the scene. 66. When it is proved by prosecution that the accused had taken the deceased in the Ambassador car, which fact is evident from the recovery of money and other materials which were in the possession of the deceased and the oral testimony of PW6, coupled with the fact that the mobile phone of the accused was recovered from the said car, it is for the accused to explain what happened to the deceased. No such explanation is forthcoming. Section 106 of the Evidence Act squarely applies to the fact situation. When there is evidence to prove that the accused and deceased were in the car at a particular point of time and after some time, that is within an hour the dead body of the deceased Crl.Appeal No.1120/15 -:38:- is found in the nearby locality, it has to be presumed that the accused alone knows as to what happened to the deceased. In the case on hand the accused admits in his statement filed after the questioning under Section 313 that he had given the car to the deceased. The said statement can be treated as a false explanation, in the light of the evidence of PW6, who had categorically given evidence of having seen the accused, along with the deceased, in the nearby place where the dead body was later found. 67. The dead body was tied with a plastic rope during investigation. PW50 had recovered a piece of rope from the house of the accused. PW32 is a witness to Exhibit P21 mahazar by which the plastic rope was recovered and the same is identified as MO16. The fibers of the rope tied on the dead body of the deceased matched with the fibers of the plastic rope recovered from the house of accused as MO16. Though the counsel for accused tried to emphasize that the colour of the rope was differently stated in the mahazar and the scientific report, it will not render the evidence unacceptable. The colour of the rope Crl.Appeal No.1120/15 -:39:- may slightly differ depending upon various factors including colour perception of each individual. The rope which was tied over the body of the deceased is MO16. PW48 has also identified the said rope which she removed from the dead body at the time of postmortem. MO20 was the plastic rope recovered from the house of the accused. The cellophane tape pressings taken from both palms of the dead body at the time of inquest were also sent for analysis. The FSL report Ext.P33 proved that the cellophane tapes contained fragments of grey coloured plastic fibres similar to the plastic ropes recovered from the body and plastic rope recovered from the well of the accused's house. The only argument was regarding the colour of the rope as mentioned in the report and it was stated to be grey coloured plastic fibres whereas in Ext.P38, the colour of the synthenic rope was stated to be brown. In so far as scientific evidence clearly reveals that the body of the victim was tied with a rope and fibres found in the cellophane tape pressings collected were similar, which again is similar with MO20 obtained from the house of the accused, the evidence is undoubtedly clear that the source of the plastic rope was the same. Of course, one of the witnesses who attested the Crl.Appeal No.1120/15 -:40:- recovery of the rope from the house of accused turned hostile. But as rightly pointed out by the trial Court, though it cannot be stated to be a recovery in terms of S.27 of the Evidence Act, the said evidence is relevant u/s 7 of the Evidence Act. 68. The aforesaid circumstances by itself are sufficient enough to conclude the involvement of the accused to the aforesaid crime. That apart, the conduct of the accused immediately after the crime is spoken to by PW18, PW21, PW22 and PW23, which further proves the fact that the accused was not in a clear state of mind. He had to be hospitalised by the Police themselves. After committing the crime he did not go to his usual place of residence, whereas he had gone to the house of PW21 and went for a movie with them. Thereafter, while coming back, he got down at a place called Mettukada. He was later found lying on the terrace of PW21's house in an inebriated condition. At the instance of PW11, information was given to the Police that the accused was at the residence of PW21 and he was taken custody from there and was admitted in the hospital. Such a conduct of the accused is also the relevant factor to be taken Crl.Appeal No.1120/15 -:41:- note of. 69. The accused attempted to prove that he was present in the bank during the time when the alleged offence was committed. He also examined DW1 and 2 to prove the said fact. None of those persons have anything to do with the office in which he was working. DW1 does not know the date on which he had seen the accused. When a leading question was asked whether he had seen the accused on 11/7/2007, the answer was it might be correct. DW1 is a loading and unloading worker working at Balaramapuram Stand. DW2 is a welder by profession. He also knew the accused and even according to him, he would have seen the accused on 11/7/2007 and that too based on a leading question. Such evidence cannot be believed. PW16 was the Manager of KSFE branch at Balaramapuram on 11/7/2007. PW16 had given evidence, stating that the accused was present at the office at 10 a.m. on 11/7/2007, but later when she enquired about him at about 11 a.m., he was not available. The staff of the branch informed her that the accused had gone to a hospital for blood test. She thereafter saw the accused only Crl.Appeal No.1120/15 -:42:- after 12 noon on 11/7/2007. Her evidence is supported by the testimony of PW17, who is a peon attached to the same office. He deposed that the accused was not seen in the office from 10:30 a.m. to 12.30, noon. From the aforesaid evidence, it is clear that the accused had come to the office, signed the register and left the place, stating that he is going to the hospital to have a blood test conducted. The evidence further discloses the fact that during the interregnum time, the accused was seen with the deceased at a distant place, that is Kokkidi Ela, which is near to the place where the dead body was found in a tied condition. The car in which the deceased travelled on the said date was taken by the accused from PW10, and the said car was seen abandoned near the place where the dead body was found. 70. The aforesaid facts clearly point out to the guilt of the accused and we are satisfied that the trial Court had correctly appreciated the evidence and had arrived at the guilt of the accused. We do not find any reason to take a different view in the matter. We therefore sustain the conviction of the accused for the aforesaid crime. The punishment imposed is also commensurate Crl.Appeal No.1120/15 -:43:- with the finding of guilt. Hence, no interference is required to the sentence as well. In the result, the appeal is dismissed. **Sd/A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR** Rp True Copy **JUDGE** PS to Judge