Manikandan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939 CRL.A.No. 456 of 2013 AGAINST THE JUDGMENT IN SC 231/2010 of ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA, DATED 19-02-2013 ## APPELLANT : - MANIKANDAN, C.No.7805, CENTRAL PRISON, TRIVANDRUM. BY ADV.V.O.PHILOMINA (STATE BRIEF) ## RESPONDENT : - STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. BY ADV. SMT.AMBIKA DEVI S, SPL.PP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2017. THE COURT ON 10.01.2018 DELIVERED THE FOLLOWING: DMR/- ## **C.R.** ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** ---------------------------------------------------------- Crl.Appeal No.456 of 2013 ---------------------------------------------------------Dated this the 10[th] day of January, 2018 ## J U D G M E N T ## **P. Somarajan, J.** The accused/appellant came up with this appeal challenging the judgment of conviction under Sections 449, 302 and 392 IPC and the order of sentence thereunder dated 19.02.2013 in Sessions Case No.231/2010 of the IIIrd Additional Sessions Judge, Thodupuzha. ## 2. The prosecution case in nutshell is as follows:- A lady was found lying dead on the floor of her house tied with a ligature - a bed sheet around her neck. The body was in a decomposing stage. Her house was found locked for few days. Her brother PW1 Bose Raja and PW2 Chellayya (father) came to her house and found the house locked from outside. But, they noticed light inside the house. Hence they broke open the lock, entered into the house and saw the body of Bhavani lying dead beneath the cot. The prosecution allegation is that the accused committed murder of the victim Crl.Appeal No.456 of 2013 2 by strangulating her and committed robbery of her gold ornaments, an amount of Rs.3,000/- and coins worth Rs.2,000/- kept in the house. 3. The Doctor who conducted post-mortem examination on the body of the deceased reported the following antemortem injuries: _“1. A pressure abrasion 36x3 to 5cm horizontal around the neck below the level of thyroid. It was prominent on the right side of neck and in other areas it was less prominent. Under the pressure abrasion the subcutaneous tissues, muscles and midline structures of neck appeared normal._ _2. Scalp contused on the left side and back of head. Skull was intact. Subdural haemorrhage involving left side of brain._ _3. Lossening of lower two central incisors of teeth and dislocation of upper two central incisors.”_ 4. The cause of death is noted as due to combined effect of strangulation and head injury. 5. There is no eye witness to the incident. Hence, prosecution heavily relied on the circumstantial evidence. One of the circumstances relied on by the prosecution is the recovery of some of the gold ornaments belonged to the Crl.Appeal No.456 of 2013 3 victim, identified as MO5 to MO7, based on the alleged disclosure statement made by the accused while he was under police custody and also the recovery of MO16 gold ingot and MO8 torch. MO5 to MO7 were identified as that of the victim by PW1, the brother of the deceased, PW2 the father of the deceased, PW3 the husband of the deceased and also by PW4. PW1 and PW2 are in agreement that they could not see any gold ornaments on the dead body of the victim. PW8 is a witness to the recovery of MO5 to MO7. It was recovered from the shop of PW9, Sreemookambika Finance, Munnar. The accused is known to him. PW9 stated that the accused came to his shop and pledged MO5 to MO7 gold ornaments. The recovery was witnessed by PW8, Revichandran, the Manager of Aiswaya Financiers, and they were recovered under Exhibit P5 mahazar based on the disclosure statement. All these ornaments were identified by the father, the brother and the husband of the victim. Nothing was brought out to discredit their evidence. 6. Another set of recovery was also brought out based on the recovery of MO16 gold ingot from a jewellery by name 4 Crl.Appeal No.456 of 2013 Vins Jewelery. PW13 is the owner of Vins Jewellery. The accused is also known to him. According to him, the accused along with one Murukan, who is the Finance Manager of Meena Finance, came to his shop for selling a chain and a necklace which were originally pledged with Meena Finance. At that time he was not having sufficient funds. Hence, there was an understanding in between Murukan, the Finance Manager of Meena Finance, and PW13 by which they agreed to pay the sale consideration to the accused after deducting the loan amount due to Meena Finance. It was further agreed to pay the loan amount to Murukan. Accordingly, the balance sale consideration was given to the accused. The gold ornaments were immediately melted. MO16 is the gold ingot. The oral deposition made by PW13 is touching on the identity of the accused as well as the nature of gold ornaments pledged with him, one chain and necklace. He had also produced the bill book before the police and a mahazar was prepared. Nothing was brought out to discredit his evidence. On the other hand, his ocular version stood as supported by the oral evidence of PW15, the Finance Manager of Meena Finance. The accused is Crl.Appeal No.456 of 2013 5 also known to him. It was in the month of June 2005, the accused came to the shop of PW15 with the necklace and the gold chain. 7. Yet another recovery was also established by the prosecution regarding the recovery of MO8 torch belonged to the victim. It was identified as that of the victim with its identifying mark - a damage on the backside of the said torch. 8. All these recoveries were challenged mainly on the reason that none of these recoveries would prove the complicity of the accused or the role of the accused in the alleged crime resulting into the death of the victim. It was also submitted that those recoveries cannot be used as an incriminating circumstance connecting the commission of alleged homicide of the victim and took support from a Three Judge Bench decision of the Apex Court in **George v. State of Kerala [(2002) 4 SCC 475]** . On the other hand, relying on the decision drawn in **Baiju V. State of M.P. [1978 KHC 490 = 1978(1) SCC 588 = AIR 1978 SC 522]** , it was submitted by the prosecution that unexplained recovery of articles of theft/robbery would be presumptive evidence of Crl.Appeal No.456 of 2013 6 charges of murder besides robbery. It was submitted that the law laid down by a Three Judge Bench of the Apex Court in George's case (supra) supersedes the decision rendered by the Two Judge Bench of the Apex Court in **Baiju v. State of M.P.** ( _supra_ ) and hence it was submitted that there cannot be any presumption for the charges of murder based on the unexplained possession of articles of theft/robbery belonged to the victim. _But, going by the decision drawn in George's case, the Apex Court has distinguished the decision rendered by a Two Judge Bench of the Apex Court in Baiju's case. The legal position laid down in Baiju's case that presumptive evidence based on unexplained possession of articles of theft/robbery belonged to the victim can be applied for the charges of murder besides robbery/theft following the decisions drawn in_ **Wasim Khan v. The State of Uttar Pradesh [1956 SCR 191 = AIR 1956 SC 400]** and **Alisher v. State of Uttar Pradesh [1974 (4) SCC 254 = AIR 1974 SC 1830]** _is not in conflict with the Three Judge Bench decision of the Apex Court in George's case._ Earlier the High Court of Calcutta in **Emperor v. Chintamani Sabu [AIR 1930 Cal. 379]** had Crl.Appeal No.456 of 2013 7 ## considered the question and expressed its opinion as follows: _“...... the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge but of any other more aggravated crime which has been connected with the theft; this particular fast of presumption forms also a material element of evidence in the case of murder.”_ 9. A similar view was also taken by the High Court of Madras in **Re Guli Venketaswamy [AIR 1950 Mad. 309]** , High Court of Nagpur in **Ramprashad Makundram Rajput v. The Crown [AIR 1949 Nag.277]** and High Court of Allahabad in **State v. Shankar Prasad [AIR 1952 All. 776]** . This Court also considered the said question, as early as in the year 1957, in **Ravunni Nair v. State of Kerala [1957 KLT 255]** and laid down the legal proposition in the following lines: _“Recent and unexplained possession of the stolen property, while it would be presumptive evidence against the prisoner of robbery would similarly be evidence against him on the charge of murder. The chain sold by the accused to Pws. 11 and 12 belonged to the deceased. In the absence of any acceptable explanation from him as to how he came by it, in the circumstances of the case the Court_ Crl.Appeal No.456 of 2013 8 _would be perfectly justified in holding that he was not only the thief of the article, but also the murderer of the owner thereof, who was wearing the same when she was last seen alive.”_ ## 10. This Court again in **Kuttappan V. State of Kerala** ## **[1960 KLT 829]** reiterated the legal position as follows: _“It is well settled that in cases where robbery and murder are so connected as to form parts of the same transaction the recent and unexplained possession of the stolen property will not only be presumptive evidence against the accused on the charge of robbery but also on the charge of murder.”_ ## 11. The Apex Court in **Tulsiran Renu v. The State** **[AIR 1954 SC 1]** while approving the presumption that the ornaments worn by the deceased when found in possession of the accused on the very same day on which the alleged murder was committed the circumstantial evidence was sufficient to hold the accused responsible for the murder of the deceased, if he gave no explanation as to how he came to be in possession of the same, cautioned as to the time factor. It pointed out that if the ornaments are found in the possession of a person soon after the murder, a presumption of guilt may be Crl.Appeal No.456 of 2013 9 permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. 12. In **Ram Bharosey v. State of Uttar Pradesh [1954 KHC 551 = AIR 1954 SC 704]** the very same principle was applied by the Apex Court. But in another decision in **Sanwat Khan v. State of Rajasthan [AIR 1956 SC 54]** , the Apex Court had applied and distinguished the factual scenario involved in that case, wherein it was found to be not safe to draw and apply the presumptive inference available under Section 114(a) of the Evidence Act as there were considerable time gap between the time in which the alleged incident happened and the time in which the accused was found in possession of the articles belonged to the victim. 13. In another decision in **Sunderlal v. The State of Madhya Pradesh [AIR 1954 SC 28]** the earlier view regarding the application of presumptive inference was applied. This Court in **State of Kerala v. Jayanandan @ Jayan [2017 KHC 66]** applied the legal position settled by various decisions of the Supreme Court regarding presumptive Crl.Appeal No.456 of 2013 10 evidence when the accused was found in possession of belongings of the victim without having a proper explanation. 14. It was argued that the legal position settled in **Baiju v. State of M.P.** _(supra)_ and other decisions referred above that unexplained possession of stolen property of the victim by the accused would be a presumptive evidence of the charges of murder besides robbery had been given a go by by the larger Bench decision (three Bench) rendered in **George v. State of Kerala** (supra). _In fact, there is no conflict in the legal position settled in_ _**Baiju v. State of M.P.** (supra) and other decisions referred in the earlier paragraphs with the larger Bench decision (three Judge Bench) rendered in_ _**George v. State of Kerala** (supra). The criteria for the application of the principles laid down in George's case and in Baiju's case is resting on the question whether the murder and robbery alleged would form part of same transaction and when there is evidence to show or to presume that both the commission of murder and robbery form part of same transaction, presumptive evidence of charges of murder can be applied besides robbery. But, when there is evidence to show that the_ Crl.Appeal No.456 of 2013 11 _commission of murder and robbery will not form part of the same transaction or when there is possibility of having other hypothesis for the commission of murder rather than what is attached with the commission of robbery/theft, there cannot be any application of presumptive evidence for the charges of murder. The factual scenario involved in Baiju's case (supra) would come under the purview of former one and in George's case (supra) would come under the purview of latter one. The test is to find out whether the unexplained possession of the articles of theft/robbery would form part of same transaction in which the offence of murder was committed. Then only the presumptive evidence of unexplained possession of the articles of theft/robbery can be extended to the charges of murder. It is well within the power of the court to test whether the commission of murder and robbery would form part of the same transaction, both by direct evidence and presumptive evidence, and in the case of latter one, the test is to find out the existence of any other hypothesis for the commission of murder rather than what is available under the presumptive evidence._ Crl.Appeal No.456 of 2013 12 15. _Further, the unexplained possession of the articles of theft/robbery would bring the matter within the sweep of Section 106 of the Evidence Act, besides the presumption available under Section 114(a) of the said Act, as it is within the special knowledge of the accused how he came into possession of the articles of theft/robbery and it would act as an additional link against the accused_ . Non explanation or false explanation as to how the articles of theft/robbery came into his possession would be an additional link against the accused. Section 106 of the Evidence Act is having wide application when something is within the special knowledge of the accused alone. It may not be possible for the prosecution to prove certain facts which are in the special knowledge of the accused. Section 106 of the Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but a fact within the special knowledge of the accused would be governed by Section 106 of the Evidence Act and the criteria is the existence of a fact, especially to the knowledge of the accused and the burden lies on the prosecution would stand as discharged when it Crl.Appeal No.456 of 2013 13 establishes the existence of such a fact within the special knowledge of the accused. 16. In the instant case, three set of recoveries were proved with respect to the articles belonging to the victim and the possession of the above said articles by the accused immediately after the alleged incident was also established by the prosecution. No explanation was offered by the accused as to how he came into possession of those articles. The existence of a fact which is in the special knowledge of the accused, how he came into possession of those articles, was thus established by the prosecution and non explanation or false explanation forwarded would act as an additional link against the accused besides the presumptive evidence for the charge of murder under Section 114(a) of the Evidence Act. 17. Yet another circumstance is also relevant as the accused purchased a jeep on the next day of the alleged incident under a sale agreement seized under Exhibit P11 mahazar by which he had advanced an amount of Rs.10,000/out of the sale consideration to the seller PW19. It is just after pledging the gold ornaments he entered into a sale agreement 14 Crl.Appeal No.456 of 2013 with PW19 and took possession of the jeep by paying an advance amount of Rs.10,000/-. The source of the said amount was not revealed by the accused during his examination under Section 313 Cr.P.C. It has also come out in evidence through PW3, the husband of victim, that the accused approached him for a loan amount of Rs.2,000/- for the purpose of purchasing a jeep few days before the alleged incident. The purchase of a vehicle utilizing the fund obtained by pledging the gold ornaments that belonged to the victim on the next day of the alleged incident by the accused thus establishes a clear nexus with the alleged incident when read along with the alleged recoveries of the gold ornaments pledged based on the disclosure statement of the accused. 18. The circumstances brought out are complete, consistent with the guilt of the accused and no other hypothesis rather than the one consistent with the guilt of the accused is possible. Hence, the finding of guilt of the accused under Sections 449, 302 and 392 IPC and the conviction thereunder do not call for any interference by this Court. Crl.Appeal No.456 of 2013 15 19. The sentence awarded being the lesser one striking a proper balance between the mitigating and aggravating circumstances, no interference is required. Hence, the appeal lacks in merits, deserves only dismissal and we do so. In the result, the appeal is dismissed. ## **A.M.SHAFFIQUE (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-