Mohammed Shukkoor Ali 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** **TUESDAY, THE 04TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940** **CRL.A.No. 1394 of 2013 (G)** **AGAINST THE JUDGMENT IN SC 371/2010 of Ist ADDL.SESSIONS COURT,KOTTAYAM, DATED 06-04-2013** **IN CP 15/2010 of J.M.F.C. - I, ETTUMANOOR** ## **APPELLANT:** **MOHAMMED SHUKKOOR ALI, C.NO.175, DISTRICT JAIL, THIRUVANANTHAPURAM,** **BY ADVS. SRI. SHABU SREEDHARAN SMT. RESHMA ABDUL RASHEED SRI. TONY THOMAS INCHIPARAMBIL SRI. UDAYAKUMAR SREEDHARAN** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682031.** **BY SMT. AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.08.2018, THE COURT ON 04.09.2018 DELIVERED THE FOLLOWING:** Crl. Appeal No.1394/2013 2 ## **JUDGMENT** ## **P. Somarajan, J.** The sole accused came up with this appeal against the judgment of conviction and orders of sentence for the offence under Sections 397 and 302 IPC in Sessions Case No. 371/2010 of Additional Sessions Judge-I, Kottayam, dated 06.04.2013. 2. The prosecution allegation is that the accused committed murder of the victim one Mariamma and robbery of her gold ornaments on 03.06.2010. The body of Mariamma was found inside a culvert near to her residential house. Missing of Mariamma was noticed by 4.30 p.m. on that day. After a search in the neighbourhood, it was intimated to the police by 6.30 p.m. By 7.30 p.m. on the same day, the dead body of Mariamma was found lying inside a culvert near to her house. PW1 had given Exhibit P1 FIS based on which Exhibit P11 FIR was registered. 3. The prosecution has examined PWs1 to 21 and got marked Exhibits P1 to P20. The material objects were marked as MO1 to MO7. The learned Sessions Judge found that the accused is guilty of offence punishable under Section 302 IPC and convicted thereunder and sentenced to undergo imprisonment for life and to pay a fine of Crl. Appeal No.1394/2013 3 Rs.10,000/-, in default to undergo rigorous imprisonment for one year. The learned Sessions Judge also found that the accused is guilty for the offence punishable under Section 392 read with Section 397 IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-, in default to undergo rigorous imprisonment for a period of one year with a direction to run the sentence concurrently. Set off was also allowed for the period of detention already undergone by its judgment dated 06.04.2013, against which this appeal is preferred. 4. The post mortem examination on the body of the deceased reveals the following ante-mortem injuries: - _“1. Contused abrasion 1.4x1cm on the middle of forehead 4cm above root of nose._ _2. Contused abrasion 1.5x1.2cm involving root of nose._ _3. Contusion of scalp 4x3x0.5cm overlying frontal region of scalp, in mid line 7cm above root of nose._ _4. Incised wound 20.5cmx3.8cm exposing vertebra, obliquely placed across the front of neck, its right outer end was 4cm below right ear lobule and left outer end 6cm below left ear lobule. The right lower margin of the wound showed side cuts, 8cm outer to midline. The strap muscles of neck, thyrohyoid membrane nerves jugular vein carotid arteries pharyinx were cut and separated exposing the cervical vertebrae._ _5. Superficial incised wound 3cm long oblique on front of neck lower inner end 2cm above collar bone and 5cm outer to mid line._ _6. Incised wound 3x0.5cm bone deep, obliquely placed on the front root of thumb._ Crl. Appeal No.1394/2013 4 _7. Superficial incised wound 2.5x1.5cm on back of right thumb with bevelling of its margin it was placed 4.5cm below root of thumb._ _8. Abrasion 3x2cm with graze abrasion directed downwards, 7cmx1-1.5cm in overlying the prominence of right hip bone, its upper extent 18cm outer to midline.”_ The cause of death is stated to be due to injury sustained to the neck (Injury No.4). 5. There is no eye witness to the alleged incident. PW7 is the employer of the accused and other workers who were residing in the above said shed as on the date of alleged incident. 6. PW8 is the star witness examined by the prosecution. She had seen the accused by 3.45 p.m. on the alleged day of incident just in front of the shed and he was found to be preparing some gruel. Approximately after 7 minutes on her way back to her house the accused was found in the culvert and he was doing some hand work by leaning inside the culvert. His dress, a country towel, was found to be wet, so that she could see his inner wear - shuddy with its colour. She had identified the country towel as well as the shuddy as MO7 and MO6. 7. PW2, the sister of the victim, PW3, the lady servant employed in the house, and two other neighbours - PW4 and PW5, were also examined by the prosecution. 8. As discussed earlier, the star witness to the prosecution is PW8 who had seen the accused by 3.45 p.m. when she was on the way to Crl. Appeal No.1394/2013 5 collect dry coconut leaves and had seen him again when she returned to her house approximately after 7 minutes. The body of the victim was found inside the culvert by 7.30 p.m. on that day. She was found missing by 4.30 p.m. onwards on that day. Search was made and by 6.30 p.m. intimation was given to the police. It is thereafter by 7.30p.m her dead body was found lying inside the culvert. PW8 had seen the accused alone in front of the shed situated just 4.55 meters away from the culvert. PW7 had given sufficient support to the version given by PW8 that the accused was alone in the shed during working hours of the said day and he had seen him at 11 a.m., 3.00 p.m and 5.15 p.m. in that shed. It is the definite case of PW8 that she had seen him again when she returned to her house after about seven minutes. At that time, he was found leaning towards the culvert and was found doing something with his hands. Exhibit P5 seizure mahazar and Exhibit P6 series of photographs taken would show that the retaining wall on either side of the culvert is having an average height of 1.25 meters to 1.30 meters. There was no water or water-body inside the culvert at the time of alleged incident which is also well evident from the photographs taken, exhibited as P6 series. It is just 4.55 meters away from the shed. In short, as per the version given by PW8, she had seen the accused at about 3.45 p.m. as well as after about 7 minutes on that day. At that time, the accused was found engaged inside the culvert from where the Crl. Appeal No.1394/2013 6 dead body of the victim was recovered by 7.30 p.m. on that day. She was found missing by 4.30 p.m. on that day. So there is no possibility or probability of bringing the dead body of the victim to the said culvert (inside the culvert) after 4.30 p.m. on that day by somebody else other than the accused. The time factor as spoken by PW8 and PW7 is so crucial. It is not explained by him during his examination what was his business within the culvert at the time when he was noticed by PW8. The fact that there was no water body anywhere in the culvert or near to the culvert and that it was lying at a depth of 1.25 meters to 1.30 meters would be relevant and bring home the guilt of accused in the absence of an explanation from him. It was not explained by him what was his business there at the time when he was noticed by PW8, what he had done there, why he jumped into such a depth and for what purpose he had done it. Further, according to her, nobody else was there in the near vicinity except the accused and the said version of PW8 stood as supported by the oral evidence of PW7. The fact that the victim was found missing by 4.30 p.m. on that day and her body was found lying inside the culvert and detected by 7.30 p.m on that day would sufficiently bring home the guilt of accused as there is no other hypothesis or possibility or probability of having any other hypothesis showing involvement of any other person in the alleged crime. What is brought out through PW8 is a strong incriminating circumstance in all Crl. Appeal No.1394/2013 7 respects, self sufficient and enough to bring home the complicity of accused without having any hypothesis other than the one pointing towards the guilt of accused. 9. The fact that his dress - a country towel, was found to be wet at that time to the extent of making the inner wear - shuddy - visible to others and the absence of any water body in the culvert or in the stream chal (stream way) would be relevant. He was found leaning towards the stream and doing something with his hands and according to PW8, his hands were found to be in a motion of such a fashion rubbing over something. He was found by PW7 in front of the shed by 5.15 p.m. By that time the accused had changed his dress and had taken a bath and found dressed in a pant and T-shirt. 10. The sniffer dog employed went up to the shed and after going around it entered into the shed and sat on the floor. The recovery of gold ornaments belonged to the victim - one gold chain, three bangles, two rings and a pair of ear stud, identified as MOs 1 to 4, from the backside of the shed, concealed in the ground by putting a stone over it, was based on the disclosure statement, exhibited as Exhibit P3, on 04.06.2010. Witness to the recovery was examined as PW14 and nothing was elucidated during cross examination to discredit his evidence. On the other hand, the gold ornaments - MO1 to MO4 - were identified by PW2 Sister who was residing along with the victim in their Crl. Appeal No.1394/2013 8 residence, PW3 the lady servant employed in the said house, PW4 a close neighbour to the victim and PW5 a School Teacher who is also a close neighbour to the victim, besides its identification by PW10, the daughter of the victim. The gold chain identified as MO1, in fact, is a devotional chain with black beads. The chain is made up of gold with black beads, which, according to all these witnesses, having its own identity as the one worn by the victim. They have also identified the other gold ornaments MO2 to MO4 worn by the victim which were recovered from the place wherein it was concealed. One of the arguments is that there is considerable doubt as to its recovery based on the alleged disclosure statement from a place wherein it was concealed as the sniffer dog went up to backside of the shed, but no search was conducted there by the investigating officer to detect any incriminating object and hence the subsequent recovery alleged to have been done based on the disclosure statement is only an embellishment and cannot be relied on. But, the place wherein MOs 1 to 4 were concealed is on the backside of the shed. The fact that the material objects were found concealed in the ground and a stone was found laid over it would sufficiently bring the matter within the sweep of detection as mandated under Section 27 of the Evidence Act, on establishing the other requirements which would bring the matter within its purview. No satisfactory explanation was forwarded by the accused regarding the Crl. Appeal No.1394/2013 9 ownership of the above said items or how the same came into his possession. On the other hand, its recovery based on the disclosure statement would sufficiently show that the accused is aware of the place wherein the ornaments were kept concealed or it was concealed by him. The disclosure statement alleged to have been given by him leading to its recovery is hence admissible and relevant under Section 27 of the Evidence Act. 11. A Division Bench of this Court (in which we are the members) in **Manikandan v. State of Kerala [2018 KHC 40]** had the occasion to consider the said question in reference to a Three Judge Bench decision of the Supreme Court in **George v. State of Kerala [2002 KHC 1669]** and the view taken in **Baiju v. State of Madhya Pradesh [1978 KHC 490], Wasim Khan v. The State of Uttar Pradesh [1956 SCR 191 = AIR 1956 SC 400], Alisher v. State of Uttar Pradesh [1974 (4) SCC 254 = AIR 1974 SC 1830], Emperor v. Chintamani Sabu [AIR 1930 Cal. 379], Re Guli Venketaswamy [AIR 1950 Mad. 309]** , **Ramprashad Makundram Rajput v. The Crown [AIR 1949 Nag.277], State v. Shankar Prasad [AIR 1952 All. 776], Ravunni Nair v. State of Kerala [1957 KLT 255], Kuttappan V. State of Kerala [1960 KLT 829], Tulsiran Renu v. The State [AIR 1954 SC 1], Ram Bharosey v. State of Uttar Pradesh [1954 KHC 551 = AIR 1954 SC 704], Sanwat Khan v. State of Rajasthan [AIR 1956 SC** Crl. Appeal No.1394/2013 10 ## **54]** , **Sunderlal v. The State of Madhya Pradesh [AIR 1954 SC 28],** **State of Kerala v. Jayanandan @ Jayan [2017 KHC 66]** and held that there is no conflict in the legal position settled in George's case (supra) and Baiju's case (supra) as follows: _“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 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.1394/2013 11 ## 12. Further it was held in that decision:- _“that 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 establishes the existence of such a fact within the special knowledge of the accused.”_ 13. Being the legal position settled as above, when there is a simultaneous commission of offence of robbery and murder forming same transaction, the unexplained possession of the article of Crl. Appeal No.1394/2013 12 theft/robbery would be presumptive of both the commission of offence of theft/robbery and homicide. 14. Yet another incriminating circumstance was also brought to the notice of this Court based on the recovery of blood stained knife, identified as MO5, under Exhibit P4 mahazar. The knife was found to be stained with human blood. It was recovered from the wooden rafter of the shed. But the fact that the sniffer dog went inside the shed and that no search was conducted by the investigating officer though the said place was found to be the place of residence of the accused would sufficiently show that the material objects recovered could be traceable if a search was conducted by the investigating officer. A material object which could be traceable by the investigating officer other than through the accused cannot be brought under the purview of Section 27 of the Evidence Act as the very basis of Section 27 of the Evidence Act is the discovery of a fact in consequences of information given when found to be true would act as an incriminating factor against the accused. But that does not mean that every recovery or detection of an incriminating factor which is otherwise traceable in its ordinary course than through the accused can be brought under the purview of Section 27 of the said Act. But the knife was hidden in the reapers of the roof of the shed and it is not traceable or detectable other than through the accused and hence it would satisfy the requirement under Section 27 of the Evidence Crl. Appeal No.1394/2013 13 Act. The fact that he was a resident of the said shed and that the sniffer dog went inside the shed cannot be lightly discarded when the weapon used for the commission of offence was recovered from that shed. Though it cannot be brought under the purview of Section 27 of the Evidence Act, the fact that he was alone in the said house just before the commission of offence and after the commission of offence and during the time in which the alleged offence was committed, in the absence of evidence of involvement of any other person in concealing a blood stained knife at the residential place of accused, would be relevant. In the instant case, there cannot be any probability or possibility of concealing the knife within the shed by any other person without noticing the same by the accused. The fact that the knife, found to be stained with human blood, was recovered from the shed even otherwise act as an incriminating circumstance against the accused, in the absence of proper explanation as to how it was came inside the shed just after the commission of offence. As discussed earlier, the accused alone was present in the shed or in the near vicinity at that time and hence it would be an another incriminating factor against the accused. 15. The recovery of blood stained shuddy (source was not detected) under Exhibit P5 cannot be brought under the purview of Section 27 of the Evidence Act as the source of blood was not detected and hence the same cannot be brought under the purview of an Crl. Appeal No.1394/2013 14 incriminating factor so as to bring the same within the umbrella of Section 27 of the Evidence Act. 16. The circumstances which were brought out, as discussed earlier, are complete in its nature unerringly pointing towards the guilt of accused without having any other hypothesis rather than the one consistent with the guilt of accused which would sufficiently prove the guilt of accused for the homicidal death of the victim besides the commission of offence of robbery of the gold articles belonged to the victim. 17. The ante mortem injury noted as item No.4 would sufficiently show the extensive nature of injury cutting almost the entire part of neck which would sufficiently bring the matter within the sweep of Section 300 IPC. No case of any of the exceptions to Section 300 IPC was either brought out or let in evidence. Hence, there cannot be any interference to the finding of guilt of accused for the offence under Section 302 IPC and the conviction thereunder. The sentence awarded being the lesser one does not call for any interference by this Court. 18. The finding of guilt of accused for the offence under Section 392 read with Section 397 IPC also brought out as the offence of homicide was committed in the course of robbery and no case of any enmity or hatredness was brought out by the prosecution. Hence the conviction thereunder does not call for any interference by this Court. Crl. Appeal No.1394/2013 15 Sentence awarded strikes a balance, hence no interference is required. Hence, appeal fails. Appeal is dismissed. **Sd/A.M.SHAFFIQUE Judge Sd/P.SOMARAJAN Judge** // True copy // P.A. to Judge DMR/-