Naveen Vydianathan Yadav s/o Baidyanath Yadav v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 12TH DAY OF NOVEMBER 2019/21ST KARTHIKA, 1941** **CRL.A.No.146 OF 2016** **AGAINST THE JUDGMENT IN SC 735/2014 DATED 07-07-2015 OF ADDITIONAL DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARAD CASES, KOZHIKODE** **CRIME NO.439/2013 OF Balussery Police Station , Kozhikode** ## **APPELLANT/ACCUSED:** **NAVEEN VYDIANATHAN YADAV S/O BAIDYANATH YADAV,AGED 29 YEARS, 1206,KRISHNA NAGAR,CHANDRAPUR DISTRICT, INDRA NAGAR,(WITH IN RAM NAGAR POLICE STATION LIMIT).** **BY ADVS. SRI.U.P.BALAKRISHNAN SRI.K.R.AVINASH (KUNNATH) SRI.C.H.ABDUL RASAC SRI.ABDUL RAOOF PALLIPATH SRI.P.P.PADMANABHAN SRI.PRAJIT RATNAKARAN** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031.** **BY SMT.S.AMBIKADEVI, SPL. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **31.10.2019, THE COURT ON 12.11.2019 DELIVERED THE FOLLOWING:** **Crl.A.No.146 of 2016** **:-2-:** ## **JUDGMENT** ## **[Dated this the 12[th] day of November, 2019] N.ANIL KUMAR,J:** This Criminal Appeal arises from the judgment dated 6[th] July,2015 and order on sentence dated 7[th] July,2015 of the Additional Sessions Court (Marad Cases), Kozhikode in S.C.No.735/2014. The court below found the appellant, who is the accused in the above sessions case, guilty for the offences punishable under Sections 449,302 and 392 of the Indian Penal Code,1860 (for short 'IPC') and he was sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/-, in default, to undergo simple imprisonment for two years for the offence under Section 302 IPC, to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/-, in default of payment of fine,to undergo simple imprisonment for one year for the offence under Section 449 of IPC and to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for one year for the offence punishable under Section 392 of IPC respectively. The above sentences were ordered to run concurrently. 2. The facts, as disclosed in the First Information **Crl.A.No.146 of 2016** ## **:-3-:** Report and the evidence let in by the prosecution are as follows:- The appellant was an employee of the hotel under the name and style 'Triveni' conducted by PW16 Surendran. Panayullakandy Gopalan was the father of PW16 Surendran. He died under mysterious circumstances. The main allegation levelled against the appellant is that the appellant and deceased Leela conspired together to murder Panayullakandy Gopalan for which Leela had agreed to pay an amount of Rs.3,00,000/- to the appellant as consideration. Accordingly,the appellant murdered Panayullakandy Gopalan as agreed to between the parties. On the allegation that Leela later retracted from the promise, there were continuous disputes for the money due to him out of the deal to do away with Panayullakandy Gopalan between Leela and the appellant. On 3.7.2013 at 8 a.m, the appellant came to Triveni Hotel and made sure that Leela had gone to her husband's house (PW16) at Manicherimala. PW16-Surendran, Leela and their son PW21 Akarsh were initially residing at Manicherimala. After the death of Panayullakandy Gopalan, they had shifted their residence to the Triveni hotel itself and they rarely visited the house at Manicherimala. On 3.7.2013 at about 7.30 a.m. Leela went to Manicherimala to do the routine cleaning **Crl.A.No.146 of 2016** ## **:-4-:** work in the house. On that day, the appellant availed leave from the hotel with an intention to commit robbery and murder Leela. He hired an autorickshaw of PW30 and alighted near the house of Surendran at Manicherimala. Thereafter, he criminally trespassed into the house of Surendran bearing Door No.3/296, for the purpose of committing robbery and murder. While so, Leela was standing on the backside of the house. The appellant took MO18 chopper and abruptly cut the neck of Leela. After confirming her death, he snatched away her gold chain and when he tried to remove her bangles from her hand, he found it difficult to remove the same easily. As an easy way to remove the bangles, he mercilessly cut the left palm of Leela and appropriated the gold bangles also. After committing the heinous act, he came down to the road, made a call to PW30 and went to a toddy shop at Padikkalvayal by the very same autorickshaw owned by PW30. Thereafter, he consumed toddy and alighted in front of the shop of PW16. In order to hide the offence, he had thrown away the socks and gloves, which were used by him for committing murder at Thalayad river. He came back and concealed the gold ornaments and mobile phone inside the room used by him for accommodation. **Crl.A.No.146 of 2016** ## **:-5-:** 3. Ext.P1 First Information Statement was furnished by PW1 Rajan, who was then working as Supplier in Triveni Hotel conducted by PW16. According to him, there were 9 employees working in the hotel. The appellant was working as parotta maker in the said hotel. On 3.7.2013, at about 7 p.m. he received a phone call from PW16 to reach his residence at Manicherimala. As directed by PW16, he proceeded to the residence of PW16 along with one Sreenivasan to Manicherimala by a taxi. When he reached the residence, PW21, who was present on the spot had informed that Leela was murdered. He saw the deadbody of Leela at the residence. He also noted the injuries present on the body of the deceased. 4. PW32- the Circle Inspector of Police, Balussery Police Station conducted investigation in this case and filed final report before the jurisdictional Magistrate court. The learned Magistrate committed the case to the court of Sessions, Kozhikode where the case was numbered as S.C.No.735/2014 and made over for trial and disposal to the Additional Sessions Court (Marad Cases), Kozhikode. 5. After having heard both sides, the learned trial Judge framed charge against the appellant for the offences **Crl.A.No.146 of 2016** ## **:-6-:** punishable under Sections 449,392 and 302 of IPC. The appellant pleaded not guilty to the charge, whereupon the prosecution was permitted to adduce evidence in support of its case. 6. The prosecution altogether examined PWs.1 to 33 and got marked Exts.P1 to P35 and 19 material objects as MOs.1 to 19. 7. After the closure of the prosecution evidence, the appellant was questioned under Section 313(1)(b) of the Cr.P.C.with regard to the incriminating circumstances appearing against him in the evidence for prosecution. His defence was one of total denial. 8. The learned Sessions Judge, who conducted the trial, did not deem fit and proper for recording an acquittal under Section 232 of Cr.P.C. The appellant was therefore called upon to enter on his defence and adduce evidence which he might have in support thereof. However, no defence evidence was adduced. 9. After conducting inquest in accordance with law, PW32 sent the deadbody for postmortem examination. PW17 Dr.Prasannan, the Professor and Head of Forensic Medicine, **Crl.A.No.146 of 2016** **:-7-:** Medical College Hospital, Kozhikode conducted autopsy on the body of the deceased and issued Ext.P9 Post mortem certificate noting 15 ante mortem and postmortem injuries which are specifically described in paragraph 48 of the trial court judgment. Out of which, injury Nos.5,6,8,9,10,11,12,13 and 14 were postmortem injuries and the rest were ante mortem injuries. Injury No.4, as noted in Ext.P9 Postmortem Certificate is as follows:- “4. Incised wound 7x1x4cm. transverse on right side of front of neck, inner end at midline front and outer end on left side of neck, 9cm below ear. Depth was maximum in the middle (4cm). A superficial incision 3x0.2cm extended transversely from left end of the injury. The muscles underneath were cut and cut (transected) the internal carotid artery, veins and nerves of neck, cut the larynx entering into it (2cm long) and cut the body of neck vertebrae (2cm long and 1cm deep).......” PW17 testified that injury No.4 alone is sufficient to cause death. According to PW17, the injury NO.4 could be caused by cutting with a weapon like MO18. Injury No.14 is an incised wound whereby the left hand was found amputated through the wrist joint, the bones and cartilages were not cut, the edge of the injury shows severe pallor with no antemortem feature and a tag of muscle was present at the hand portion. The finding in Ext.P9 postmortem certificate would irresistibly lead to the inference that **Crl.A.No.146 of 2016** **:-8-:** the injury No.4 sustained to the deceased is fatal and sufficient to cause death in the ordinary course of nature. Thus it is clear that Leela died as a result of sustaining fatal injuries on 3.7.2013 as alleged by the prosecution. 10. To prove the prosecution case on the basis of circumstantial evidence, PW21- the son of deceased Leela and PW16 testified that after the death of Gopalan, he along with his mother had been residing inside the Triveni Hotel to assist PW16 in his hotel business. He further stated that on 3.7.2013 at about 7.30 am, Leela went to Manicherimala for cleaning the house. While so, PW16 had gone to Balussery for renewing the licence of the hotel and he returned from there at around 2.30 pm. At 3 pm he went to the shop of one Kunhahammed for having a fruit juice. While so, the appellant came there in an autorickshaw and requested PW21 to purchase cigarettes for him for which he paid an amount of Rs.10/- as advance. PW21 testified that he went to the shop of Nazir and purchased cigarettes for the appellant and entrusted the same to him. Thereafter, PW21 came back to the hotel. At about 3.30 p.m., the appellant also came back to the hotel. At about 6.30 p.m. in the evening, PW16 requested him to reach Manicherimala at the earliest as his mother was alone at **Crl.A.No.146 of 2016** ## **:-9-:** home. Hence, he proceeded to his house at Manicherimala along with PW1 Rajan, who was working as Supplier in the hotel. When he came to the house, the front door was opened and the electric lights were not switched on. Suspecting some foul play, he called his mother loudly, but there was no reply. When he entered into the room near the kitchen and after switching on the light, he found his mother lying in the room in an injured state. He went in front of the house and made a phone call to his father. Immediately, PW1 and one Sreenivasan came to the spot and PW1 had phoned back to his father. Later, PW21 realised that his mother succumbed to the injuries sustained to her. 11. PW16 is the husband of deceased Leela. He stated that after the death of his father, Leela and his son had been residing inside the hotel in a separate shed. On 3.7.2013, at about 7.30 a.m. Leela expressed her desire to go to his house at Manicherimala for cleaning purpose. At about 12 noon on that day, he went to Balusseri for renewing the licence and entrusted PW1 to collect cash from the customers. At about 2 p.m., he returned from Balusseri and in the evening, he requested his son to go to Manicherimala as his wife was **Crl.A.No.146 of 2016** ## **:-10-:** alone at home. At about 7 p.m., he received a phone call from his son informing that his wife sustained injuries and immediately, he directed PW1 to reach Manicherimala at the earliest. PW1 was residing very close to PW16's residence at Manicherimala. He also hired another autorickshaw and went to the house around 7.15 pm. While so, PW1, PW16 and Sreenivas were present there. There he could see his son weeping. He also noticed that his wife was no more. 12. PW30 was the owner in possession of autorickshaw bearing Regn.No.KL-56/E-6346. His mobile number was 9947491350. On 3.7.2013 at about 7.30 am, the appellant made a call and requested to reach Estatemukku. Around 8.30 am, he made another call and requested him to wait until PW30 received a fresh call from him. At about 11.30 am, appellant again contacted him and requested him to reach Estatemukku. He came to Estatemukku at 12 noon and the appellant hired his autorickshaw to Manicherimala. The appellant alighted from the autorickshaw near S.Bend at Manicherimala and paid an amount of Rs.400/- as its charges. At 2 p.m., the appellant made another phone call and requested him to reach the place where he alighted earlier. Accordingly, he reached at Manicherimala **Crl.A.No.146 of 2016** ## **:-11-:** destination as suggested by the appellant at about 2.30 p.m. and as directed by the appellant, he proceeded to Padikkalvayal toddy shop along with the appellant. After 10 minutes, he returned from the toddy shop and proceeded to Thalayad as directed by the appellant. He alighted near the Gramin Bank and paid an amount of Rs.400/- towards autorickshaw charge. PW30 stated that the last digits of the telephone number of the appellant were 8426. 13. In support of the evidence let in by PW1,PW16,PW21 and PW30, prosecution examined PWs.2 to 6. We have gone through the evidence of PW1,PW16,PW21 and PW30. There are no material contradictions or omissions to discredit their versions of the occurrence before court. 14. PW2 is an autorickshaw driver and he deposed that on 3.7.2013 at about 11 am the appellant hired his autorickshaw from Thalayad to Estatemukku and he had given Rs.95/- as hiring charge. He also deposed that Mos.2 and 3 are the clothes worn by the appellant at the time of hiring the autorickshaw. 15. PW3 is a toddy tapper. He stated that on 3.7.2013 at 11 a.m., he saw the appellant boarding an autorickshaw from Thalayad to Estatemukku. PW4 is a Salesman in the toddy shop at Padikkalvayal. He stated that on 3.7.2013 at about 3 p.m., the **Crl.A.No.146 of 2016** ## **:-12-:** appellant boarded in an autorickshaw and came to the toddy shop for consuming toddy. According to him, he purchased three glasses of toddy and consumed the same on payment of Rs.54/as consideration. 16. PW5, who was a petty shop owner at Thalayad town near Gramin bank, stated that on 3.7.2013 after 3 p.m. the appellant came near his shop in an autorickshaw and alighted near the Gramin Bank. PW6, another shop owner stated that on 3.7.2013 at about 3 p.m., PW21 came to his shop and purchased three cigarettes on payment of Rs.10/-. 17. PW32-the Investigating Officer in the case received reliable information on 3.7.2013 at about 3 p.m. that Leela was murdered. According to him, he deputed the Sub Inspector and party to guard the scene of occurrence. He went to the place of occurrence with the Fingerprint Expert, Dog Squad, Scientific Assistant, Forensic Surgeon, Photographer and prepared Ext.P3 inquest report. In Ext.P3 inquest report, PW10 is an attestor. Ext.P24 is the property list prepared by him. The details regarding the place of occurrence and the manner in which the dead body was found inside the house is evident from Ext.P3 inquest report. Ext.P3 contains a detailed description touching the room where **Crl.A.No.146 of 2016** ## **:-13-:** the dead body was found. The dead body was found half naked while preparing Ext.P3 inquest report. On a reading of Ext.P3, prima facie, it would appear that an attempt was made by someone to commit rape on the deceased Leela before her death and the death might be as a result of an attempted rape. Ext.P3 is self explanatory to show that the deceased sustained injuries all over her body. MO18 chopper was found near the veranda and MO19 knife was also found near the place of occurrence. MO18 is having a length of 51cms. and MO19 is having a length of 29 cms. Very close to MO19, the left palm of the deceased was seen amputated and there was a gold ring in the amputated palm of the deceased. All the material objects such as MO9 sari, MO10 blouse, MO11 underskirt, MO12 brassiere, MO13 stud, MO14 lock of the chain etc. including MO18 and MO19 were recovered by PW32. On the same day at about 8 p.m., PW32 arrested the appellant from Thalayad in accordance with law. At the time of arrest, MO8 key was seized from the appellant. On 5.7.2013, at about 10 a.m., he prepared Ext.P26 mahazar. MO17 series collected by the Scientific Assistant were also received by him. 18. On being questioned, the appellant confessed by way of **Crl.A.No.146 of 2016** ## **:-14-:** Ext.P28 that the mobile phone and gold ornaments were kept inside the room and he would show the same if he was taken there. Based on the above information as led by the appellant, PW32 proceeded to Room No.170 and opened the room with MO8 key and recovered MO1 mobile phone, MO4 three pieces of gold chain, MO5 two bangles, MO6 stud and MO7 screw of the stud in accordance with Section 27 of the Evidence Act, as per Ext.P7 mahazar. MO2 lungi and MO3 shirt were also seized from the very same room. 19. It has come out in evidence from the oral evidence of PW15 that Room No.170, where PW32 recovered the material objects on the information furnished by the appellant, had been rented out to PW16 for conducting the hotel under the name and style 'Triveni' and the employees of Surendran had been residing in the said room in connection with the hotel business. 20. PW1,PW4 and PW16 identified MOs.2 and 3 as the dress materials worn by the appellant on the date of occurrence. PW16 and PW21 identified the gold ornaments recovered by PW32. PW1 stated that he saw the deceased wearing MOs.4 to 6 prior to her death. Further, PW21 and PW16 identified MO1 mobile phone of deceased Leela. **Crl.A.No.146 of 2016** ## **:-15-:** 21. PW22-the Nodal Officer of Idea Cellular Limited had produced the C.D.R. with respect to mobile phone No.9562618426 by Ext.P12. As per Ext.P13, the connection was taken by one Lamani Budappa. The prosecution case is that though the connection was taken in the name of one Lamani Budappa, the appellant was using the same. However, PW32 could not recover the mobile phone or the SIM card therein. Relying on Ext.P12, it is submitted that on 2.7.2013 at about 16:38:49, a call was made having a duration of 14 seconds from cell Phone No.9562618426 and another call having duration of 15 seconds was made at 16:40:08 using the same cell phone under the same mobile tower in Kerala. 22. PW29 the Nodal Officer of Vodafone Cellular Limited produced call data records of mobile No.9599955292. He testified that the connection was taken by PW16 Surendran. 23. PW20 an independent witness adduced evidence to show that he had prior acquaintance with the appellant and the last four digits of the phone number of the mobile of the appellant were 8426. He also stated that on 3.7.2013 before 10 a.m. the appellant phoned him and requested to purchase a bottle of liquor for him. **Crl.A.No.146 of 2016** ## **:-16-:** 24. To prove the offence of robbery and murder, the prosecution examined PW25, the Fingerprint Expert, who inspected the place of occurrence along with the Investigating Officer from where MO1 was seized. He traced out the chance prints obtained from MO1 mobile phone with the fingerprint of the appellant. Ext.P16 Expert opinion submitted by PW25 would indicate that on 6.7.2013, PW25 had inspected the room of the appellant and developed two chance prints on a Nokia mobile phone recovered from the spot. One of the chance prints was unfit for comparison and the remaining one chance print was compared. On comparison, one of the chance prints developed from the mobile phone was found identical with the right finger impression of the appellant, PW25 opined that the finger prints are made by one and the same finger of the same person. 25. In view of the above circumstances, the court below formulated an inference of guilt against the appellant on the following points:- - (i)The telephonic conversation between the deceased Leela and the appellant on 02.07.2013. - (ii) Taking leave by the appellant on 03.07.2013. - (iii)Leela went to Manicherimala from Hotel Triveni at 7.30 am on 03.07.2013. **Crl.A.No.146 of 2016** **:-17-:** - (iv)Presence of the appellant at Hotel Triveni at 8 a.m. on 03.07.2013. - (v) Inquiry made by the appellant with PW9 Mathew about the leaving of Leela to Manicherimala. - (vi)Hiring of autorickshaw of PW30 Akhil by the appellant to Manicherimala. - (vii)Returning from Manicherimala by the appellant in the autorickshaw of PW30 to Thalayad at 2.30 p.m. - (viii)Presence of the appellant at the toddy shop at Padikkalvayal at about 2.45 pm. - (ix) Presence of the appellant at Thalayad at 3p.m. - (x) Wearing of MO2 and MO3 by the appellant on 03.07.2013 in between 8 a.m. and 3 p.m. and the presence of blood in MO2 and MO3. - (xi) Recovery of the stolen articles by PW32 as confessed by the appellant from the room, which was occupied by him. - (xii) Presence of the finger print of the appellant in MO1 mobile phone. ## 26. Heard Sri.U.P.Balakrishnan, the learned counsel for the appellant and Smt.S.Ambikadevi, the Special Public Prosecutor for the respondent. 27. Learned counsel for the appellant Sri.U.P.Balakrishnan contended that the case advanced by the prosecution pertaining to the death of Panayullakandi Gopalan is not proved. It is his submission that in a case of circumstantial evidence, motive is relevant and in the case at hand, the prosecution has failed to **Crl.A.No.146 of 2016** ## **:-18-:** prove the motive. The learned counsel for the appellant added that no evidence was adduced by the prosecution to prove that non-payment of money to the appellant as promised by the deceased, was the cause of death. The learned counsel for the appellant contended that no fingerprint was traced by the investigating officer from the place of occurrence and the chance print traced and located was from the mobile phone alleged to have been recovered at the instance of the appellant, adding that it must be a chance print while taking the mobile phone by the appellant from the scene of occurrence at the time of effecting recovery. It is further contended that the presence of the appellant at Manicherimala was not proved, fingerprint was not proved and recovery was not effected in accordance with law. According to the learned counsel for the appellant, MO8 key was in the possession of PW32 when PW32 reached the place where the material objects concealed as led by the appellant. Hence, it is contended that the recovery effected by PW32 cannot be acted upon. 28. Refuting the contentions of the learned counsel for the appellant, the learned Special Public Prosecutor Smt.Ambika Devi submitted that regarding the murder of Panayullakandy Gopalan, the appellant was tried for murder. He was found guilty, convicted **Crl.A.No.146 of 2016** **:-19-:** and sentenced for life and is undergoing sentence in the said case as well. It is further submitted that the prosecution adduced reliable evidence including recovery of gold ornaments, in accordance with law and the murder for gain is established beyond doubt. 29. It is true that Ext.P3 connection was taken in the name of one Lamani Budappa from Karnataka. Being a SIM card, the user of the same could not be restricted to the person in whose name the SIM card was taken. Legally, the person in whose name the SIM card was taken is entitled to use the same. However, it is easy for others to use the same. Hence, merely because the SIM card was taken in the name of some other person, it could not be assumed that the appellant had no occasion to use the same. PW22-the Nodal Officer of IDEA Cellular Ltd. on the strength of call data records would testify that all the incoming calls and outgoing calls were made by the customer from a location in Kerala. PW20 and PW30 adduced evidence to show that on 3.7.2013, the appellant made a call from the phone having last digits 8426 to their numbers. PW16 the husband of the deceased stated that Leela was using mobile phone bearing No.9539955292 taken in his name from the Vodafone company. Ext.P22 would **Crl.A.No.146 of 2016** ## **:-20-:** show that the connection was taken in the name of PW16. The circumstances including the mobile tower location in Kerala and the evidence let in by PWs.20 and 30 would irresistibly lead to the inference that both the appellant and deceased Leela were at Manicherimala on the date of occurrence as alleged by the prosecution. 30. PWs.8 and 9, who were employees of the hotel testified that the appellant was on leave on 3.7.2013. PW16 and PW21 adduced evidence to show that Leela was inside the hotel on 2.7.2013 and left the hotel on 3.7.2013 at 7.30 a.m for cleaning the house at Manicherimala. PWs.1,8,9,16 and 21 adduced evidence to show that the appellant came to the hotel to take food on 3.7.2013 at about 8 am although he was on leave on that day. 31. The occurrence in this case took place at the residence of PW16 at Manicherimala where the deceased Leela had gone for cleaning the house. PW30, who is an autorickshaw driver, stated that the appellant made telephone calls to his mobile phone No.9947491350 on 3.7.2013 from his mobile phone No. 9562618426. The phone calls made by him is supported by Ext.P12 call data records. The fact that the appellant hired the autorickshaw of PW30 and PW30 dropped him near the 'S'bend at **Crl.A.No.146 of 2016** **:-21-:** Manicherimala at about 12.30 noon is proved. Around 2 pm on the same day, as evident from Ext.P12, the appellant again contacted PW30 and hired his autorickshaw to reach at Thalayad Padikkalvayal for purchasing toddy and from there to Thalayad town. PW5 one of the shop owners near Gramin bank and PW6 a petty shop owner testified that they had an occasion to see the appellant near Gramin Bank at Thalayad at about 3 p.m. The fact that the appellant went to the toddy shop at Padikkalvayal for purchasing toddy is further corroborated by the oral evidence of PW4. In view of the evidence adduced by the prosecution, the only inference, which could be drawn is that the deceased was at Manicherimala between 12.30 noon and 2.30 pm on 3.7.2013. 32. Recovery of valuables worn by the deceased from the appellant is of considerable importance. The appellant was arrested on 5.7.2013 by Ext.P6 arrest memo. On being questioned, the appellant confessed as per Ext.P28 and as led by him, proceeded to Room No.170 and after handing over MO18, which was seized at the time of arrest by the appellant, opened the room and recovered MO1 mobile which was concealed under the mat. MO4 series three pieces of gold chain, MO5 series gold bangles, MO6 stud and MO7 screw of the stud were also seized. **Crl.A.No.146 of 2016** ## **:-22-:** Again the appellant had taken MO2 lungi and MO3 shirt from the western corner of the room. PW32 prepared Ext.P2 mahazar in the presence of PW25 the Fingerprint Expert. PW32 testified that the room was opened by the appellant and the above articles were seized by PW32 as taken by the appellant himself. 33. In this connection, PW14 Balakrishnan, the gold appraiser, tested and verified MO4 series, MO5 series, MO6 and MO7 and confirmed that the above material objects are gold ornaments having requisite purity of gold. On going through the entire evidence, we are satisfied that the confession statement is rightly recorded by PW32 in accordance with Section 27 of the Evidence Act. The information which led to the discovery of Material objects is proved before court. All the witnesses gave evidence clearly to support the recovery of material objects. The most important circumstance for the prosecution in this case is the disclosure statement of the appellant and recovery of the stolen properties and the dress worn by the appellant at the time of occurrence. The admissibility of the statement made by the appellant to the Police is challenged on two grounds. Firstly, no such statement was made and secondly, the statement made was inadmissible in evidence. On going through the evidence let in **Crl.A.No.146 of 2016** ## **:-23-:** this case, it is clear that the prosecution adduced evidence in accordance with the procedure provided under Section 27 of the Evidence Act. 34. PWs.16 and 21 adduced evidence to show that MO1 mobile phone was used by Leela prior to the occurrence. PW25 is the Fingerprint Expert, who was present at the time of recovery of MO1. He had taken a chance print from MO1. One of the contentions taken by the appellant is that the chance print might have been impressed on the mobile phone by the appellant while the appellant was taking the phone from the room at the time of recovery. The contention is logical. However, no question was asked either to the Fingerprint Expert or to PW32 at the time of cross-examination challenging the mode of recovery effected by PW32. Assuming for arguments' sake that the contention of the appellant is correct, still, no satisfactory explanation was offered by the appellant under what circumstances the appellant came into possession of the mobile phone of the deceased. PW25 the Fingerprint Expert discharged his official duties at the time of effecting recovery. All the official acts are presumed to be done rightly. There is no contra evidence to show that PW25 in collusion with PW32 created false evidence to book the appellant. **Crl.A.No.146 of 2016** ## **:-24-:** 35. It is also contended by the appellant that the key of the room was seized by the investigating officer at the time of arrest and was handed over to the appellant at the time of effecting recovery for opening the room. This procedure cannot be doubted simply for the reason that PW32 had no option other than seizing the key from the appellant while conducting body search. Immediately after the arrest, he recorded the confession statement of the appellant and proceeded to the place where the material objects were concealed as led by the appellant. PW32 did not get sufficient time to forward MO8 to the court immediately. PW32 effected recovery within 24 hours from the date of arrest and produced the appellant before court in accordance with law. The investigation conducted in this respect by PW32 is trustworthy. The contention raised by the appellant regarding the recovery of MO8 and handing over the same to the appellant while effecting recovery is too technical and is liable to be discarded. 36. In **Wasim Khan** v. **State of U.P.** [AIR1956 SC 400], the Apex Court considered the recent possession of the property of the deceased, in circumstances clearly indicating that he had been murdered and robbed, so as to suggest that not only the possessor of the property is a thief or a receiver of the stolen **Crl.A.No.146 of 2016** ## **:-25-:** property, but it has also been indicated that he was guilty of a more aggravated crime which had a connection with the theft. 37. Recent and unexplained possession of the stolen property where murder and robbery have been shown to form parts of one and the same transaction, the law generally presumes under Section 114 of the Evidence Act that the appellant is guilty on the charge of robbery. Following this legal principle, in **Ganesh Lal** v. **State of Rajasthan** , [(2002) 1 SCC 731], the Apex Court considered the entire case law on the subject including the decisions in **Baiju** v. **State of M.P.** [(1978) 1 SCC 588], **Earabhadrappa** v. **State of Karnataka** [(1983) 2 SCC 330], **Mukund @ Mishra & Another** v. **State of M.P.** [1997 AIR SCW 2580] and **A.Devendran** v. **State of T.N.** [(1997) 2 SCC 720], and stated the law in the following words:- “S.114 of the Evidence Act provides that the court may presume the existence of any fact, which it thinks likely to have happened, regard being had to common course of natural events, human conduct, public and private business, in their relation to facts of the particular case. Illustration (a) provides, that a man who is in possession of stolen goods soon after the theft, may be presumed by the court to be either the thief or one who has received the goods, knowing them to be stolen,unless he can account for his possession. The presumption so raised is one fall in law. In the facts of circumstances of the given case, relying on the strength of the presumption, the court may be dispensed with direct proof of certain such facts as can be safely presumed to be necessarily existing, by applying the logic and wisdom underlying S.114, where of persons more than one, have **Crl.A.No.146 of 2016** ## **:-26-:** taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty, not only of the offence of theft or dacoity, but also of offences forming part of the same transaction.” 38. PW6 and PW7 deposed that the appellant was seen wearing MO2 and MO3 on 3.7.2013 after 3 pm. PW21 and 30 supported the version of the prosecution that Mos.2 and 3 were the dress worn by the appellant at the time of the incident. MO2 and 3 were forwarded to the Forensic Science Laboratory for examination along with the other items which were collected from the place of occurrence by PW19. In Ext.P33 report, it is specifically reported that item Nos.1,4 and 5 contained human blood. Item No.1 is MO18 metallic chopper. In view of the overwhelming evidence adduced by the prosecution, it is invariably not necessary to establish the human blood by conducing DNA test. No explanation was offered by the appellant as to how the articles seized from the possession of the appellant contained human blood. 39. On a reading of Ext.P3 inquest report, it is seen that the body was dragged from the backyard to the house after the incident. Ext.P9 postmortem certificate and evidence let in by PW17 would show that there were postmortem injuries and the left palm of the deceased was amputated with an intention of stealing **Crl.A.No.146 of 2016** ## **:-27-:** MO5 bangles from the body of the deceased. On going through the entire facts and circumstances, the prosecution has succeeded in proving both ante mortem and postmortem injuries in Ext.P9 beyond doubt. 40. Motive is relevant in a case where the prosecution mainly relies on circumstantial evidence. According to the prosecution, the appellant and deceased Leela conspired to murder Panayullakandi Gopalan and accordingly, the appellant murdered the said Gopalan on 4.3.2013 . However, Leela failed to pay Rupees Three lakh to the appellant as remuneration to the deal. Hence, it was alleged that the appellant decided to do away with Leela. It is a fact that the motive alleged by the prosecution was not proved in evidence. However, the fact remains that the very same appellant was tried for the offence of murder in connection with the death of Panayullakandi Gopalan and after trial, the appellant was convicted and sentenced to undergo imprisonment for life. He was undergoing sentence in the said case as well. Hence, it is a fact that allegations levelled by the prosecution are true to facts. 41. In this case, the circumstances from which the conclusion of guilt to be drawn have been established by the **Crl.A.No.146 of 2016** ## **:-28-:** prosecution. The facts so established are consistent only with the hypothesis of the guilt of the appellant. It is also not possible to explain on any other hypothesis. All the circumstances proved by the prosecution in evidence are of conclusive in nature and they have excluded every other possible hypothesis. The chain of evidence is complete and is inconsistent with the innocence of the appellant. We have carefully analysed the evidence on record in the background of the above principles highlighted in **Sharad Birdhi Chand Sarda** v. **State of Maharashtra** [AIR 1984 SC 1622] and we are of the view that the prosecution has established the offences alleged against the appellant beyond reasonable doubt. 42. In view of the conclusions and findings based on evidence, with regard to the appellant, we are of the view that the prosecution has succeeded in proving that the appellant committed house trespass at the residence of PW16 at Manicherimala in order to commit robbery and murder as alleged by the prosecution. Thereafter, the appellant voluntarily caused hurt on the deceased and murdered her intentionally. It is a clear case of murder for gain. In our opinion, the judgment and order of conviction passed by the trial court contained positive proof, credible evidence, sequence of events and circumstances linking **Crl.A.No.146 of 2016** **:-29-:** the appellant with the commission of house trespass, robbery and murder. Resultantly, we uphold the judgment of conviction and order on sentence passed by the court below in S.C.No.735/2014 for several reasons stated supra. This Criminal Appeal is dismissed. Sd/- **A.HARIPRASAD, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/