Ramachandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 CRL.A NO. 873 OF 2019** **AGAINST THE JUDGMENT DATED 05.11.2018 IN SC NO.401/2013 OF THE ADDITIONAL DISTRICT & SESSIONS COURT - IV, PATHANAMTHITTA APPELLANT/ACCUSED:** **RAMACHANDRAN, AGED 52 YEARS S/O.KUNJUKUNJU, C.NO. 3099, CENTRAL PRISON & CORRECTIOANL HOME, POOJAPPURA, THIRUVANANTHAPURAM, AND RESIDED AT KURANTHAYIL VEEDU, KOCHUMETTUPPURAM, MARAMOM MURI, KOIPURAM VILLAGE.** **BY ADV ADV.P.G.JAYASHANKAR(STATE BRIEF)** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **2 THE SUB INSPECTOR OF POLICE KOIPURAM POLICE STATION.** **BY ADV SMT.AMBIKA DEVI S., SPECIAL GOVERNMENT PLEADER** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.873 of 2019 2 **K. VINOD CHANDRAN & C. JAYACHANDRAN, JJ. ---------------------------------------------Crl.Appeal No.873 of 2019 ---------------------------------------------Dated this the 1[st] August, 2022** ## **JUDGMENT** **Vinod Chandran, J.** **A petty attempt to steal rubber sheets ended with the brutal murder of a septuagenarian; a house wife who was alone in the house. The charge was of A1 and A2 having trespassed into the house of the deceased to steal rubber sheets and on detection, a confrontation ensued between the deceased and the accused. A1, brutally stabbed the deceased with a knife and stole the ornaments from the dead body. A1 and A2 then ran outside to the jeep of A3, in which they had come to the house of the deceased. Both the accused climbed in and A1 spoke of the scuffle ending in the stabbing, to A3; the latter of whom shared the proceeds of the thievery, having actively involved in selling the stolen ornaments.** **2. A3 turned approver and was examined as PW2. The prosecution in the trial against A1 and A2 paraded 23** Crl.Appeal No.873 of 2019 3 **witnesses and marked Exts.P1 to P40, some of the documents in series and produced 11 materials objects. The defence did not examine any witness and marked D1 contradiction. A1 was sentenced to life and fine of Rs.20,000/- under Section 302, RI for 7 years and fine of Rs.10,000/- under Section 392, RI for 3 months under Section 447 and RI for 2 years under Section 511 (1) of Section 201 with appropriate default sentences. A2 was sentenced to simple imprisonment for three terms of which the longest was ten months. The appeal is by A1 and A2 already underwent the sentence imposed.** **3. Adv.P.G.Jayasankar, learned State Brief, appeared and argued for the appellant. The learned counsel took us through the evidence let in, at the trial and raised 15 points against the conviction and sentence. It was argued that PW2 was not a reliable witness and there was no corroboration in any material particular. From the deposition of PW2 it was pointed out that there were very significant contradictions, as seen from the S.164 statement, Ext.P2. PW2 and PW8 though acquainted, spoke in different voices about the transactions between** Crl.Appeal No.873 of 2019 4 **them. The prosecution did not attempt to trace out the origin of the knife and they do not have a case that the knife was carried by A1. The recovery of MO5, is doubtful insofar as the accused, after the alleged crime ought to have gone in the opposite direction to hide the same and then come back to make their escape, in the jeep parked on the road. The knife was recovered from the northern side of the house while the jeep was parked towards the southern side. According to the learned counsel, this would not be normal human conduct, especially of trespassers taken by surprise and involved in a scuffle, wherein a lady was stabbed to death. Any sensible person would only try to escape and this makes the recovery very suspicious.** **4. Though the prosecution went to court with a motive of stealing rubber sheets, there is nothing brought out as to the presence of rubber sheets in the house of the deceased. PW6 who is alleged to have cleaned the septic tank in the property of the deceased, along with A1, a few days back, though spoke of A1 having queried the son of the deceased about the availability of** Crl.Appeal No.873 of 2019 5 **the rubber sheets it was proved to be an omission. Again, it was pointed out that even if the prosecution story is believed, the accused only had the intention of petty theft. On being confronted by a septuagenarian, there was no reason to stab her, especially when the victim could have been easily overpowered. PW2 had specifically spoken of the dress of A1 having been blood stained, when he boarded the jeep to make the escape but PW8 and PW9 who immediately thereafter purchased the stolen goods, did not speak of any blood on the dress of A1. The witnesses including the Investigating Officer (I.O) spoke of the ornaments being new and PW2, in his S.164 statement had disclosed only the sale of a gold chain. There is no clear identification of A1 by PW8. Neither has prosecution produced the jeep in which the accused got away nor was the ownership of the jeep proved. The jeep seized by the I.O was not sent for chemical examination. The lie of the property of the deceased is not discernible, as there is no scene mahazar, which caused prejudice to the setting up of an effective defence by the accused. The scientific evidence exculpates the** Crl.Appeal No.873 of 2019 6 **accused insofar as the sample hair taken from A1 having been found to be dyed while those recovered from the crime scene not so. Lastly the learned counsel pointed out that while A1 was convicted under Section 302, A2 was left with a flea-bite of a sentence of ten months; clearly disclosing unequal treatment. It is argued that there was no intention to murder and if at all, the offence can come only under Section 304 IPC.** **5. Smt.S.Ambika Devi, learned Special Government Pleader [Atrocities against Women and Children] would place absolute reliance on the evidence of PW2, the approver. PW2 was arrested and arraigned as A3 and his confession statement had led to the recovery of the ornaments. The prosecution, finding the case to be based on circumstantial evidence, rightly sought for pardon of A3, who was not involved in the murder but had enjoyed the fruits of the crime. A1 was identified by all the witnesses and it has been established beyond a pale of doubt that he was available in the premises, a few days back for cleaning the septic tank. He had seen the rubber sheets and had planned to steal it, to which end, on the** Crl.Appeal No.873 of 2019 7 **crucial day he trespassed into the property along with A2. It was in A3's jeep that they came to the crime scene and made a get away. The two accused who trespassed into the house was confronted by the deceased who was brutally stabbed, fearing detection. In fact the doctor who conducted postmortem had specifically spoken of defensive injuries. The attack was brutal, insofar as the deceased having been inflicted with four stab injuries.** **6. As far as the evidence of the approver the GP relied on** _**Tony @ Thomas v. State of Kerala (2021 (6) KHC 681).**_ **There is no absolute mandate that an approver's testimony requires corroboration and it is only a rule of prudence which, when adopted, need not be in all material particulars. Sufficient corroboration is available from the recovery of the weapon and the ornaments. The concealment is very clear from the confession statement and so is the authorship of the concealment. The argument of normal human conduct, is immaterial and in fleeing from a crime scene, a reasonable precaution may not occur to the perpetrators of the crime. The recovery of ornaments is clinching and PW9 who purchased the** Crl.Appeal No.873 of 2019 8 **ornaments clearly identified A1. The arguments raised as to whether the ornaments were new or used, is not significant since it was never put to the purchasers, as to whether on receipt they were seen to be used. Obviously, after the purchase, the Jeweller would have cleaned the old ornaments. There is also no prejudice caused to the accused, by the absence of a scene mahazar, since the scene of crime is graphically described in the inquest report. The I.O categorically deposed that a separate scene mahazar was not prepared since the inquest report was prepared at the crime scene, which contains a detailed description of the scene. The conviction and sentence are to be upheld, asserts the learned Special G.P.** **7. PW1, the first informant, brother-in-law of the deceased was summoned to the scene of crime on detection of the crime. On his arrival, he saw his sister-in-law lying outside the kitchen and bleeding; on the eastern side of his brother's residence. He was informed by his brother-PW3, husband of the deceased, that she had suffered stab injuries on her chest. He** Crl.Appeal No.873 of 2019 9 **identified the FIS marked as Ext.P1 and also the dress worn by the deceased as MO1. He deposed that the deceased was staying along with her husband, son and daughter-inlaw. The husband and the son regularly goes for work; the former in a financial institution and the latter in a computer institute. PW3 is the husband of the deceased who first detected the murder. On the crucial day, that is on 25.9.2008, himself, his wife and son were in residence, his daughter-in-law having gone to her family house. Both himself and his son proceeded for work in the morning and he came back between 4.20 pm to 4.30 pm. His property has a total extent of 2.25 acres and the residential house on the south-western portion of the property, faces west. There are two entrances, one a small gate into a pathway, on the south, and a large one on the west, opening into the '** _**Muttumon-Iyrekavu'**_ **road. The backyard of the house is on the east and the property is at various levels. He identified A1 and A2 and also deposed that A1 had cleaned the septic tank in his house a few days back, specifically on 21.9.2008. The Plumber, one Moncy (PW4) detected that the septic tank was full** Crl.Appeal No.873 of 2019 10 **and it was PW4's helper (PW5) who entrusted one Kunjumon (PW6) to do the job. PW6 brought A1 also to clean the septic tank and both of them were in the property till about 7.00 p.m.** **8. On 25.9.2008, PW3 came home after work and entered the compound through the western gate. Since the front door was locked, he pressed the calling bell but there was no response. Through the southern side, he reached the backyard, on the east, where he saw his wife's body lying comatose. He immediately called his neighbours and on close scrutiny it was found that the dress of his wife was drenched in blood and there were ants on her face. He was shocked and the neighbours made phone calls when PW1, his brother came. He deposed that his wife used to wear a chain, bangle and ring, all of gold, which were not found on the body. The dress worn by the deceased was identified as MO1 and the stolen ornaments, subsequently recovered, as MO2 to MO4. PW4-the Plumber, PW5-his helper and PW6-Kunjumon corroborated the version of PW3 regarding A1 having been engaged in cleaning the septic tank in the house of PW3.** Crl.Appeal No.873 of 2019 11 **9. PW15 is the doctor who issued the certificate** **after the postmortem examination. The certificate was marked as Ext.P10 and the injuries were deposed to be abrasive contusions on the ears, crescentic abrasions on the cheek and chin, nail mark on the right side of neck, incised wounds on the chest and on the arms and fingers, chop wound on the front and inner aspect of right forearm, incised wound on the right breast, stab wound on the right hypochondrium, incised wound in the epigastric region, stab wounds on the left hypochondrium and the right inguinal region. According to the doctor, the 18 injuries noted were ante-mortem and injury Nos.6 to 13 were defensive wounds. Injury Nos.1 to 5 could be caused in the course of a scuffle, if the assailant used a sharp weapon. MO5 knife was deposed to be possible of causing the aforesaid injuries, according to the doctor. The opinion as to cause of death was due to stab wound sustained to the abdomen. In cross-examination it was deposed that death was due to shock and loss of blood as a result of stab injury sustained to the abdomen. The death hence was a homicide.** Crl.Appeal No.873 of 2019 12 **10. Admittedly, there was no eye witness. The motive projected by the prosecution is an attempt to steal rubber sheets. But however, there is no evidence let in, to show the presence of rubber sheets in the property. In fact PW6 spoke of the presence of rubber sheets and A1 having asked the son of the deceased, whether there are rubber sheets; presumably for sale. The presence of rubber sheets and the query made by A1, were marked as omissions in the prior statements. We have to immediately notice that, motive is not imperative even in a case built solely on circumstantial evidence and if established would only form another link in the unbroken chain of circumstances.** **11. PW2, is the approver who was arraigned as A3 when the case was originally charged. The approver's evidence was seriously challenged on the ground that he exculpates himself in the narration about the crime and he was more of a passive participant in the subsequent actions of the accused. The approver could have been a witness, but when he is a co-accused, there is a mandate to look for corroboration. The prosecution has relied on** Crl.Appeal No.873 of 2019 13 _**Tony @ Thomas**_ **(supra) to rubbish the challenge made against the approver's evidence. It was argued that therein also, the approver distanced himself from the murder and the robbery which ensued. However, therein the accused was a mute spectator to the murder and had shared the proceeds of the theft, committed after the murder. The proceeds enjoyed by the approver was only a measly amount of Rs.500/-; despite which the Court found the approver to be an accomplice to the robbery. According to the learned Special Government Pleader, the facts are almost similar.** **12. We garner support from** _**Somasundaram v. The State represented by D.C.P [(2020) 7 SCC 722]**_ **, which considered the inter play of Section 113 and Section 114(a) of the Evidence Act** _**"The combined result of Sections 133 read with illustration (b) to Section 114 of Evidence Act is that the Courts have evolved, as a Rule of prudence, the requirement that it would be unsafe to convict an Accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline**_ Crl.Appeal No.873 of 2019 14 _**of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular Accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular Accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an Accused."**_ **It is with this declaration of law in the background, that we have to look at the evidence of the approver-PW2. 13. PW2 is a driver and had a jeep of his own, which he used to ply on hire. He used to transport river sand in sacks, in the jeep and the accused were known to him, having often supplied him with river sand. On 25.9.2008 in the morning, A1 and A2 approached him and informed him that they require to hire his jeep in the afternoon to collect rubber sheet. At around 1.30, he along with A1 and A2 went to the residence of PW3, which property PW2 was not familiar with. The vehicle was parked on the eastern side of the road lying from the north to the south, at some distance from the house,** Crl.Appeal No.873 of 2019 15 **which also was situated on the same side of the road. A1 and A2 alighted from the vehicle and proceeded to the house, asking PW2 to remain in the vehicle. About 15 minutes later, both the accused came running from behind the vehicle and jumped in, with A1 asking him to move fast. PW2 inquried as to what transpired and A1 replied that, they were detected by the lady of the house and she was stabbed. PW2 asserted, that what was told to him was that A1 stabbed the lady. On looking back, PW2 saw blood, on the hands and shirt of A1 and he immediately started the vehicle and took off. Again he queried A1, when A1 said that while they were taking the rubber sheets lying on the backyard of the residence, the lady of the house came out and recognized them. She also asked them whether they were not the persons who had cleaned the septic tank, There was a scuffle between A1 and the lady and A1 stabbed her since there was no other alternative. Having said that, A1 also told him that, what has happened has happened and now they have to escape.** **14. PW2 then questioned them about the hire charges of the vehicle, which the accused had refused to** Crl.Appeal No.873 of 2019 16 **give, even in an earlier instance. He also quarreled with the accused and demanded the hire charges. A1 then asked to him to stop the vehicle near his house and assured him that he would be paid his hire charges from the gold ornaments of the lady. A1 also showed him MO2 to MO4 and asked PW2 not to sell it locally. PW2 immediately called his friend Rajesh (PW8) who was a goldsmith. Later A1 and himself, went to M.M Gold, a jewelry owned by the Uncle (PW9) of PW8. The ornaments were purchased by PW9 who gave them Rs.16,300/-. A1 received the money and took Rs.6,000/- for himself and gave A2, Rs.3000/-, at A3's residence where PW2 accompanied A1. The balance, after the hire charges, was directed to be kept with PW2 since A1 apprehended that his sister would take the money, if it is kept with him. PW2 went home and on the next day read about the murder in the newspapers. PW2 was very disturbed and did not go for work and he was arrested on 1.10.2008. He confessed the sale of gold ornaments taken from the body of the deceased, which led to the recovery of MO2 to MO4, from MM Gold and the witness identified all the three ornaments. PW2 was later remanded and then** Crl.Appeal No.873 of 2019 17 **released on bail, but his anxiety did not subside, due to strong feelings of guilt and he did not go out for work. He also repented his actions when his children fell sick and he could not even sleep. He had decided to confess during the trial, when he was summoned again by the Crime Branch. Later he appeared before the Magistrate and made the statement under Section 164 Cr.P.C, which was marked as Ext.P2. He spoke of having stated before the trial court also about the crime and he being fully conscious of the consequences of the same. The thrust of the crossexamination was regarding the illegal activities carried on by PW2, using his vehicle and the unholy nexus he had with Police Officers, whom he regularly bribed; all of which was denied stoutly by the witness. As far as the contradiction noted in the S.164 statement, he had stated only about the sale of a gold chain.** **15. We find the evidence of PW2, the approver, to be quite credible. True, he was not privy to the theft planned by the accused and he took them in his vehicle on the impression that they were collecting rubber sheets from the premises. He parked the vehicle on the side of** Crl.Appeal No.873 of 2019 18 **the road, when the two accused went inside the subject property. It is his evidence that after about 15 minutes, the two accused came running and climbed into the jeep asking him to take off from the locality. He inquired with the first accused, who told him about what transpired, which has been noticed by us graphically in the earlier paragraphs. Even on being informed of the crime, PW2 was more concerned with his hire charges, to obtain which he also facilitated the sale of stolen ornaments. It was PW2 who helped A1 & A2 to escape from the crime scene. According to him, A1 had assured him that the hire charges will be paid from the sale proceeds of stolen ornaments and he willingly and actively participated in the sale. He knew fully well that it was the proceeds of a crime, that too of a lady who was stabbed and her ornaments stolen. He heard about the murder on the next day, from newspapers and despite his repentance, he did not approach the police. Admittedly, he was arrested and on his confession statement under Section 27 of the Evidence Act, the stolen goods were recovered. The statements made are not exculpatory and** Crl.Appeal No.873 of 2019 19 **but for turning approver, the fact of recovery was a very strong incriminating circumstance against the approver.** **16. As for corroboration we have to take stock of the testimonies of the other witnesses. We have seen that A1, though not closely acquainted with the deceased, was engaged for cleaning the septic tank in the house of the deceased just a few days before the crime; which led to the victim recognizing A1. The response of A1, to the query of PW2 specifically indicated the deceased lady having recognized A1 as the person who came for cleaning the septic tank, which resulted in the scuffle. It was also the extra judicial confession of A1 that he stabbed the victim since there was no other alternative, to make an escape, especially after the lady of the house had recognized the trespassers. The factum of engagement for cleaning the tank was also spoken of by PW3 to PW6 which evidence has already been discussed by us. The recovery of gold ornaments on the confession statement made by PW2 also assumes relevance.** **17. PW8 is a goldsmith, who was also employed in a jewelry by name M.M.Gold owned by his uncle, PW9. PW2** Crl.Appeal No.873 of 2019 20 **was his classmate, who contacted him over telephone and spoke of needing some money for a hospital case, for which he wanted to sell the ornaments of his wife. PW2 came to the shop along with another person, who was identified as A1, from the dock. But PW8 also said that he can only roughly say that the person in the dock was the one who accompanied PW2. MO2 to MO4 ornaments were identified by him. He spoke of the recovery made by the Police, who were also accompanied by PW2. The minor inconsistency of the testimonies of PW2 & PW8 regarding their earlier transactions are not significant. The fact in issue is the sale of the stolen ornaments and the proceeds of the instant crime, which both witnesses spoke identically of.** **18. PW9 is the owner of the jewelry, who confirmed the purchase and also the price given. He identified MO2 to MO4, as the ornaments sold to him and identified A1 from the dock as one of the persons who sold the said ornaments in his shop. He confirmed the recovery and spoke of the same having been carried out by the Police through a mahazar. He also deposed that the** Crl.Appeal No.873 of 2019 21 **actual value was not given by him and the sellers had told him that the balance may be informed to PW8. PW10, also was a goldsmith, who used to frequent the shop of PW9. He was present when the recovery was made and he attested Ext.P5 recovery mahazar. The ornaments MO2 to MO4 were also identified.** **19. There is a contention raised by the accused that according to the witnesses the ornaments in Court looked new, while it was the deposition of PW3 that the ornaments stolen from his wife's body were used by her regularly. The identification being categorical by PW3, we do not think that the mere appearance of the ornaments would in any manner result in disbelieving the recovery. In this context we also have to notice that the ornaments were purchased by a jewelry, in the belief that it belonged to the wife of one of the sellers, and the sale was on a contingency as spoken of by the seller. PW9, the owner of the shop, had also kept the ornaments, in a safe and normally the jeweler would have cleaned the ornaments. In fact, there was no question put to any of the witnesses, as to whether the ornaments at the time of** Crl.Appeal No.873 of 2019 22 **purchase was new or used. One other argument was regarding PW8 & PW9 having not noticed any blood stains in the shirt of A1. We reject the same since PW2's testimony was that, after leaving the crime scene, they first stopped at A1's house. A1 presumably changed his shirt, especially when he was going to sell stolen ornaments.** **20. PW7, is an inconsequential witness, who spoke of A1 having called him, in the month of September of 2008 , to inquire about a job, especially since A1 was unable to remain in his own locality. However PW7 said that A1 never came. PW11 is the attestor to the recovery of MO5 knife by Ext.P6. It was PW21, the I.O, who carried out the recovery in accordance with the confession statement of A1 marked as Ext.P6(a). The knife was recovered from the property in which the crime occurred. According to Ext.P6 and as deposed by PW21, the confession was regarding the concealment of the knife, in the rubber plantation of the property of the deceased. The knife was recovered from within the rubber plantation, at a distance of 75 meters to the north of** Crl.Appeal No.873 of 2019 23 **the residential building, from amongst the boulders lying in the property. The contention of the accused is that without a proper scene mahazar the accused was prejudiced from making a proper defence regarding the recovery under S.27. According to the learned Counsel, the jeep was parked on the road in front of the house, at a distance, towards the south and there was no possibility of the accused running north, to hide the knife before making their escape. We are unable to accede to the said argument, especially since we find no such assumption possible, regarding normal human conduct. The attempt of the accused would have been to hide the knife, where it cannot be easily discovered and to make their escape after such concealment. Obviously the knife cannot be just thrown away near the residential property and hence they ran into the rubber plantation, hid the knife and made their escape in the opposite direction. As far as the absence of the scene mahazar, the I.O specifically stated that there was a description of the scene in the inquest report marked as Ext.P11. There was no cross examination on the aspect of recovery, juxtaposed with** Crl.Appeal No.873 of 2019 24 **the direction in which the concealment was carried out. The recovery of the knife having been effected and the material object, seen by the Doctor who also deposed the injuries possible of being caused by the same, is a very crucial incriminating circumstance against A1.** **21. PW12 is the Scientific Assistant who collected samples from the scene of crime, short hairs from the left hand of the deceased, blood stains, blood stained soil as also control samples of the cotton and the soil. The FSL report was marked as Ext.P7. There was no identity detected, of the hair samples collected from the scene of crime to that collected from the body of the accused, which alone does not absolve the accused. Item No.8 is MO6 knife, which shows presence of blood but the quantity was insufficient to determine the source. The presence of blood on the knife also is another link in the chain of circumstances, inculpating the accused.** **22. PW13 is the Head constable who stood guard over the body. PW14, the photographer from the Fingerprint Bureau, PW16, the witness to Ext.P11 Inquest Report and PW17, the Village Officer who prepared Ext.P12** Crl.Appeal No.873 of 2019 25 **Scene Plan. PW18 is the Senior Superintendent attached to the trial Court, who, with the permission of the Court, showed MO5 knife to PW15 and also MO2 to MO4 ornaments to the witnesses. PW19 arrested A2 and PW20 arrested A3. PW21 is the initial I.O and PW22 of the Crime Branch, who took over the investigation. PW23 produced Ext.P36 petition by which pardon was tendered to A3, who deposed as PW2.** **23. In the discussion above, of the evidence led by the prosecution we have pointed out the incriminating circumstances, of which the most important is the deposition of the PW2, the approver, who spoke of A1 having informed him of the scuffle that ensued inside the house with the lady of the house, who recognized the trespassers and A1 having stabbed her to escape from the crime scene. The testimony of the approver is corroborated by PW3 to PW6, who spoke of the engagement of A1, a few days back which led to his identification by the victim. The ornaments stolen from the victim, were sold by the accused to a jewelry, from which shop the recovery was made by the Police based on a confession** Crl.Appeal No.873 of 2019 26 **made by the approver, who at that time was one of the accused in the case. The approver, while making the sale, was accompanied by A1, who was identified clearly by PW9, the owner of the jewelry. PW8 & PW9 spoke of the purchase of the stolen ornaments and PW10 witnessed the recovery. PW8 though did not identify A1 clearly, PW9 did so, unequivocally. The ornaments were identified to be that used by the victim, by her husband. The knife used by the assailant A1 was also recovered on his confession statement, which recovery was attested by PW11, an independent witness. The knife, on scientific examination was detected with blood, though the source cold not be identified. The above circumstances provide a chain, unbroken and pointing only to the guilt of the accused and not bringing forth any hypothesis of innocence or even a probability of the crime having occurred, in any other manner than as projected by the prosecution.** **24. We find the arguments raised by the learned Counsel for the appellant to be devoid of merit and not persuasive enough to dislodge the finding of guilt as entered into by the Sessions Court. We do realize the** Crl.Appeal No.873 of 2019 27 **attempt to steal rubber sheets, having not been established; which has been projected as the object behind the trespass. But that does not result in disbelieving the approver, to whom what transpired inside the property was narrated, which was definitely a trespass, as spoken of by A1 himself. A1 had also spoken of being accosted when they were taking the rubber sheets from the backyard. We also notice that the jeep owned by the approver, though seized was not produced before Court. The approver says that despite the jeep having been released to him, he had sold the vehicle. In this context we have to notice that the defence does not at any point challenge the approver's testimony of owning a jeep and plying it for hire. In fact, the definite crossexamination was regarding the approver having plied the jeep for illegal transportation of sand; which remained a mere suggestion denied by the witness and not substantiated by the defence.** **25. We reject the contention of the learned Counsel for the appellant that the lack of scientific evidence exculpates the accused and also that of A1 and** Crl.Appeal No.873 of 2019 28 **A2 requiring equal treatment. First of all there cannot be any equity as against the accused in a criminal case; whose culpability for the offence will have to be decided on the basis of the intention, the overt act and the specific conduct before and after the crime. The trespass as seen from the evidence was not intended with the object of murder and it was accidentally that, both A1 & A2 were accosted by the lady of the house. There is no case that A2 was recognized, especially since the recognition was specifically on the aspect of the engagement for cleaning the septic tank, which occurred a few days back. The evidence regarding such acquaintance is only against A1 and it was A1, who carried the knife and brandished it fatally, to escape from the crime scene. True, the prosecution does not have a case that A1 carried the knife but from the recovery made of the knife from the place of concealment, A1 is presumed to be the person who used the weapon and it is always a reasonable inference that he carried it. There is also no merit in the contention that the authorship of concealment is not evident from the confession statement. When the accused** Crl.Appeal No.873 of 2019 29 **says that he will recover the weapon from its place of concealment, the only presumption is that it was the accused, who concealed it. We find the conviction entered by the trial Court to be beyond any pale of doubt and the sentence to be proper in the facts and circumstances.** **We reject the appeal upholding the impugned** ## **judgment.** **Sd/-** **K. VINOD CHANDRAN, JUDGE Sd/-** **C. JAYACHANDRAN, JUDGE** **Mrcs/sp**