Ratheesh v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 CRL.A NO. 608 OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 24.04.2019 IN SC 172/2013 OF II ADDITIONAL SESSIONS COURT,PALAKKAD ``` ``` APPELLANT/ACCUSED: ``` ``` RATHEESH AGED 40 YEARS S/O CHANDRAN, THANNEERPANTHAL, PALLANCHATHANOOR MATHURR, PALAKKAD, PIN - 678571 BY ADV RESMI NANDANAN ``` ## **`RESPONDENT/COMPLAINANT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV.SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.608 of 2022 2 **P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------Crl.Appeal No.608 of 2022** **----------------------------------------------Dated this the 10[th] day of November, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The sole accused in S.C.No.172 of 2013 on the files of the Additional Sessions Court-II, Palakkad, who stands convicted and sentenced for the offences punishable under Sections 449, 392, 397 and 302 of the Indian Penal Code (IPC) impugns in this appeal, his conviction and sentence in the said case. 2. The case pertains to the murder of one Madhavi. The occurrence took place on 23.08.2011. Madhavi was residing during the relevant period with PW1, her son and PW15, her grandson. PW1 who was working in a private firm used to leave the house for work normally at about 8.30 a.m. and would return Crl.A.No.608 of 2022 3 at about 8.30 p.m. PW15 who was studying for an animation course at the relevant time would leave the house normally at about 9.00 a.m. and would return at about 6.00 p.m. Madhavi alone would be there at home during day hours. The house of the accused is about 100 metres away from the house of Madhavi. The accused used to frequent the house of Madhavi for watching television. On the date of occurrence, PW1 and PW15 left home as usual and when PW15 returned, he found Madhavi lying on the floor of the drawing room with her head leaning against the nearby sofa. Since Madhavi was not responding to his calls, PW15 informed the matter to the neighbours and as they found that Madhavi is no more, one among them contacted PW1 and accordingly, PW1 reached home at about 6.30 p.m. On finding that his mother is no more, PW1 informed the matter to the police and a case was accordingly registered. PW27 started investigation in the case and the investigation was continued thereafter by PW28 and thereafter by PW29. PW29 completed the investigation and submitted the final report against the accused, after complying with the procedural requirements, alleging Crl.A.No.608 of 2022 4 commission of the offences punishable under Sections 449, 392, 397 and 302 IPC. 3. The accusation against the accused in the final report is that at about 3.00 p.m. on 23.8.2011, while Madhavi was watching television in the drawing room of her house, the accused, with the intention of committing robbery of the gold ornaments worn by Madhavi after causing her death, trespassed into the house and caused the death of Madhavi by strangulating her using the service wire of a pedestal fan, the cord of an iron box and also by smothering/throttling her with his hands, and robbed 6¼ sovereigns of gold ornaments worn by her. 4. The Jurisdictional Magistrate took cognisance of the offences alleged against the accused and committed the case for trial to the Court of Session, after complying with the procedural formalities. Upon consideration of the records and after hearing the prosecution and the accused, the Court of Session framed charge against the accused under Sections 449, 392, 397 and 302 of IPC. When the charge was read over and explained, the accused pleaded not guilty. The prosecution, Crl.A.No.608 of 2022 5 thereupon, examined 29 witnesses as PW1 to PW29 and proved 30 documents as Exts.P1 to P30. The prosecution has also caused the witnesses examined on its side to identify MO1 to MO13 material objects. Exts.D1 to D3 are portions of the statements recorded under Section 161 of the Code of Criminal Procedure (the Code) from PWs 4, 5 and 12 respectively which were marked at the instance of the accused in the course of the evidence. Ext.D4 is the certified copy of an application preferred by PW1 and others under Section 451 of the Code for release of the stolen articles, before the Jurisdictional Magistrate marked at the instance of the accused in the course of the evidence of PW1. The accused was thereupon questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution against him. The accused denied the same and maintained that he is innocent. Since the trial court did not consider the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused, however, chose not to adduce any evidence. Crl.A.No.608 of 2022 6 5. Thereupon, on an appraisal of the evidence on record, the trial court found the accused guilty of offences punishable under Sections 449, 392, 397 and 302 IPC, and accordingly convicted and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 302 IPC, to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 449 IPC, to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- for the offence punishable under Section 392 IPC and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- for the offence punishable under Section 397 IPC. It was also ordered that the substantive portion of the sentence shall run concurrently. The accused is aggrieved by the conviction and sentence in the case and hence, this appeal. 6. Heard Adv.Resmi Nandanan, the learned counsel for the accused as also Adv.Ambika Devi S., the learned Special Public Prosecutor. 7. The learned counsel for the accused did not Crl.A.No.608 of 2022 7 contend either that the death of the victim was not a homicide or that the same would not amount to murder going by the case put forward by the prosecution. On the other hand, the essence of the elaborate submissions made by the learned counsel for the accused was that inasmuch as the case being one resting on circumstantial evidence, the evidence let in by the prosecution does not prove the guilt of the accused beyond reasonable doubt. The learned Special Public Prosecutor resisted the said contention by taking us through the evidence of the witnesses. According to the learned Special Public Prosecutor, the only inference possible from the materials is the guilt of the accused. As we are referring to the evidence to which our attention was drawn by the learned Special Public Prosecutor elaborately in the latter part of this judgment, we are not mentioning the same here. 8. The point that arises for consideration, in the circumstances, is whether the prosecution has proved the guilt of the accused beyond reasonable doubt. 9. Before dealing with the point, it is necessary to refer to the evidence in the case, as the point formulated needs to 8 Crl.A.No.608 of 2022 be answered having regards to the circumstances brought out by the prosecution against the accused in the evidence. 10. PW15 is the first person who saw the body of the deceased after the occurrence. He is the son of one of the daughters of the deceased. PW15 testified that he was staying with the deceased; that he left home on that day as usual at about 9.00 a.m. and that when he returned home at about 6.00 p.m., he found the deceased lying on the floor of the drawing room with her head leaning against the nearby sofa. He testified that the cord of the iron box was seen around her neck at that time and the gold ornaments usually worn by her were missing. He identified MO1 gold ring, MO2 gold chain and MO3 series gold bangles as the gold ornaments usually worn by the deceased. PW15 testified that the accused is his neighbour and that he used to come to their house to watch television. PW15 testified that MO4 was the cord of the iron box which was found to be tied on the neck of the deceased when he saw her body. PW1, the son of the deceased testified that he was residing with the deceased and PW15, and on the date of occurrence, as required by one of his Crl.A.No.608 of 2022 9 neighbours, when he returned home at about 6.30 p.m., he found his mother in the same condition as spoken to by PW15. In addition, PW1 also testified that blood was oozing out from the nostril as also mouth of the deceased. PW1 also identified MO1 gold ring, MO2 gold chain and MO3 series gold bangles as the gold ornaments usually worn by the deceased. In addition, PW1 identified MO4 cord of the iron box which was found to be tied on the neck of the deceased when he saw her body. PW1 testified that it is he who furnished to the police the information concerning the death of his mother and identified his signature in Ext.P1 First Information Statement. Even though the evidence tendered by PW15 as regards the identification of the gold ornaments usually worn by the deceased was not challenged in cross-examination by the accused, there was cross-examination on that part of the evidence tendered by PW1 on the ground that PW1 did not give particulars like the design, weight etc. of the ornaments in Ext.P1 statement and also in the subsequent statements given by him to the police. True, in Ext.P1 statement and in the subsequent statements given by PW1 to the police, he 10 Crl.A.No.608 of 2022 did not disclose the particulars like the design, weight etc. of the gold ornaments. But, the same, according to us, is not a reason to doubt the veracity of the evidence tendered by PW1 as regards the identity of the lost gold ornaments. As regards the remaining part of the evidence tendered by the PW1 and PW15, we find that there was no serious cross-examination. 11. PW4 is a person who is residing in the close vicinity of the house of the deceased at the relevant time. The house of the deceased is situated on the north-eastern side of the house of PW4 and the access to the house of the deceased is through the narrow lane situated on the east of the house of PW4. PW4 testified that a person who stands in his residential compound can see the house of the deceased; that he was at home on the date of occurrence as it was his birthday and as a lunch was arranged for his family members on that day as he had cleared a selection conducted by the Public Service Commission; that after the lunch, at about 2.30.p.m., while he was propping up a banana plantain, he saw the accused walking along the way that starts from the house of the deceased towards the road. PW6 Crl.A.No.608 of 2022 11 is a person who was working in a furniture shop at Chungamannam. He testified that on 23.08.2011, after taking lunch from his home, while he was waiting for the bus at the bus stop at Thaneerpanthal to go to the shop, he saw the accused walking along the way near a Kudumbashree building situated near the house of the deceased. PW7 is a person who is running a tea shop near the house of the deceased. He testified that on the date of occurrence, the accused came to his shop at about 10.00 a.m. and took a meal first and then a tea thereafter and was sitting there reading the newspaper till he closed the shop at about 1.30 p.m. The fact that the aforesaid three witnesses, namely PW4, PW6 and PW7 are persons who have prior acquaintance with the accused, is not in dispute. The accused has no case that the aforesaid witnesses, except PW4, have any reason to give false evidence against him. As regards PW4, of course, there was a suggestion that he is an office bearer of the political party CPI(M) and that he was therefore deposing falsehood at the instance of PW1, who is a supporter of the said political party. But, PW1 denied having maintained any Crl.A.No.608 of 2022 12 connection whatsoever with the political party referred to above. We have meticulously analysed the evidence tendered by the aforesaid three witnesses and we do not find any reason to disbelieve their evidence. On the other hand, we found the evidence tendered by the said witnesses to be real, natural and convincing. 12. PW2 is the proprietor of a Jewellery. He testified that on 23.08.2011 at about 5.30 p.m., he purchased MO3 series gold bangles from the accused for a sum of Rs.40,000/- and paid to him a sum of Rs.20,000/- towards part of the sale consideration. He also testified that on 24.08.2011 at about 4.10 p.m., the police party came to his shop with the accused and recovered the said gold bangles from his shop as identified by the accused. PW2 is an attestor to Ext.P2 Mahazar prepared by the investigating officer while effecting seizure of MO3 series bangles, and he identified his signature in Ext.P2 mahazar. Nothing was brought out in the cross-examination of this witness to discredit him. 13. PW11 is a carpenter. It has come out that the Crl.A.No.608 of 2022 13 accused who is also a carpenter had worked with PW11 on various occasions. PW11 testified that he sought financial help from the accused and the accused gave him a sum of Rs.3,000/- after about ten days, on 23.08.2011 . PW11 testified that the amount was given at about 6.00 p.m. on the said day at a local bar where they joined for drinks. 14. PW20 was the Police Surgeon who conducted post-mortem examination on the body of the deceased. PW20 testified that he found a ligature made of the cord of black iron box around the neck of the deceased with a slip knot on right side. Ext.P13 is the post-mortem certificate. PW20 opined that the deceased died due to ligature strangulation. He further opined that there was evidence of throttling and smothering also. 15. PW23 was the Assistant Surgeon attached to the District Hospital, Palakkad who examined the accused on 25.08.2011. He testified that at the time of examination, he noted an abrasion injury having a size of 0.5 x 0.5 cm on the right arm of the accused with granulation at edge of age approximately greater than two days and less than one month. Crl.A.No.608 of 2022 14 Ext.P30 is the wound certificate issued by PW23 in this regard. PW23 also testified that he collected pubic, axillary, chest and scalp hair samples of the accused for DNA examination and handed over the same to PW28 on 22.09.2011. As there was long delay in handing over the hair samples to the investigating officer, in response to a court question, PW23 clarified that if samples are not received by the officials on the same day itself, the sealed packets will be kept in a separate carton and will be sealed again and kept in the official cupboard which is in the charge of the casualty medical officer on duty. 16. PW25 is the officer attached to the Forensic Science Laboratory, Thiruvananthapuram who examined the objects sent for DNA typing in connection with the subject crime and issued Ext.P19 report. PW25 testified that DNA typing done on the tissue particles found in the nail clippings collected from the deceased revealed that the said tissue particles belong to the deceased as also the accused. He also testified that in the course of a struggle, if the victim has defended himself/herself, the possibility of the tissues of the perpetrator appearing in the nails Crl.A.No.608 of 2022 15 of the victim, cannot be ruled out. 17. PW27 is the police officer who started the investigation in the case. It is PW27 who arrested the accused on 24.08.2011 at 3.30 p.m. from the K.S.R.T.C bus stand, Palakkad. PW27 testified that during interrogation, the accused informed him that he sold four gold bangles in a Jewellery near the bus stand and on the basis of the said information, he proceeded to the Jewellery of PW2 as guided by the accused and at the Jewellery, the accused identified PW2 as the person to whom he sold the gold bangles as also MO3 series gold bangles kept therein. PW27 testified that PW2 also identified the accused and informed him that MO3 series gold bangles were sold to him by the accused. Exts.P22 and P22(a) are the extracts of the information, on the basis of which MO3 series gold bangles were discovered and seized by PW27 from the shop of PW2. PW27 also testified that later, the accused informed him that the accused kept a gold chain, a gold ring and a certain amount of money at a place behind the Palakkad Stadium Bus stand in a plastic cover, and on the basis of the said information, he proceeded to that Crl.A.No.608 of 2022 16 place as guided by the accused from where the accused took out a plastic cover containing MO1 gold ring, MO2 gold chain and Rs.16,000/-. Ext.P5 is the seizure mahazar prepared in connection with the seizure of the said articles and cash and Ext.P22(b) is the extract of the information which led to the discovery and seizure of the said articles. PW27 identified MO7 as the plastic cover in which MO1 gold ring, MO2 gold chain and MO9 series cash were kept by the accused after wrapping the same in MO8 piece of newspaper. PW27 also testified that during the course of investigation, PW11 produced before him the amount given to him by the accused on the date of occurrence and the same was seized by him as per Ext.P6 mahazar as the same was found to be part of the sale proceeds of the gold bangles sold by the accused to PW2. Nothing is seen brought out by the accused in the cross-examination of PW27 as regards the evidence tendered by him that he discovered and seized MO1 gold chain, MO2 gold ring and MO3 gold bangles based on the information furnished by the accused, except the suggestion that the witness to one of the seizure mahazars prepared in this Crl.A.No.608 of 2022 17 regard is a relative of PW1. There is nothing on record to indicate that the witness to one of the seizure mahazars is a relative of PW1. Even if it is so, we do not think that the same is a reason to disbelieve the evidence tendered by PW27 as regards the discovery and seizure of the gold ornaments referred to above. 18. From the evidence let in by the prosecution as mentioned in the preceding paragraphs, we find that the following circumstances stand proved: (i) That the accused is a person who resides in the neighbourhood of the house of the deceased and is a person who used to frequent the house of the deceased for watching television; (ii) That the accused came to the tea shop of PW7 near the residence of the deceased on the date of occurrence at about 10.00 a.m. and remained there till 1.30 p.m. (iii) That PW4, the neighbour saw the accused walking towards the road on the south of his house through the way that leads to the said road from the house of the deceased at about 3.00 p.m. on 23.08.2011. (iv) That PW6 found the accused in the vicinity of the of the house of the deceased at about 3.15 p.m. on 18 Crl.A.No.608 of 2022 ## 23.08.2011. (v) That MO3 series gold bangles usually worn by the deceased were discovered and seized from the shop of PW2 on 24.08.2011, based on the information furnished by the accused that he sold the same to PW2. (vi) That the accused who received a sum of Rs.20,000/- from PW2 towards sale consideration of MO3 series gold bangles on the date of occurrence, gave to PW11 Rs.3,000/- on the same day in furtherance to the financial help sought by PW11 on an earlier occasion. (vii) That MO1 gold ring and MO2 gold chain worn by the deceased prior to the occurrence were discovered and seized based on information furnished by the accused on 24.08.2011; (viii) That an abrasion injury having a size of 0.5 x 0.5 cm on the right forearm with granulation tissue at edge, of age approximately within two days was noticed by PW23 when he examined the accused on 25.08.2011 at 2.30 p.m. (ix) That DNA typing done on the tissue particles found in the nail clippings collected from the deceased revealed that the same belong to the deceased as also the accused. The question is as to whether the circumstances aforesaid are sufficient to hold that it is the accused who caused the death of Crl.A.No.608 of 2022 19 Madhavi and committed robbery of the gold ornaments worn by her. 19. As this is a case resting on circumstantial evidence, it is necessary to keep in mind the requirements of law as regards the conditions to be satisfied for holding the accused guilty. They are (i) that the circumstances from which the conclusion of guilt is to be drawn shall be of conclusive nature; (ii) that the circumstances shall be fully established; (iii) that the circumstances so established shall be consistent with the hypothesis of the guilt of the accused, that is to say, they shall not be explainable on any other hypothesis and (iv) that there shall be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and shall also show that in all human probability, the death must have been caused by the accused. Reverting to the facts, the accused does not offer any explanation as to the reason why he had been to the place near the house of the deceased at about 3.15 p.m. on the date of occurrence, if he had not been to the house of the deceased then. The accused 20 Crl.A.No.608 of 2022 also does not offer any explanation as to how he happened to be in possession of the gold ornaments usually worn by the deceased. He does not offer any explanation as to how he sustained the injury on his right forearm as noticed by PW23. He does not offer any explanation as to how his tissue particles happened to be found in the DNA typing done on the tissue particles found in the nail clippings collected from the deceased. That apart, Section 114 of the Indian Evidence Act which enables the Court to presume the existence of certain facts provides that “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” Illustration (a) to Section 114 provides that the court may presume that a man, who is in possession of stolen goods soon after the theft is either the thief or he has received the goods knowing them to be stolen, unless he can account for his possession. The Indian Evidence Act defines the expression “may presume” thus: Crl.A.No.608 of 2022 21 “Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.” Inasmuch as the expression “may presume” is used in Section 114, the Court may either regard the fact as proved, unless and until it is disproved, or may call for proof of it. No doubt, the presumption under Section 114 (a) can be invoked only if the stolen articles are found to be in the possession of a person concerned, soon after the theft. In the instant case, the stolen articles were recovered at the instance of the accused on the day succeeding the date of occurrence. The accused does not offer any explanation as to how he happened to be in possession of the gold ornaments usually worn by the deceased. In the absence of any explanation from the accused that he received the ornaments from someone else, it can be presumed that they were stolen by him. But the larger question is whether, having regard to the facts of the case on hand, the presumption should be extended to the perpetration of the offence of robbery or murder or both. This question has been answered by the Apex Court in **Raj Kumar v.** Crl.A.No.608 of 2022 22 **State (NCT of Delhi)** , (2017) 11 SCC 160, holding that with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder can be brought home, if there is some evidence to show that the robbery and the murder occurred at the same time, i.e., in the course of the same transaction. In the case on hand, the accused does not offer any explanation as to how he sustained injury on his right forearm as noticed by PW23. He does not also offer any explanation as to how his tissue particles happened to be found in the DNA typing done on the tissue particles found in the nail clippings collected from the deceased. In the absence of any explanation from the accused for the said circumstances, according to us, it can certainly be inferred that the offence of robbery and murder took place simultaneously as part of the same transaction and if that be so, inasmuch as the accused has not disproved that the gold ornaments recovered from him are not stolen by him, the guilt of the accused for the charge of murder can be presumed under Section 114 of the Indian Evidence Act as well. In the said circumstances, according to us, the circumstances narrated in the preceding paragraph Crl.A.No.608 of 2022 23 would establish the guilt of the accused beyond reasonable doubt, as the said circumstances are not explainable on any hypothesis, except the hypothesis of the guilt of the accused. 20. No argument was advanced by the learned counsel for the appellant as regards the punishment inflicted on the accused. In the circumstances, we do not find any merit in the appeal and the same is accordingly dismissed. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** **Sd/-** **JOHNSON JOHN, JUDGE.** Mn Crl.A.No.608 of 2022 24 ## **`APPENDIX OF CRL.A 608/2022`** ``` PETITIONER ANNEXURES Annexure1 ``` ``` FREE COPY OF THE JUDGMENT IN SESSIONS CASE NO. 172/2013 DATED 24.04.2019 IN THE COURT OF SESSION, PALAKKAD, DIVISION. ```