RAVEENDRAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 24TH DAY OF JULY 2012/2ND SRAVANA 1934 CRL.A.No. 674 of 2009 ( ) ------------------------SC.94/2008 of ADDL.DISTRICT COURT (ADHOC-I), KOTTAYAM CP.7/2008 of J.M.F.C.,PALA APPELLANT(S)/PETITIONER/APPELLANT: --------------------------------- RAVEENDRAN, C.NO.3461 CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADVS.SRI.GEORGE MATHEWS SMT.CELINE JOSEPH RESPONDENT(S)/RESPONDENT: ------------------------- STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ. --------------------------------------------CRL.A.NO.674 OF 2009 --------------------------------------------Dated 24[th] July, 2012 ## JUDGMENT ## Sasidharan Nambiar,J. Appellant was convicted and sentenced to imprisonment for life and a fine of Rs.1,00,000/- and in default rigorous imprisonment for one year for the offence under Section 302 and rigorous imprisonment for ten years and fine of Rs.10,000/- and in default rigorous imprisonment for three months for the offence under Section 394 read with Section 397 of Indian Penal Code by Additional Sessions Judge (Adhoc-I), Kottayam in S.C.94/2008. The prosecution case is that deceased Sulochana, her husband Thankappan, PW20 Anjana and eight year old Anjali, another daughter were residing Crl.A.674/09 2 along with grand parents in their house at Kothamangalam. On the morning of 24/12/2001 Sulochana left the house disclosing that she is going to her family house and from there for a pilgrimage. On 28/12/2001 the sister-in-law of Kumaran, the father-in-law of Sulochana disclosed to Kumaran that a person contacted her over phone and informed that Sulochana was with that person on the way to Palakkad. Kumaran therefore made enquiry and found out that Sulochana had not reached her family house on 24/12/2001. As her whereabouts could not be received, Kumaran lodged Ext.P13 FI statement on 4/1/2002, based on which Ext.P13(a) FIR was prepared and crime No.4/2002 of Kothamangalam police station was registered under the caption man missing. The body of Sulochana with injuries sustained was found in a by-lane near Crl.A.674/09 3 Pala on the morning of 26/12/2001. PW1, Ramankutty, son of member of the Council of the Ward, furnished Ext.P16 first information statement based on which crime No.605/2001 of Pala police station was registered, after preparing Ext.P16(a) FIR on 26/12/2001 at 10 a.m. Body of Sulochana could not be identified. After PW10 Dr.Girish conducted autopsy and prepared Ext.P8 postmortem certificate, the body was cremated. Appellant was a rubber tapping labourer who used to tap the rubber trees of Kumaran as well as others. PW3, the wife of the appellant furnished Ext.P1 FI statement on 13/1/2002 reporting that her husband was missing from the morning of 12/1/2002. It was disclosed in Ext.P1 that he had gone for tapping in the early morning of 12/1/2002 at about 3.30 a.m as usual and did Crl.A.674/09 4 not return thereafter. Though PW19 Sub Inspector of Police, Kothamangalam investigated both the missing cases, the missing persons including the appellant could not be found out. Meanwhile, appellant was arrested by PW22, the Circle Inspector, Ramapuram Police Station on 16/8/2007 and crime No.142/2007 of that police station was registered under Section 41(1)(d) of Code of Criminal Procedure, as he was found under suspicious circumstances. On questioning the appellant it was disclosed to PW22 that he was involved in the murder of Sulochana. PW23, Circle Inspector, Pala Police station took over the investigation. He recorded the arrest of the appellant on 22/8/2007. Based on the information received, PW23 recovered MO.4 gold ingot under Ext.P4 mahazar from M/s.Varkey & Sons Jwellery, Kothamangalam. It was alleged Crl.A.674/09 5 that MO.4 is the gold ingot prepared by the jweller on melting the gold ornaments of the deceased and sold by the accused and it was recovered on the information furnished by the appellant. PW23 recovered MO.1 Jimikky under Ext.P5 recovery mahazar from PW5, on the allegation that it was pledged by PW3 on 13/12/2002, as shown in Ext.P6(a) entry of Ext.P6 register maintained by PW5 and it was the ornament which was worn by Sulochana at the time when she was missing. After completing the investigation PW23 laid the charge before Judicial First Class Magistrate, Pala who committed the case before Sessions Court, Kottayam. 2. When the charge for the offences under Section 302 and 394 read with Section 397 of Indian Penal Code was framed and read Crl.A.674/09 6 over, appellant pleaded not guilty. The prosecution thereafter examined 23 witnesses and marked 20 exhibits and identified 22 material objects. After closing the prosecution evidence, when the appellant was questioned under Section 313 of Code of Criminal Procedure, he denied the incriminating evidence put to him and pleaded that he was innocent and he is no way connected with the murder of Sulochana. Though appellant was called upon to enter on his defence and adduce evidence, he did not adduce any evidence. 3. Learned Sessions Judge based on the evidence found the appellant guilty. He was convicted and sentenced for both the offences, as stated earlier. Learned Sessions Judge relied on circumstantial evidence to hold that appellant committed the murder. The accused is Crl.A.674/09 7 challenging the conviction and sentence in the appeal. 4. Learned Senior counsel appearing for the appellant and learned Public Prosecutor were heard. 5. Argument of the learned Senior counsel is that when the prosecution is relying on circumstantial evidence, the circumstances should be conclusively proved and the circumstances so proved shall unerringly point out the guilt of the accused and must be incompatible with the innocence of the accused. It was pointed out that circumstances found by the learned Sessions Judge, do not point out the guilt of the appellant. It was also argued that the circumstances relied on by the learned Sessions Judge are the last seen theory ,based on the evidence of PW15 shop keeper who claims Crl.A.674/09 8 that he had seen the appellant along with a lady six to seven years back before the date of his examination and that evidence is insufficient to prove that appellant was seen alive with the deceased for the last time. Learned Senior counsel pointed out that the other circumstances relied on by the learned Sessions Judge is the recovery of MO.1 from PW5 and Ext.P6(a) entry. It was argued that when Sulochana died on the night of 25/12/2001, even if the evidence of PW5 that MO.1 was pledged by PW3 is accepted, that pledging was on 13/12/2002, almost one year after the murder and even according to PW3, who allegedly pledged MO.1, appellant was missing from the house from 12/1/2002 onwards. It is therefore, argued that even if MO.1 is the gold ornament owned by the deceased, it will not connect the Crl.A.674/09 9 appellant with the murder. It was argued that in Ext.P3 FI statement there is no allegation that deceased Sulochana was wearing gold ornaments and therefore, based on MO.1 appellant cannot be found guilty. Learned Senior counsel also argued that MO.4 gold ingot is also insufficient to connect the appellant as there is no evidence to prove that the gold ingot was prepared by melting the stolen gold ornaments of the deceased, much less sold by the appellant. It is therefore argued that when there is no other material to connect the appellant with the murder of Sulochana, the conviction is not sustainable. Learned Senior counsel also argued that though learned Sessions Judge accepted the alleged abscondance of the appellant as an additional link in the chain of circumstances, there is no Crl.A.674/09 10 evidence to prove that appellant absconded immediately after the missing of Sulochana on 24/12/2001. It was pointed out that though the evidence of PW2, the sister-in-law of the deceased shows that appellant had not attended the work of rubber tapping on 24[th] and 25[th] of December, 2001, that does not mean that appellant was absconding on those days and even according to PW2, appellant was working from 26/12/2001 onwards. It was argued that the version of PW3 in Ext.P1 shows that appellant was there till 12/1/2002 and the missing of the appellant from 12/1/2002 cannot be taken as absconding due to the missing of Sulochana and when the prosecution case is that subsequently, appellant was residing with PW7 the alleged second wife of the appellant, the fact that appellant was missing from the house of PW3 is Crl.A.674/09 11 not a ground to hold that appellant was missing due to murder of Sulochana and it cannot be a link in the chain of circumstances and therefore, the conviction is not sustainable. 6. Learned Public Prosecutor submitted that there are proved circumstances which were rightly relied on by the learned Sessions Judge to hold that appellant committed the murder. It was argued that evidence of PW15 establish that appellant was found with the deceased near K.S.R.T.C bus stand, Kottayam and nobody had seen the deceased alive thereafter and as the deceased was found alive for the last time along with the appellant, he has a duty to explain what happened to the deceased thereafter and when the appellant had not offered any explanation, it is definitely a strong link in the chain of circumstantial Crl.A.674/09 12 evidence pointing out the guilt of the appellant. It was argued that appellant was the rubber tapper of Kumaran, the father-inlaw of deceased Sulochana and Sulochana had illicit connection with the appellant and they left the place on the morning of 24/12/2001 and appellant reappeared only on 26/12/2001, subsequent to the murder of Sulochana. It was argued that when the father-in-law of Sulochana lodged Ext.P13 FI statement, appellant fearing that his complicity would be found out, absconded from the house from 12/1/2002 and the evidence of PW19 establish that appellant could not be traced, in spite of the search in the crime registered under Ext. P16(a) FIR and the fact that appellant was absconding is an additional link in the chain of circumstantial evidence. It was also argued that MO.1 Jimikky Crl.A.674/09 13 was proved to be the ornament worn by the deceased, by the evidence of PW2 sister-in-law and PW20 the daughter and the evidence of PW5 with Ext.P6(a) entry in Ext.P6 register establish that MO.1 was pledged by PW3 and PW3 could have obtained possession of MO.1 only from the appellant and therefore, it squarely connects the appellant with MO.1 and thereby it is clear that it was the appellant who committed the murder. It was therefore, argued that there is no reason to interfere with the conviction. Learned Public Prosecutor also submitted that evidence of PW2 about the disclosure made by the appellant that deceased will not return for some time and the children are to be looked after is also an additional link in the chain of circumstances. 7. When the case is based only on Crl.A.674/09 14 circumstantial evidence, the onus on the prosecution to prove that the chain of the circumstantial evidence is complete and that the circumstances are totally incompatible with the innocence of the appellant. Honourable Supreme Court in **Hanumant Govind Nargundkar v. State of M.P.(AIR 1952 SC 343)** held that in cases where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency and should be such as to exclude every other hypothesis, but the one proposed to be proved. There must be a chain of evidence so Crl.A.674/09 15 far complete, as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. It must be such as to show that within all human probability the act must have been done by the accused. In ## **Padala Veera Reddy v. State of Andhra Pradesh** **[(1989) Supp (2) SCC 706]** , the following tests were laid by the Honourable Supreme Court. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the Crl.A.674/09 16 crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 8. The position has been reiterated in several subsequent decisions. The Panchasheela principles of circumstantial evidence as laid down in **Sharad v. State of Maharashtra (1984** ## **(4) SCC 116)** are: “1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. Crl.A.674/09 17 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3) the circumstances should be of a conclusive nature and tedency. 4) they should exclude every possible hypothesis except the one to be proved, and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” The circumstantial evidence accepted by the learned Sessions Judge is to be appreciated in Crl.A.674/09 18 the light of the settled principles. 9. The circumstantial evidence relied on by the prosecution are (1) last seen theory relying on the evidence of PW15 (2) recovery of MO.1 Jimikky from PW5 under Ext.P5 recovery mahazar by PW23, the investigating officer, allegedly pledged by PW3 the wife of the appellant (3) the conduct of the appellant in absconding from the scene, relying on the evidence of PW2, the sister-in-law of the deceased and PW3, the wife of the appellant, Ext.P1(a) FIR and the evidence of PW19 who investigated that case. **==> picture [362 x 13] intentionally omitted <==** deceased Sulochana was found in the by-lane near Pala on the morning of 26/12/2001 as deposed by PW1, who lodged Ext.P16 FI statement and the identification of the dead body later Crl.A.674/09 19 with the aid of the photographs taken by PW17 photographer, by PW2 sister-in-law and PW20 daughter of the deceased and PW6 a neighbour, were not disputed. The evidence of PW10 the doctor, who conducted autopsy and prepared Ext.P8, conclusively establish that Sulochana died due to the injuries sustained and her death was homicide. There is no dispute on the cause of death. 11. Body of Sulochana was found near Pala. Though crime No.605/2001 was registered under Ext.P16(a) FIR even the identity of dead body could not be established at that time. The identity could be fixed only after the arrest of the appellant by PW22 Circle Inspector of Police, Ramapuram, who arrested him on 16/8/2007 under suspicious circumstances at Amanakara. Almost seven years had elapsed from Crl.A.674/09 20 the date of murder till the identity of the body, involved in Crime No.605/2001, could be ascertained. There was no eye witness to the incident. The case depends only on circumstantial evidence. 12. The last seen theory was accepted by the learned Sessions Judge based on the evidence of PW15. PW15 is a petty shop keeper near K.S.R.T.C bus stand, Kottayam. Even if the entire evidence of PW15 is accepted as trustworthy, it would only establish that PW15 had seen the appellant with a lady, six or seven years before the date of his examination. According to PW15, appellant had come to his shop along with a lady and purchased a magazine and while returning, the lady had forgotten to take her bag, which was kept in the shop room. PW15 claimed that while he was verifying whose Crl.A.674/09 21 bag it was, appellant along with the lady came back and disclosed that the bag belongs to them and PW15 permitted them to take the bag. When PW15 was shown Exts.P2 and P2(a) and Ext.P3 photographs of deceased Sulochana, he replied that the lady appears to be similar to the lady in the photographs. When PW15 was cross examined and even the factum of conducting a shop as claimed by him was challenged, PW15 could not give the particulars of the ward number and building number of the shop. PW15 deposed that about 500 people used to come to his shop daily and he could recollect the appellant and the lady because they had forgotten the bag in the shop, which was taken later. Strangely, the prosecution did not attempt to identify MO.12 bag, which was recovered from the scene of occurrence where Crl.A.674/09 22 the dead body of Sulochana was found by that witness. PW15 in cross examination deposed that he did not take note of the particulars of the lady so as to identify her later. He had only deposed that he was observing the bag and not the lady. If that be so, the Investigating officer could have got identified MO.12 bag by PW15, if MO.12 bag of the deceased was found by PW15 on that day as claimed by him. From the evidence of PW15, at best it could be said that appellant had been there in his shop along with a lady. That lady need not necessarily be Sulochana. It could be anybody similar to Sulochana. When the fact that the bag, which was allegedly forgotten by the appellant and the lady in the shop of PW15 and later taken by them, was not identified by PW15, based on his evidence it is not safe to believe that PW15 Crl.A.674/09 23 had seen the deceased with the appellant on that day. Even if the evidence of PW15 is accepted, that incident could have been six or seven years prior to the date of his examination on 24/10/2008. If it was Sulochana it could never six years prior to the date of his examination, as Sulochana was murdered in December, 2001. Even if it was taken that it was seven years earlier it need not necessarily be on 24/12/2001 or 25/12/2001. Therefore, even if the evidence of PW15 is believed it will not establish that appellant was seen with the deceased, either on 24/12/2001 or 25/12/2001. If that be so, based on the evidence of PW15 it cannot be found that appellant was last seen alive, with the deceased as alleged by the prosecution or found by the learned Sessions Judge. Crl.A.674/09 24 13. Mo.1 Jimikky was recovered by PW23 from the shop of PW5 under Ext.P5 mahazar. Ext.P6 ledger containing Ext.P6(a) entry was relied on to connect PW3 with MO.1. Even if the evidence of PW5 that it was MO.1 which was pledged under Ext.P6(a) entry is accepted, it would only prove that MO.1 was pledged by PW3 on 13/12/2002. It is pertinent to note that Sulochana was missing from her husband's house on 24/12/2001 and Ext.P13 FI statement was lodged by her father-in-law on 4/1/2002. MO.1 was pledged by PW3 only on 13/12/2002. The evidence of PW3 with Ext.P1 FI statement establish that appellant was missing from the house on the morning of 12/1/2002. Evidence of PW19 the Investigating Officer, who investigated the crime registered under Ext.P16 (a) FIR is to the effect that in spite of the Crl.A.674/09 25 search appellant could not be found out. The evidence of PW3 establish that appellant was not seen by her after 12/1/2002. If that be so, appellant was not with PW3 from 12/1/2002 till 13/12/2002. MO.1 was seen pledged by PW3 for Rs.400/-, as proved by the evidence of PW5 nearly one year after 12/1/2002. In such circumstances, when the appellant was not there along with PW3 after 12/1/2002 for about eleven months, even if MO.1 is the ear ornament of deceased Sulochana, based on the said pledging it cannot be found that it was given to PW3 by the appellant as found by the learned Sessions Judge. PW3 denied the prosecution case that she pledged MO.1 or that MO.1 was given to her by the appellant. More over, according to the prosecution, MO.4 gold ingot was recovered under Ext.P4 recovery mahazar on the Crl.A.674/09 26 information furnished by the appellant and MO.4 was obtained by the jweller by melting the gold ornaments of the deceased which was sold to the jweller by the appellant. If that be so, appellant had taken the gold ornaments allegedly robbed from the body of the deceased while he left the house on 12/1/2002. If so, it cannot be believed that he would leave MO.1 alone at the house or will give MO.1 to PW3. Though MO.4 was recovered, allegedly based on the confession of the appellant, there is no evidence to prove that MO.4 gold ingot was prepared by melting the gold ornaments of the deceased. As stated earlier in Ext.P13 FI statement, there was no case that deceased was wearing gold ornaments, when she left the house. Though PW20 daughter deposed that her mother Sulochana had taken away the gold Crl.A.674/09 27 ornaments, there is no evidence to prove that it was those gold ornaments which was melted for preparing MO.4 gold ingot or that it was those gold ornaments which was allegedly sold by the appellant to the jweller. In such circumstances, neither the recovery of MO.1 nor MO.4 connects the appellant with the murder of Sulochana. 13. What remains is the conduct of the appellant in absconding. Though it was found by the learned Sessions Judge that appellant was absconding along with the deceased and he came back later and again absconded, there is no evidence to prove that appellant was not there in his house or in the locality either on 24/12/2001 or 25/12/2001. Even according to the prosecution, as proved by the evidence of PW2, appellant had attended Crl.A.674/09 28 tapping work on 26/12/2001. At best, based on the evidence of PW2 it could be held that appellant did not attend the work of rubber tapping on 24/12/2001 and 25/12/2001. That does not mean that appellant was absconding on those days. Even when PW3 was examined, no question was put to PW3 to her to the effect that appellant was not there in the house either on 24/12/2001 or 25/12/2001. When there is no evidence to prove that appellant was not there in the house or in the locality on 24/12/2001 and 25/12/2001, it cannot be found that appellant was absconding when the deceased was found missing from the morning of 24/12/2001. At the same time the evidence of PW2 establishes that at least on the morning of 26/12/2001 appellant had been there for rubber tapping work. The evidence of PW3 is Crl.A.674/09 29 that appellant used to go for tapping at about 3.30 a.m in every morning. The evidence of PW3 does not show that he did not go for tapping in the usual time on 26/12/2001. It is pertinent to note that body of deceased Sulochana was found on the morning of 26/12/2001 and the evidence of PW1 who lodged Ext.P16 FI statement is to the effect that the people used to pass along that by-lane upto 10 p.m and therefore, death of Sulochana would have been after 10 p.m and before 10 a.m on the morning of 26/12/2001. In such circumstances, the fact that subsequently, appellant absconded from the house of PW3 on 12/1/2002 cannot be taken as a link in the chain of circumstance, to prove the guilt of the appellant especially when prosecution case is that he was later found residing with PW7. Even though it was alleged Crl.A.674/09 30 that appellant was having illicit relationship with deceased Sulochana, none of the witness had spoken about such illicit relationship. No other circumstance was pointed out to prove that it was the appellant who committed the murder. When the circumstances relied on by the prosecution are not fully established and the circumstances are insufficient to establish that it was the appellant who committed the murder and those circumstances are not incompatible with the innocence of the appellant or rule out every other hypothesis except the one that appellant committed the murder, he cannot be found guilty of the murder of Sulochana. Hence, we cannot agree with the findings of the learned Sessions Judge that appellant committed the murder. Appeal is allowed. Conviction of the Crl.A.674/09 31 appellant for the offences under Sections 302 and 394 read with Section 397 of Indian Penal Code by Additional Sessions Judge, Kottayam in S.C.94/2008 is set aside. Appellant is found not guilty of the offences. He is acquitted. If the appellant is not wanted in any other case, he shall be released from prison forthwith. M.SASIDHARAN NAMBIAR, (Judge). P.BHAVADASAN, (Judge). uj.