Satheesh Chandran @ Anil @ Satheesh S/O Sasidharan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 09TH DAY OF JANUARY 2019 / 19TH POUSHA, 1940** ## **CRL.A.No. 268 of 2013** **AGAINST THE JUDGMENT IN SC 569/2011 of SESSIONS COURT,ERNAKULAM DATED 28-09-2012** ## **APPELLANT/ACCUSED:** **SATHEESH CHANDRAN @ ANIL @ SATHEESH, S/O SASIDHARAN NAIR, C:NO.7483, CENTRAL PRISON, THIRUVANANTHAPURAM.** **BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY THE CI OF POLICE, PUTHENCRUZ THROUGH THE PUBLIC PROSECUTOR, THE HIGH COURT OF KERALA AT ERNAKULAM.** **BY ADV.SMT. S.AMBIKADEVI, SPL.PUBLIC PROSECUTOR FOR ATTROCITIES AGAINST WOMEN AND CHILDREN.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.11.2018, THE COURT ON 09.01.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.268/13 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been filed by the appellant challenging the judgment of conviction and order of sentence passed by the Second Additional Sessions Judge, Ernakulam in S.C.No. 569 of 2011, by which he was found guilty for offences under Sections 302 and 397 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and a fine of `50,000/- with a default stipulation of two years rigorous imprisonment for the offence under Section 302 of IPC and further to undergo rigorous imprisonment for seven years and a fine of `10,000/- in default of which to undergo rigorous imprisonment for six months under Section 397 of IPC. 2. Prosecution case is as under: Mariamma @ Thankamma, the deceased herein, a widow, aged about 65 years, at the time of her death, had been residing alone in Mundiattu Veedu at Peruvammuzhi. She was working in Bismillah Hotel at Muvattupuzha and the appellant was also working there. Due to that acquaintance, the appellant used to Crl.Appeal No.268/13 -:3:- stay in the house of the deceased during night. On 15/06/2011 also, the appellant came to the said house during night. At around 04.30 a.m., on 16/06/2011, the appellant with the intention of causing death of Thankamma and to rob gold ornaments worn by her, struck her with a chopper while she was sleeping in her bedroom in the south-western side of the house and caused her death. Thereafter, the appellant took away the gold chain weighing one sovereign, a bangle weighing half a sovereign and a ring weighing ¼ sovereign from her body. 3. Prosecution examined PWs 1 to 28 as witnesses, produced Exts.P1 to P30 documents and identified MOs 1 to 19 as material objects. During 313 examination, the appellant denied all the incriminating evidence levelled against him. He stated that during 2011, while working in Bismillah Hotel, he sustained fracture on his left hand and had to enter on leave with the permission of the owner of the hotel. He went to Perumbavoor for further treatment and during that period, he stayed in Surabhi Lodge as his sister's house was small enough to accommodate him. Even earlier, he used to stay in Surabhi Lodge once in a while. He met the expenses of the treatment out of the salary he Crl.Appeal No.268/13 -:4:- earned. He pleaded innocence. He also stated that only because he was not able to arrange sureties, he had to continue in jail. From the part of defence, no evidence was adduced. However, Exts.D1 to D3 contradictions were marked from the case diary. 4. The following contentions were raised by learned senior counsel Sri.Gracious Kuriakose appearing for and on behalf of the appellant to challenge the prosecution case and to show the perverse view of the trial Court: (i) There is absolutely no evidence to show that the appellant was present in the house of the deceased during relevant time. (ii) The exact time of death is not brought in evidence by the prosecution. (iii) Motive alleged by the prosecution is also flimsy. Obviously, the appellant had a fracture on his hand. He needed money for the treatment and hence he committed the offence is nothing but a wild imagination of the prosecuting agency. (iv) Court below erred in considering the normal spending done by the appellant for his day-to-day activity as one of spendthrift and considered it as another circumstance against Crl.Appeal No.268/13 -:5:- him to attribute guilt. Hiring an auto, consuming alcohol etc., are ordinary things for which undue importance should not be attached. (v) On 15[th] evening, the deceased was expecting a guest and was waiting for the said guests' arrival. Evidence indicates that it is a relative of the deceased. (vi) Also, a blood-stained lungi was recovered from the bathroom of the house. A cigarette pack and paper waste of packed food etc., were found from there. Regarding these vital aspects, there is no investigation. Police falsely implicated the innocent appellant. (vii) The appellant was incapacitated by fracture on his left hand. He is admittedly a left hander. It is impossible to inflict such serious injuries on the victim using a weapon like MO1 with such an injured hand. This also improbabilizes the prosecution case. (viii) The house is found to be locked from inside. That probabilizes the possibility of the so called guest to commit the offence. It is impossible for the appellant/accused to climb on the terrace as alleged by the prosecution. (ix) Appellant/Accused's proximity to the deceased is no Crl.Appeal No.268/13 -:6:- ground to suspect him to be the offender. Court below went to the extent of considering even that as a circumstance against the appellant/accused. (x) There is no evidence to prove that the deceased was wearing any ornaments on the date of incident. (xi) Alleged recovery is not admissible in evidence as there is no recovery of incriminating material. (xii) Evidence has been fabricated by the prosecution. Ext.P6 is produced by the prosecution to falsely implicate the appellant. 5. On the other hand, the learned Special Government Pleader for Atrocities against Women and Children, Smt.S.Ambika Devi argued that prosecution proved the case against the appellant beyond reasonable doubt and the trial Court was perfectly justified in convicting the appellant. The murder was committed in a gruesome manner. All circumstances are proved by the prosecution and they unerringly point to the guilt of the appellant alone. In her lengthy argument, she detailed each circumstance and made all attempts to refute the rival contentions raised by the learned Senior counsel for the Crl.Appeal No.268/13 -:7:- appellant. 6. There is no eye-witness to the incident. Prosecution relies on circumstantial evidence to prove the case. The question to be determined is whether the trial Court was justified in arriving at the conclusion that the appellant had robbed the gold ornaments belonging to Thankamma and thereafter murdered her as alleged by the prosecution. 7. Prosecution adduced the following evidence to prove their case and a brief description of which is as under: 8. PW1 Reji @ Rajeevan is the youngest son of the deceased Mariamma @ Thankamma. He is the de facto complainant. He gave Ext.P1 FIS to PW27 based on which Ext.P20 FIR was registered. PW2 Alias is a neighbour of the deceased and an attestor to Ext.P2 inquest report. PW3 Shaji is another neighbour of the deceased. PW4 Biju is also a neighbour and relative of the deceased and a tailor by profession. PW5 is the daughter of the deceased. PW6 Ambika is a neighbour of the deceased. PW7 is the elder son of the deceased. PW8 Mukundan is a stationary and vegetable shop owner of the locality. PW9 Badarudeen is a cook at Uduppi Aryas hotel at Muvattupuzha and Crl.Appeal No.268/13 -:8:- an earlier co-worker of the appellant in the same hotel. PW10 is the Manager of Hotel Bismillah in which the deceased and the appellant were working together during the relevant period. PW11 is Dr.Jobin Vadath, an Ayurveda Physician conducting clinic at Peruvammuzhi junction and he treated the appellant at 08.00 p.m. on 15/06/2011. PW12 Vijayanadhan was the then Manager of Surabhi Lodge, Perumbavoor in which the appellant lodged after the incident. PW13 is a bus conductor who was working at Muvattupuzha depot of KSRTC during the relevant period. He deposed that the appellant got into his bus which was proceeding to Ernakulam from Muvattupuzha, from Peruvammuzhi junction at 05.15 a.m. and travelled in the bus till Ernakulam Bus stand. PW14 Manoj Kumar is doing business in the name and style of New Prakash Electroplating Company opposite to Mathrubhumi Press at Kaloor. He deposed that the appellant sold the ornaments to him on 16/06/2011 at about 09.00 a.m. and bought MO15 imitation chain from him. He is an attestor to Ext.P8 mahazar prepared for the seizure of Ext.P6 undertaking of the appellant and also an attestor to Ext.P7 mahazar prepared for the seizure of two gold ingots. PW15 is a goldsmith at Kaloor. PW16 is Crl.Appeal No.268/13 -:9:- an autorickshaw driver who brought the appellant from Ernakulam to Perumbavoor on 16/06/2011. PW17 Anwar is a cool bar shop owner below Surabhi Lodge at Perumbavoor. Appellant entrusted `15,000/- to him for safe custody soon after the incident and bought back `5,000/- and `2,000/- each on two occasions. 9. PW18 Dr.Sreedevi is the then Associate Professor and Deputy Police Surgeon, Medical College Hospital, Alappuzha. She issued Ext.P12 post-mortem certificate. She noted the following ante-mortem injuries on the deceased:- _“1. Incised wound 18x5.6 cm bone deep horizontal on the forehead and adjacent part of head, 5 cm above the root of nose, its right extent 5 cm outer to midline. Frontal bone underneath showed a cut fracture 18x4.5 cm exposing the cranial cavity. Dura over the left frontal lobe of brain torn 8x5 cm and brain matter was seen exposed._ _2. Incised wound 8x2 cm, bone deep on the left side of head 6 cm above the top of ear (its front end was 0.5 cm behind the left end of injury number (1) underlying showed cut fracture 6x0.2 cm involving the whole thickness of skull underneath._ _3. Incised wound 6x0.8 cm bone deep oblique on the right side of forehead its inner extent 1.5 cm above root of nose in the midline._ Crl.Appeal No.268/13 ## -:10:- _4. Incise wound 5x1 cm bone deep horizontal on the right side of forehead its inner extent at midline and 4.5 cm above the root of nose._ _5. Incised wound 5x2x0.6 cm on the inner aspect of left side of upper lip extending to the gum. Alveolar margin of teeth, numbers 21 to 24 showed cut fracture 3.4x0.5 cm involving the whole thickness (left extent of wound was 0.2 cm outer to left angle of mouth.) The canine tooth was found loose in the mouth cavity._ _6. Incised wound 0.5x0.5x0.2 cm on the left angle of mouth, 02. cm below the outer end of injury No.5._ _7. Incised wound 7x1 cm bone deep on the left side of head just above the top of ear lobe._ _8. Incised wound 2x1x0.5 cm on the upper end of left ear lobe._ _Brain showed bilateral subdural and subarachnoid haemorrhages sulci were narrowed and gyri flattened.”_ 10. PW19 Dr. Prasanna treated the appellant at Parathuvayal Hospital. According to her, the injury on the appellant was not a serious one. He needed rest only. 11. PW20 is the then Assistant Surgeon at Taluk Hospital, Tripunithura. He proved Ext.P13 certificate issued by him for collecting the nail clippings of appellant's both hands and legs. It bears his sign and seal. 12. PW21 Susan Antony is the then Scientific Assistant, DCRB, Ernakulam Rural. She proved Ext.P14 report prepared by Crl.Appeal No.268/13 -:11:- her while collecting items from the scene of occurrence. 13. PW22 is an attestor to Ext.P15 seizure mahazar of Ext.P14 report. PW23 is the then Secretary of Aikkaranadu Panchayath. She proved Ext.P16 ownership certificate which shows that the house in which the incident took place belonged to one Reji and Jibi. PW24 is the then Village Officer, Aikkaranadu North Village. He proved Ext.P17 site plan. PW25 CPO is an attestor to Exts.P18 and P19 mahazars. PW26 Shibu K.Issac is a bakery shop owner at Peruvammuzhi junction. According to him, on 15/06/2011, at about 08.00 p.m., the appellant came to his shop and tried to make a call from coin box telephone. 14. PW27 is the then S.I. of Police, Puthencruz Police Station. Based on Ext.P1 FIS given by PW1, he registered Ext.P20 FIR. He also deposed that PW1 had given him statement that his mother's gold chain of ½ sovereigns was missing. 15. PW28 is the then C.I. of Police, Puthencruz. He prepared Ext.P2 inquest report and seized MOs 1 to 14 series including blood-stained clothes and a chopper from the bed on which the body was found. A knife found under the bedsheet was Crl.Appeal No.268/13 -:12:- also seized. He questioned the witnesses, arrested the appellant on 22/06/2011 from Surabhi Lodge, Perumbavoor and seized MOs 15, 17, 18 and 19 from the appellant. He also seized MO16 gold ingot by reaching to PW14 based on the information received from the appellant. He completed the investigation and submitted charge-sheet. 16. Case of the prosecution is that the deceased was murdered by the appellant at or around 04.30 a.m on 16/06/2011. PW18 conducted the autopsy of the deceased and issued Ext.P12 certificate. Post-mortem commenced at 02.00 p.m. on 17/06/2011 and concluded at 03.10 p.m. on the same day. She opined that the death would have taken place 24 hours before the post-mortem examination. It is her further version that owing to excessive blood loss from the body, death might have happened within 36 hours prior to the post-mortem examination. The said opinion of the Doctor clearly stretches the time of death of Thankamma within the alleged time of offence by the prosecution and we do not find any error in the said conclusion of the Court below. The blood group of deceased was found to be 'O' Rh positive. According her, the death was due to head injury. Crl.Appeal No.268/13 -:13:- 17. Court below found that the appellant herein committed the robbery of gold ornaments of the deceased and hence he is responsible for the death of the deceased as principle of presumptive evidence would come into play. The following circumstances were raised by the prosecution to prove the involvement of the appellant:- - (1) Appellant had proximity to the deceased. - (2) Presence of the appellant in the house of the deceased - on the fateful night. - (3) Recovery under Section 27 of the Indian Evidence Act. - (4) Spendthrift nature of the appellant on the following days - of offence. - (5) Blood-stains on the nails and chappels of the appellant. (6) Motive. 18. Admittedly, there is no eye-witness to the incident. Prosecution relied on certain circumstances to prove the case against the appellant. The following witnesses were examined by the prosecution to prove crucial circumstances in the case at hand. Hence, it would be appropriate to look into their deposition in detail. Crl.Appeal No.268/13 -:14:- 19. PW1 is the son of the deceased. He is the person who had seen the dead body of the deceased first at 08.30 p.m. on 16/06/2011. Ext.P1 FIS is given by him. 20. PW5 is the daughter of the deceased. She is married to Reji and they were staying separately. According to her, the deceased was staying alone in the house in which incident took place, for the last 4 to 5 years. All the children and neighbours were having good relationship with her mother. Her mother was working at Bismillah Hotel, Muvattupuzha at the relevant time. Earlier, her mother worked in a hotel run by her uncle at Peruvammuzhi. She also worked for sometime in KSRTC canteen at Muvattupuzha. It is her version that she frequently visits her mother and also contacts her over phone. 18[th] of June was the death anniversary of her father. On 16/06/2011, at 06.00 p.m., she tried to contact her mother over phone, but she did not respond. Again she tried, but could not get her. It is her further version that her elder brother Sajeevan also called her and told that their mother was not attending the phone calls. After contacting a few more times, PW5 called her younger brother Reji and asked him to go to their mother's place. Later she came to Crl.Appeal No.268/13 -:15:- know that her mother was brutally murdered. She specifically deposed in detail the description of ornaments usually worn by her mother. It is her version that her mother was wearing ear stud, ring, bangle and chain. The ear stud was of flower inscribed round one locally called 'shinkiri'. According to her, it is very difficult to remove the said ear stud. The chain was of disco design with curling and was of almost one sovereign with a golden cross on it. The bangle was a rounded one of half a sovereign. The ring was of a quarter sovereign of ordinary make. She deposed that her mother was wearing all those ornaments the day she last saw her. Except ear stud, all other ornaments were missing from her mother's body. 21. PW6 Ambika is a neighbour of the deceased. PW3 is also her neighbour. It is her version that the way leading to Thankamma's house is through the front of her house and it is possible to see Thankamma's house from her house. She deposed that on the evening of 15/06/2011, she saw the deceased walking along the road that leads to her house. She did not talk to Thankamma. But she noticed that her dress was a nighty. Thereafter, she did not see Thankamma alive. Crl.Appeal No.268/13 -:16:- 22. PW7 is the elder son of the deceased who was running super market at Puthencruz. He identified MOs 1 to 14 seized from the place of occurrence at the time of inquest. He also specifically described the ornaments usually worn by his mother. According to him, only ear stud was available. All other ornaments were missing. He identified the appellant in Court. 23. PW8 Mukundan is a stationary and vegetable shop owner of the locality. He deposed that he contacted the deceased over phone at or around 9.00-09.15 p.m., on 15/06/2011 to ask the money due to him from her for purchase of items from his shop on that day and also of earlier purchase. It is his version that she attended the phone and replied that she would pay money the next morning as she was waiting for a guest. 24. PW9 Badarudeen is a cook. Appellant herein was his co-worker in Uduppi-Aryas Hotel at Payipra, Muvattupuzha. Appellant was his assistant and he was a native of Thiruvananthapuram. He deposed that the appellant was expelled from the said job and he joined at Bismillah Hotel. He worked there for four months and it was Sabarimala pilgrimage season. After 3 months, he met the appellant at Bismillah Hotel, Crl.Appeal No.268/13 -:17:- Muvattupuzha. The appellant requested PW9 to enquire about the possibility of getting a job again at his previous work place i.e., Uduppi-Aryas Hotel as his present occupation is temporary and that too on leave vacancy. On the above request, PW9 made an enquiry about the same to his employer and the employer said that he would reply in two days. According to PW9, while working as his Assistant at Uduppi Aryas Hotel, the appellant had no mobile phone. He further deposed that to his knowledge, the appellant had no phone thereafter also. However the appellant contacted PW9 on the next day from a mobile number to enquire whether there was any vacancy in the hotel. He also told that the information regarding vacancy could be informed to him by calling to the said mobile phone number from which he had called PW9. The appellant told PW9 that the said number was one of his co-workers at Bismillah hotel. The employer finally agreed to take the appellant back and he told PW9 to inform the appellant the same and tell the appellant to join from Wednesday onwards. PW9 informed the appellant that the employer agreed and he could join from Wednesday onwards. Then, according to PW9, the appellant told him that he had an accident at his hand and he Crl.Appeal No.268/13 -:18:- would join two days later. PW9 contacted the appellant in the number from which the appellant/accused had called him. He categorically deposed that the said number ends with 76. According to PW9, the said call was attended by one Thankamma chechi. She replied that she was in her home then. It is his further version that the said Thankamma chechi assured him that she would convey the information passed on by him (PW9), to the appellant, who was her co-worker. They had conversation about the injury sustained to the appellant. PW9 enquired whether Thankamma chechi had her dinner. According to PW9, to that query, she replied that she was waiting for a relative to have food. On the third day, only when police came to question him, he came to know that Smt.Thankamma died. He identified the appellant Satheesan in Court. He also deposed that the appellant was a vegetable cutter in the hotel and he cuts vegetables using his left hand by holding the vegetables with his right hand. Ext.D3 contradiction is marked through him. 25. PW10 is the Manager of Bismillah hotel. He deposed that the deceased and the appellant were kitchen staff of the said hotel and they were co-workers. Deceased was working there for Crl.Appeal No.268/13 -:19:- quite some time, say 6 months and the appellant joined their hotel almost one month back. According to him, she joins for work at 07.00 a.m. and leaves by 04.00-04.30 p.m. everyday. She was engaged in kitchen work. He deposed that, on 15/06/2011, the deceased had come for duty and she left in the evening. He also deposed that the appellant/accused told him that he is having pain in his left hand and he need to consult a Doctor and hence he sought for leave from afternoon of 15/06/2011. It is his version that the appellant never came back for duty thereafter. On 16/06/2011, the deceased did not turn up for duty in the usual time and hence he rang her on her mobile phone, but could not get her. Later he came to know that Thankamma died. He identified appellant in Court. The ledger of the hotel was also produced to the investigating officer. 26. PW11 is Dr.Jobin Vadath, an Ayurveda Physician conducting an Ayurveda Clinic at Peruvammuzhi junction. He deposed that, on 15/06/2011, at about 08.00 p.m., the appellant herein approached him for treatment. Left hand was on a sling. He examined him and found that there was nothing serious. There was a swelling and reddish appearance. He did not give Crl.Appeal No.268/13 -:20:- any medicine to him. He issued Ext.P3 reference letter to the appellant in his hospital's letter head, referring him to Paruthuvayal hospital. Ext.P3 contained his sign and seal. According to him, the appellant was healthy and sound. Ext.P3 was seized by PW28 from room no. 105 of Surabhi Lodge, Perumbavoor, the room from which the appellant was arrested on 22/06/2011. 27. PW12 Vijayanadhan was the then Manager of Surabhi Lodge, Perumbavoor. He deposed that the appellant occupied room no. 105 of the lodge and Ext.P4 is the seizure mahazar for the seizure of register by PW28 to which he is an attestor. He identified appellant as the person who took room on that day. Ext.P5 is the receipt for receiving back the register. According to him, without any difficulty, the appellant wrote the details in the register with his left hand by holding pen. Police had shown the appellant to him and he identified the appellant. 28. PW13 is a bus conductor who was working at Muvattupuzha depot of KSRTC during the relevant period. According to PW13, he knew the appellant as the appellant was working in the KSRTC canteen at Muvattupuzha for sometime Crl.Appeal No.268/13 -:21:- earlier. He deposed that, on 16/06/2011 and dates prior to that, he was on duty as conductor in the KSRTC bus shuttling between Muvattupuzha and Ernakulam during the early morning service. On 16/06/2011, the bus started service from Muvattupuzha at 05.00 a.m. to reach its destination Ernakulam. The bus passes through Peruvammuzhi where the bus stops. At about 5.15 a.m., bus reached Peruvammuzhi bus stop and the appellant got into the bus. It is his version that he noticed the appellant as he already knew him and also of the fact that he boarded from a strange place. 29. PW14 Manoj Kumar is doing business in the name and style of New Prakash Electroplating Company opposite to Mathrubhumi Press at Kaloor. He deposed that, on 16/06/2011, as his father came to open the shop at about 09.00 a.m., the appellant herein was present there. PW14's father called him over phone and told him that one person is waiting to sell gold. He reached the shop and saw the appellant. The appellant was found tensed. His left hand was on a sling. It is his version that the appellant told him that he met with an accident at Kacherippady and that his son was admitted in PVS Hospital, Kaloor and he Crl.Appeal No.268/13 -:22:- need to take scan of the child and also need to purchase medicines. He asked to receive the gold and help him by giving money of its worth. A chain weighing one sovereign of disco fashion with a cross in it, one bangle of half a sovereign of tubular design and a ring of quarter sovereign of ordinary fashion were with him. Altogether, it was 14 grams. It is his further version that to make sure that the gold the appellant brought is free of dispute or issues, PW14 sought for an undertaking from the appellant which the appellant wrote in a white paper with his right hand. He wrote name as Zacharia and he signed on it, which is marked as Ext.P6. He also stated that the appellant purchased an imitation chain of 'spadikam' fashion saying that he could replace the sold ornament. The said chain was worth `1,000/-. PW14 calculated the value of gold sold by the appellant as `24,000/-. He counted 500 milligram as impurity. After deducting `1,000/-, he handed over `23,000/- to the appellant. It is his further version that, on the very next day also, the appellant came to his shop and shown him the spadikam chain in a broken state. He wanted it to be repaired then and there. PW14 told him that it would take time to repair. So, the appellant took the same Crl.Appeal No.268/13 -:23:- along with him. The said broken chain is marked as MO15. It is his version that within one week, police brought the appellant to the shop and he identified him. He further deposed that they melted the ornaments and converted it into an ingot. MO16 series (2 in numbers) are the said ingots. According to him, he cut the gold into two with the help of goldsmith PW15 Vishwan. Ext.P7 is the mahazar prepared for the seizure of the ingots and PW14 is an attestor to it. Seizure mahazar of Ext.P6 is marked as Ext.P8 and PW14 was an attestor to it also. During cross-examination, he deposed that chains like MO15 is commonly available in market. 30. PW15 is a goldsmith at Kaloor and is an attestor to Ext.P7 mahazar. He deposed that he cut the ingot into two pieces in order to verify whether the inside is hollow. He found the same to be gold and weighed it as 13½ grams of 20 and 22 carat gold. 31. PW16 is an autorickshaw driver at the relevant time. He was running the auto near KSRTC bus stand at Ernakulam. He deposed that, on 16/06/2011 at about 10.00-10.30 a.m., as he was returning from another trip, the appellant herein stopped the auto and asked him to drop him at Kacheripady. When they reached Kacheripady, the appellant asked him to proceed to the Crl.Appeal No.268/13 -:24:- bus stand for going to Perumbavoor. Then PW16 told him that he might not get bus from there and it would be easy to get private bus from Kaloor Manappattipparamba. Appellant agreed. As he turned the auto, the appellant told that he is having pain and asked to stop near a bar. Accordingly PW16 stopped near Paramara bar and the appellant went in and came back after consuming alcohol. Thereafter he told PW16 that he need to purchase a bag. So, they went to railway station and bought a hand bag. Appellant asked how much would it cost for a trip to Perumbavoor in PW16's auto. He told `400/-. Appellant agreed and they proceeded to Perumbavoor. As requested by the appellant, auto was stopped in front of a lodge near M.C. Road. Appellant asked for the mobile number of PW16 and PW16 gave it to him. A room boy came from the lodge and took the bag from auto into the lodge. Appellant had given `500/- and he did not collect balance `100/- from PW16. He identified the blue colour shirt worn by the appellant at that time and it is marked as MO17. Later he identified the appellant at the Police Station. 32. PW17 Anwar is a cool bar shop owner below Surabhi Lodge at Perumbavoor. He deposed that appellant is known to Crl.Appeal No.268/13 -:25:- him and they were friends. On 16/06/2011, the appellant reached his shop as he took room in the lodge. The appellant was found with a sling on his left hand. There was no other health issues for the appellant. He requested him to arrange a vehicle for him to go to Paruthivayal hospital for treatment. PW17 arranged an autorickshaw of his brother-in-law Suneer for the same. One or two times PW17 also accompanied the appellant to the hospital. It is his version that the appellant was never admitted in the hospital as in-patient. He further deposed that on 2[nd] day, the appellant entrusted with him `15,000/- for safe custody . From the said amount, he bought back `5,000/- and `2,000/- each on two occasions. He saw the police arresting the appellant from the lodge. Ext.P9 is the arrest memo and Ext.P10 is the custody memo respectively and he is an attestor to both. He also identified MO17 and MO18 as the shirt and dhothi worn by the appellant at the time of his arrest. He also admitted his signature in Ext.P11 seizure mahazar. He identified the appellant in Court. 33. PW26 Shibu K. Issac is a bakery shop owner at Peruvammuzhi junction. He deposed that, on 15/06/2011, at about 8.00 p.m., the appellant came to his shop and attempted Crl.Appeal No.268/13 -:26:- to make a phone call from the coin box caller kept at his shop. He categorically deposed that since the coin box was not working, the appellant could not make a call. He deposed that the appellant was agitated over the same and told him for what purpose he was keeping the coin box there. He identified the appellant as the person who had come to his shop at that time. 34. On analyzing available evidence, it can be seen that the following circumstances are proved as they are either undisputed or admitted or could be inferred by necessary implication from other proved facts. (i) Ext.P16 ownership certificate issued by PW23 shows that the house in which the incident took place belongs to Reji, who is the son of the deceased. (ii) Deceased was a widow for more than 8 years and she had been staying alone in the said house at least for three years prior to the incident. (iii) Deceased Thankamma was maintaining good relationship with her blood relations and neighbours and there were no enemies to her in the knowledge of the relatives and neighbours. Crl.Appeal No.268/13 -:27:- (iv) Oral evidence of PWs 1 to 4, Ext.P2 inquest report and Ext.P17 site plan would show that the building was having a terrace roof and there was a room in the terrace with steps downward leading to the ground floor. (v) On the date of incident, when PWs 1 and 4 climbed up the said terrace using a ladder obtained from PW2, they saw the said terrace room in opened condition. (vi) Evidence of PW10, the Manager of Bismillah hotel shows that the deceased was working in the kitchen department of their hotel for last six months prior to her death and that she was punctual in attending her works and she used to reach the hotel by 07.00 a.m. and leaves the hotel by 04.00-04.30 p.m. everyday. (vii) PW10 deposed that the appellant herein had also been working in the kitchen of their hotel as vegetable cutter at least one month prior to the incident and it was of temporary nature as he was working in a leave vacancy. (viii) The deceased had worked in KSRTC canteen, Muvattupuzha for sometime earlier. (ix) The appellant also had worked in KSRTC canteen, Crl.Appeal No.268/13 -:28:- Muvattupuzha for some months prior to joining Bismillah hotel. (x) The appellant was an employee of Uduppi-Aryas Hotel at Payipra, Muvattupuzha and was a co-worker of PW9 there till he was expelled from there by the owner. The appellant, according to PW9, was a left hander as he cuts vegetables with his left hand by taking vegetables in his right hand. (xi) Evidence of PW9 and PW10 shows that the appellant and the deceased were co-workers in Bismillah hotel and they knew each other and that the appellant used the mobile phone of the deceased a few days prior to the incident to contact PW9 and PW9 also contacted the appellant in the same number once and in another occasion while PW9 called the appellant, the deceased attended the call of PW9. (xii) Appellant sought help of PW9 to get a job at his earlier working place Uduppi-Aryas hotel by contacting him from the mobile phone of the deceased. (xiii) After enquiring with the employer, PW9 informed the appellant that the employer of Uduppi hotel agreed to take him back and he could join on Wednesday. Appellant replied to PW9 that he met with some accident and his hand got fractured and Crl.Appeal No.268/13 -:29:- he would join two days later. The said conversation happened by using the phone of the deceased. (xiv) On 15/06/2011, the appellant took leave from noon time onwards from his kitchen duty stating a reason that he had severe pain in his injured left hand and he had to consult a Doctor. PW10 granted leave as requested by the appellant and he left the place. Thereafter, the appellant never returned for work. (xv) On 15/06/2011, deceased attended her duties in Bismillah hotel as usual and she left the hotel by 04.00-04.30 p.m. after receiving her wages. (xvi) Next day, i.e., on 16/06/2011, the deceased did not come for work in Bismillah hotel. Hence PW10 made a call to her cell phone and it rang fully, but there was no response from the other end. (xvii) On 15/06/2011, at about 05.30 p.m., PW6, a close neighbour of the deceased, saw Thankamma walking along the road wearing a nighty. Thereafter, she did not see her alive. (xviii) On 15/06/2011, at about 07.00 p.m., PW9 tried to contact the appellant in the number given by him to convey the information regarding availability of job at Uduppi-Aryas Hotel as Crl.Appeal No.268/13 -:30:- requested by the appellant. The deceased attended the call and they had a conversation. She stated that she was waiting for a guest and then only she would take dinner. (xix) On 15/06/2011 at about 09.00-09.15 p.m., PW8, the nearby vegetable shop owner contacted the deceased over phone to ask money due to him from her for purchase of household provisions from his shop. She attended the phone and replied that she would pay the money the next day morning as she was waiting for a guest. (xx) On 16/06/2011, PWs 1, 5 and 7 who are the children of the deceased tried to contact the deceased a number of times over phone but in vain. On request by PWs 5 and 7, PW1 came to the house of the deceased to enquire. He found the door closed from inside and there was no response in spite of his repeated calling and knocking. (xxi) PWs 1 and 4 climbed to the roof of the terrace building using a ladder obtained from PW2 and they found the door of the terrace room in open condition. They got down through the stairs and found the dead body of the deceased lying on her bed in a pool of blood with extensive injuries on her face and head. They Crl.Appeal No.268/13 -:31:- also found material objects including blood-stained MO1 chopper near the bed. (xxii) The ornaments worn by the deceased were not found on her body except one ear stud. (xxiii) PW5 who is the daughter of the deceased specifically deposed in detail the description of ornaments usually worn by her mother. It is her version that her mother was wearing ear stud, ring, bangle and chain. The ear stud was of flower inscribed round one locally called 'shinkiri'. According to her, it is very difficult to remove the said ear stud. The chain was of “disco” design with “curling” and was of almost one sovereign with a golden cross on it. The bangle was a rounded one of half a sovereign. The ring was of a quarter sovereign of ordinary make. She deposed that her mother was wearing all those ornaments the day she last saw her. Except ear stud, all other ornaments were missing from her mother's body. (xxiv) While preparing Ext.P2 inquest report, the material objects including MO1 chopper were seized from the scene of occurrence by PW28. (xxv) Ext.P12 post-mortem certificate issued by PW18 Crl.Appeal No.268/13 -:32:- proves that the death was due to head injury. All the eight injuries were independently sufficient in the ordinary course of nature to cause death, out of which, injury no.1 is most fatal. (xxvi) On 15/06/2011, at 08.00 p.m., the appellant herein was examined by PW11 in his Clinic situated at Peruvammuzhi junction. He issued a reference letter to him without imparting any treatment. (xxvii) On 15/06/2011 at about 08.00 p.m., the appellant came to the Bakery shop of PW26 situated at Peruvammuzhi junction to make a call from coin box placed there. He could not make call as the coin box was not working. PW26 identifies the accused. (xviii) On 16/06/2011 at about 05.15 a.m., the appellant got into a KSRTC bus from Peruvammuzhi junction which was staring from Muvattupuzha and was heading to Ernakulam. He was identified by PW13 the conductor of the said bus. PW13 knew the appellant earlier. PW13 also deposed that the appellant alighted from the said bus at KSRTC bus station at Ernakulam. (xxix) PW14 deposed that, on 16/06/2011, when his father came to open the shop at about 09.00 a.m., the appellant was Crl.Appeal No.268/13 -:33:- present there. PW14's father called him over phone and told him that one person is waiting to sell gold. He reached the shop and saw the appellant. The appellant was found tensed. His left hand was on a sling. Appellant offered to sell the chain weighing one sovereign of disco fashion with a cross in it, one bangle of half a sovereign of tubular design and a ring of quarter sovereign of ordinary fashion were with him. Altogether it was 14 grams. (xxx) PW14 obtained an undertaking from the appellant which the appellant wrote in a white paper with his right hand. He wrote name as Zacharia and he signed in it. It is marked as Ext.P6. (xxxi) The appellant purchased an imitation chain of 'spadikam' fashion from PW14 saying that he could replace the sold ornament. The said chain was worth `1,000/-. PW14 calculated `24,000/- as the value of gold sold by the appellant as he counted 500 milligram as impurity. After deducting `1,000/-, he handed over `23,000/- to the appellant. (xxxii) It is PW14's further version that, on the very next day also, the appellant came to his shop and shown him the spadikam chain (MO15) in a broken state. He wanted it to be Crl.Appeal No.268/13 -:34:- repaired then and there. PW14 told him that it would take time to repair. So, the appellant took the same along with him. (xxxiii) Ext.P7 is the mahazar prepared for the seizure of MO16 series gold ingots (2 nos.) and PW14 is an attestor to it. Seizure mahazar of Ext.P6 is marked as Ext.P8 and PW14 was an attestor to it also. (xxxiv) PW15 is a goldsmith at Kaloor and is also an attestor to Ext.P7 mahazar. He deposed that he cut the ingot into two pieces in order to verify whether the inside is hollow. He found the same to be gold and weighed it as 13½ grams of 20 and 22 carat gold. (xxxv) On 16/06/2011, at about 10.00-10.30 a.m., the appellant hired the autorickshaw of PW16, and as directed by the appellant, they travelled first to Kacherippady, then to a bar hotel, further to a bag shop and the appellant purchased a bag. Appellant asked the auto charge for going to Perumbavoor and agreed for `400/- and they reached Perumbavoor. The appellant asked him to stop in front of a lodge situated in the M.C. Road and the appellant got phone number from PW16 and he gave `500/- as auto charge. Crl.Appeal No.268/13 -:35:- (xxxvi) PW17 deposed that appellant is known to him and they were friends. On 16/06/2011, the appellant reached his shop as he took room in the lodge on the same day. The appellant was found with a sling on his left hand. He requested him to arrange a vehicle for him to go to Paruthivayal hospital for treatment. PW17 arranged the autorickshaw of his brother-in-law Suneer for the same. One or two times PW17 also accompanied the appellant to the hospital. It is his version that the appellant was never admitted in the hospital as an in-patient. (xxxvii) The appellant entrusted PW17 with `15,000/- for safe custody. From the said amount, he took back `5,000/- and `2,000/- each on two occasions. He saw the police arresting the appellant from the lodge. Ext.P9 is the arrest memo and Ext.P10 is the custody memo respectively and he is an attestor to both. He also identified MO17 and MO18 as the shirt and dhothi worn by the appellant at the time of his arrest. He also admitted his signature in Ext.P11 seizure mahazar. He identified the appellant in Court. 35. It is admitted fact that the deceased was working in Bismillah hotel as a kitchen staff during the period in which the Crl.Appeal No.268/13 -:36:- incident took place (16/06/2011) and the appellant/accused was also working in the same hotel in the kitchen during the relevant time. It is also in evidence that the deceased was in the habit of joining for work at 07.00 a.m and leave the work by 04.00-04.30 p.m. every day. 36. PWs 1, 5 and 7 are children of the deceased and their version is that the deceased was in good relation with them and they were in frequent contact with the deceased. In times of need, the deceased even approached her children for financial help. Their evidence coupled with evidence of PWs 4 and 6 who are neighbours would suggest that the deceased was a widow and she was residing alone in Mundiattu house, three years prior to the incident. All of them unanimously deposed that the deceased was in good terms with her children and her neighbours. Nothing is brought in evidence to show that some known persons had any enmity towards the deceased. It is also brought in evidence that the brick furnaces stop functioning during rainy season and hence migrant workers were not camping there during the relevant time as it was the season of monsoon rains in Kerala. Crl.Appeal No.268/13 -:37:- 37. At the instance of PW5 and PW7, PW1 had gone to Mundiattu house at or around 08.00 p.m. There was no light in the house. He switched on the light at sit out and called his mother but she did not respond. So, he tried to open the front door using spare key, but he could not, as another key was placed in the keyhole from inside. He called PW3 Shaji and both of them peeped through the window of the house using a torch and found legs of his mother in a lying position in bed. It is his version that he obtained a ladder from PW2, Alias with the help of PW4 Biju. Both PW1 and PW4 climbed to the terrace. The terrace room was open. They entered that room and came downstairs. After switching on the light in the hall, they opened the door of the bedroom of Thankamma. There, PW1 found his mother lying on the bed with serious injuries at her head and face. PW1 fainted then and there. They opened the door and PW2 and PW3 also came in and saw the deceased lying dead. MO1 chopper was also found near the dead body. 38. MO1 chopper is of 44 cm length. PW28 seized it from near the dead body during inquest. According to PW1 and PW7, MO1 is used in the house of the deceased. MO1 was sent for Crl.Appeal No.268/13 -:38:- chemical analysis vide Ext.P26 request and Ext.P27 is the report. MO1 is shown as item no.7 in Ext.P27. It is found with human blood, the group of which could not be traced. PW18 is the Doctor who issued Ext.P12 post-mortem report. According to her, all the 8 injuries noted in Ext.P12 could be caused using MO1 as weapon and all of them were fatal and independently sufficient to cause death in the ordinary course of nature. The probable time of death was deposed to by PW18 as 24 to 36 hours before postmortem examination. 39. The evidence of PW9 and PW10 would show that the appellant/accused was a left hander. It is also in evidence that he wrote on the register of Surabhi Lodge at Perumbavoor with his left hand. At the same time, it is also in evidence that his left hand had some injuries, though not fracture or of such serious nature, during the relevant period. During examination of the Doctor, a specific question was put to her as to whether the injuries found on the deceased could be caused with the right hand of a person who is well-versed with using his left hand using MO1 as weapon. Doctor replied that it is possible if the person is having sufficient muscle power. Treatment certificate issued from Crl.Appeal No.268/13 -:39:- Ayurveda treatment centre would not indicate any serious issues on the left hand of the appellant/accused. He was immediately left free after giving some treatment. There is absolutely nothing in evidence to show either that during the relevant period, the appellant/accused was incapacitated from doing anything with his left hand or that he was not able to execute activities with his right hand which was perfectly working. 40. The learned Special Government Pleader relied on _**Baiju v. State of M.P.**_ (AIR 1978 SC 522), _**State of Karnataka v. Deja K. Shetty**_ (1993 KHC 999) and _**Manikandan v. State of Kerala**_ (2018 KHC 40) to fortify her arguments to apply the principle of presumptive evidence in the case at hand. Of course, it is trite that when there is evidence to show that the commission of robbery and murder are forming part of the same transaction and when it is proved that the appellant is the one who committed the robbery, ruling out of hypothesis of involvement of another person would bring in the principle of presumptive evidence for the charge of murder as against the appellant. 41. To make the whole story short, evidence of PWs 6, 8 Crl.Appeal No.268/13 -:40:- and 9 would show that the deceased was alive till about 09.0009.15 p.m. of 15/06/2011. Evidence of PWs 1 to 4 would show that Thankamma was found dead at about 08.00 p.m. on 16/06/2011. Evidence of PW5 would show that the deceased was having ornaments already described earlier and the said ornaments were missing from her dead body. Evidence adduced by PW11 and PW26 would show that the appellant was present at Peruvammuzhi junction at or around 08.00 p.m., which is near the house of the deceased. PW13 deposed that the appellant got into the KSRTC bus in which he was conductor at 05.15 a.m. on 16/06/2011 from Peruvammuzhi junction and travelled to Ernakulam and alighted at Ernakulam bus stand. PW9 and PW10 also deposed that the appellant was working earlier in a canteen at Muvattupuzha KSRTC station. It probabilizes the version of PW13 that he had acquaintance with the appellant. The appellant sold gold ornaments belonging to the deceased to PW14 for an amount of `24,000/- and bought an imitation chain worth `1000/from the said shop in the morning between 09.00 a.m and 10.00 a.m. on 16/06/2011. Appellant thereafter hired the autorickshaw of PW16 by 10.00 a.m. and travelled to Perumbavoor and Crl.Appeal No.268/13 -:41:- alighted in front of Surabhi Lodge near M.C. Road. A room boy took his bag to the lodge. Ext.P4 register of the lodge and Ext.P5 receipt would show that the appellant was staying at room no. 105 of the said lodge. Ext.P11 mahazar coupled with Ext.P9 arrest memo and Ext.P10 inspection memo would fortify the testimony of PW17 that the appellant entrusted with him `15,000/- for safe custody and that he bought back `5,000/- and `2,000/respectively on two different occasions. 42. Depositions of PW1 to PW4 and PW7 read with Ext.P2 scene mahazar would show that there was no sign of scuffle in the place of occurrence. PW8, PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW17 and PW26 are independent witnesses. They are not related to the deceased. Appellant does not have a case that any of these witnesses had any enmity towards the appellant. He does not have an explanation to discharge the burden cast on him by Section 114 (a) of the Indian Evidence Act, 1872 as to how the ornaments belonging to the deceased came to his possession within hours of her death. He does not have a valid explanation for his selling of the said ornaments to PW14 and his purchase of MO15 imitation chain from him on the very Crl.Appeal No.268/13 -:42:- same day morning of the incident. Ext.P3 reference letter and chappals of the appellant were seized from the appellant at the time of his arrest on 22/06/2011. Apart from a plain denial, he does not have a case to discredit the version of the witnesses. He has absolutely no explanation for the human blood-stain found on his chappal and nail-clippings which were recovered within a week of the date of incident from his room at Surabhi Lodge at the time of his arrest. He does not even have a case or produced any medical records to show that he had sustained bleeding injuries or that he had come into contact with blood so that human blood-stain is found at his nail clippings. Nothing is brought out in evidence to show that the above witnesses have any reason to falsely implicate or connect the appellant to the attending circumstances to which they depose and especially when each of the incident deposed by them are totally independent events taking place at different occasions and at different times. The only common thread in them is the appellant herein. We are inclined to hold that prosecution proved beyond doubt the fact that the appellant herein was found with ornaments of the deceased within short time of her death. This Crl.Appeal No.268/13 -:43:- recent and unexplained possession of the stolen property by the appellant herein can sufficiently be taken as presumptive evidence of his involvement in the murder of the deceased. As already described, the deposition of above witnesses formed a chain of circumstance which are so closely knit that they unerringly points to the appellant and when read together lead us to the inevitable conclusion that none else but the appellant herein is the one who committed robbery of ornaments from the body of the deceased and apparently the proof of which, in the light of settled position of law elaborated above, moves us to the irresistible conclusion that the appellant is the person responsible for the murder of the deceased lady as well. In the result, the appeal is dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE** **Sd/-** **R. NARAYANA PISHARADI** Rp //True Copy// PS to Judge **JUDGE**