SHAJAN MATHEW v. STATE OF KERALA

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939 ## CRL.A.No. 468 of 2014 AGAINST THE ORDER/JUDGMENT IN SC NO.266/2012 OF THE SESSIONS COURT, KOTTAYAM. DATED 29-03-2014 AGAINST THE ORDER/JUDGMENT IN CP 6/2012 OF JFCM COURT III,KOTTAYAM ## APPELLANT: ACCUSED: SHAJAN MATHEW , C.NO.9166, CENTRAL PRISON, THIRUVANANTHAPURAM. BYADV. V.K.HEMA (STATE BRIEF) ## RESPONDENT: COMPLAINANT: STATE OF KERALA REPRESENTED BY DGP HIGH COURT OF KERALA. BY ADV. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2018, THE COURT ON 24.2.2018 DELIVERED THE FOLLOWING: **A.M.Shaffique & P. Somarajan, JJ. ---------------------------------------------------Crl. Appeal No.468 of 2014 ---------------------------------------------------Dated this the 27[th] day of February, 2018** ## **JUDGMENT** ## **P. Somarajan, J.** The accused came up with this appeal challenging the judgment of conviction and orders of sentence under Sections 302, 397 and 449 of the Indian Penal Code in S.C. No.266 of 2012, dated 29.3.2014, on the file of the Court of the Sessions Judge, Kottayam. 2. An age old woman met with a sad death in the hands of the accused while she was alone in her residential house. The accused was a frequent visitor of the house of the victim. On the ill fated day also, the accused came to her house and left the place after some time. The deceased is one Thankamma Mathai. The incident happened on 17.1.2012 at about 1.00 p.m. The prosecution case is that the accused, with an intention to commit robbery of gold ornaments of the deceased, inflicted cut injuries on her with an axe resulting in her instant death and took away her gold ornaments. ## **Crl. Appeal No.468 of 2014** :: 2 :: 3. The victim was aged 80 years at the time of commission of offence. The crime was reported to the police by 4 p.m. on 17.1.2012 by CW1 (PW1). After trial and hearing, the learned Sessions Judge found the accused guilty of offence punishable under Ss.302, 397 and 449 IPC and convicted him thereunder and sentenced to undergo imprisonment for life and to pay a fine of Rupees two lakhs for the offence punishable under S.302 IPC; to undergo rigorous imprisonment for a period of seven years for the offence under S.397 IPC and to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rupees one lakh for the offence punishable under S.449 IPC. There was a direction to pay 50% of the fine amount, on realization, to the legal heirs of the victim. 4. There is no eye witness to the alleged incident. The prosecution mainly relied on the following circumstances: (1) The deceased died due to the injuries sustained on her body, which were noted as ante-mortem injury Nos.1, 2, 6, 7, 8 and 9; (2) The weapon used for the commission of offence, identified as MO7 axe, was recovered from the kitchen slab of the house of the victim, ## **Crl. Appeal No.468 of 2014** :: 3 :: based on the disclosure statement alleged to have been given by the accused while under custody; (3) The axe recovered was found to be stained by blood; (4) They were seen together in the house of the victim just before the commission of offence (theory of “last seen together”); (5) The gold ornaments worn by the victim were found to be stolen; (6) The gold chain worn by the victim, identified as MO1, was recovered based on the disclosure statement alleged to have been given by the accused while under custody; (7) The accused was found in possession of an amount of Rs.29,500/- and the amount received by pledging the gold chain comes to Rs.30,000/-; (8) At the time of arrest of the accused, he was having an amount of Rs **.** 22,500/- in cash; (9) The golden cross (MO2) worn by the victim was found in the possession of the accused as on 19.1.2012 while he was at the residence of PW25; (10) The accused made an enquiry regarding the missing of gold bangles on 25.1.2012 at the residence of PW26, just one day after his stay in that house; (11) MO3 series of ear-studs belonged to the victim were sold and exchanged for a gold ring (MO4) by the accused; (12) The gold ring (MO4) was subsequently sold by him; and (13) The accused had written a message to his wife in a note book expressing his intention to leave the place. ## **Crl. Appeal No.468 of 2014** :: 4 :: 5. Postmortem examination on the body of the deceased was conducted by PW31, Assistant Professor and Police Surgeon in the Medical College, Kottayam. Ante-mortem injuries noted in Ext.P13 postmortem certificate are the following: ## “ - B. INJURIES (Ante mortem) 1. Chop wound on front of head on midline 6x2 cm, almost vertical lower and at root of nose, bone deep. The margins irregular with bridging of tissues. The front portion of the wound cleanly cut and pointed, scalp contusion underneath over an area of 6x6 cm. 2. Chop wound on right side of front of head 5.5x2 cm almost vertical 3 cm above middle of eye brow, bonedeep. A depressed comminated fracture underneath on frontal bones over an area of 4x4 cm with a depression of 0.5 cm. 3. Abraded contusion on right cheek 5x3 cm transverse. 4. Incised wound on right ear lobule 1x1 cm for its entire thickness. 5. Incised wound on left ear lobule 1x1 cm involving its entire thickness with a skin tag of 1 cm length. 6. Lacerated wound on left mastoid region 3.5x1 cm, transverse just behind mastoid process, scalp contusion over the left side of back and top of heel 12x12 cm. 7. Lacerated wound on left side of occipital region 3.5x1.5 ## **Crl. Appeal No.468 of 2014** :: 5 :: cm. transverse, 4 cm above injury No.6. A depressed fracture 1x1 cm with a depression of 0.5 cm with an extension of fissured fracture towards the left side of head for a length of 13 cm. ## 8. 9. Lacerated wound on left parietal eminence 5.5 x 1.5 cm, front to back direction, bone deep with laceration of right temporal lobe side 4x4x0.5 cm and under surface of right frontal lobe 1x1x0.5 cm. Lacerated wound on left side of top of head 6.5x1 cm front to back direction, bone deep, 10 cm above top of ear subdural and subarchnoid hemorrhages seen on both sides of brain. The brain congested.” The cause of death is stated to be due to injuries sustained to the head. 6. The alleged recovery of MO7 axe cannot be brought under S.27 of the Evidence Act firstly on the reason that it was recovered on 23.1.2012 from the kitchen slab of the house wherein the alleged incident happened. Even prior to its recovery, it was known to the investigating officer as PW40, Scientific Assistant of FSL, DCRB, Kottayam, who was employed in the place of occurrence to collect scientific evidence, had seen an axe on the side of washbasin. It is after the visit of the Scientific Assistant (PW40), the above said MO7 axe was recovered from the said house, that too from the kitchen ## **Crl. Appeal No.468 of 2014** :: 6 :: slab. The prosecution did not have any case that it was lying concealed or kept in a secluded place. The oral evidence tendered by PW40 would show that she had seen the axe kept in the house at the time when she inspected the house for collecting scientific evidence i.e. on 17.1.2012. It is thereafter, on 23.1.2012, the very same axe was recovered from the very same place i.e. from the kitchen slab of the house wherein the alleged incident happened under the guise of a disclosure statement alleged to have been given by the accused while under custody. The oral evidence tendered by PW40 would show that presence of such a weapon at the kitchen slab of the said house was within the knowledge of the investigating officer. So, there cannot be a subsequent revelation/ detection/discovery of the said axe. A fact which was already within the notice of the investigating officer or capable of taking notice by the investigating officer otherwise than through the accused cannot be brought under the umbrella of S.27 of the Evidence Act. ## 7. Secondly, on the reason that though blood was detected, its origin, either as a human blood or otherwise, was not revealed hence cannot be used as an incriminating object so as to bring its recovery under the purview of S.27 of the Evidence Act. Further, ## **Crl. Appeal No.468 of 2014** :: 7 :: there is nothing in MO7 weapon to connect with the accused. No evidence was adduced to show that the said weapon is belonged to the accused or it was used by the accused for the commission of the offence. 8. The theory of “last seen together” was applied by the learned Sessions Judge as one of the incriminating circumstances based on the oral testimony of PW4, PW6, PW9 and PW23. There is nothing in the oral evidence of PW4 proving involvement of the accused. He did not even know who are the persons present in the house at that time. PW6 is a lottery seller by profession. On the alleged day, he did not go for any work. By 10.00 a.m., he went to the nearby river and washed his dress. While he was on the way to the river, he had seen a person with white shirt and dothi entering into the house of the victim (Elappunkal veedu). After washing his dress, he came back to his house. On his return, he had seen the victim sitting at the sit out of her house along with a man with gray hair and beard. According to him, both of them were sitting facing towards each other and he had seen the said person very closely. Further, according to him, he had seen the said person on so many earlier occasions as he is a frequent visitor of the house of the ## **Crl. Appeal No.468 of 2014** :: 8 :: victim. Again he went to the said river for taking bath and after having bath he returned. At that time also, he had seen both the victim and the accused and the victim was doing some work in the kitchen and the accused was found standing inside the house. He had also identified the accused in the box. The oral evidence tendered by PW6 was under challenge on the reason that no test identification parade has been conducted to identify the accused and that accused is not familiar to PW6, which is well evident from the fact that whereabouts of the accused or his name was not mentioned by the witness. Test identification parade is required only when the assailant is not known to the witness. In the instant case, though the name and whereabouts of the accused are not known to the witness his face is so familiar to the witness as he was a frequent visitor of the house of the victim and he had seen him several times. Further, he had occasion to see him on the ill fated day in broad day light on three times. He identified the accused in the box. He had also deposed about his identification as a person having gray hair and gray beard and hence his identification of the accused can be safely accepted. ## **Crl. Appeal No.468 of 2014** :: 9 :: 9. The oral evidence tendered by PW6 further stood as corroborated by the oral evidence tendered by PW9, the wife of accused, who received a telephone call from the house of deceased. According to her, it was at about 10.30 a.m., the victim made a telephone call to her to enquire about her ailment as disclosed by her husband who was present in the said house at that time. The victim informed PW9 that she came to know about her ailment right from the mouth of her husband, the accused herein. She had also informed PW9 that her husband is very much there in her house at that time. The documents relating to the calls originated from the house of accused were collected and produced and marked as Exts.P17, P17(a), P18 and P19, which would clearly show that the call was originated at 11.24.45 (11 hours 24 minutes and 45 seconds). There is nothing to disbelieve or discredit the oral evidence tendered by the wife of the accused. The presence of accused at 11.24 a.m. is well evident from the abovesaid documents (electronic records maintained by the authority). The main challenge mooted by the appellant is that PW23, a barman examined by the prosecution, had deposed that the accused came to the bar after 11 a.m. and was very much there in the bar from 12 noon to 1 p.m. on the ill fated day and advanced an argument that the theory of “last ## **Crl. Appeal No.468 of 2014** :: 10 :: seen together” cannot be applied as the accused was present in the bar by 11 a.m. and that PW6 had seen the victim alive by 12 noon on that day. It was also submitted that the oral version given by PW23 that the accused came to the bar after 11 a.m. and he was present in the bar till 1.00 p.m. on that day would take away the application of theory of last seen together. Going by the oral evidence tendered by PW23, it is clear that what he had tendered is the approximate time by which he had seen the accused. He had also made it clear that the accused was present in the bar at 12 noon till 1.00 p.m. At first, he deposed that he came to the bar after 11.00 a.m. and then clarified it as 12 noon and was there in the bar till 1.00 p.m. As discussed earlier, it is only an approximate time given by the barman and it may have its own infirmities. But, the electronic documents produced and marked as Exts.P17, P17(a), P18 and P19 would clearly show that the telephone call was originated from the house of the victim by 11.24 a.m. The oral evidence tendered by PW9 would show that the accused was very much present at the house of victim at that time. The body of the victim was detected in and around 3.00 p.m. on that day. It is true that there is a big time gap of three hours in between the abovesaid two time factors - 11.24 a.m. and 3.00 p.m. The oral evidence ## **Crl. Appeal No.468 of 2014** :: 11 :: tendered by PW9 along with the electronically generated data in Exts.P17 to P19 would give sufficient support to the oral testimony of PW6 lottery seller who had seen the accused within the house of the victim till 12 noon on that day. The approximate time spoken by PW3 has to be understood and appreciated with the abovesaid attending circumstances and it would show that the accused was present in the house of the victim at least by 11.24 a.m. on that day. 10. The theory of “last seen together” itself is not a conclusive proof especially when there is inconsistency with respect to the time factor spoken by the witnesses. But in the instant case, though there is some gray portion as to the exact time in which the accused and the victim were found together, the difference is so narrow and not sufficient to discard the application of the said theory especially when the accused did not offer anything with respect to his presence in the place of occurrence, but it requires corroboration by other evidence. 11. PW7 is the son of the victim who had identified MO3 series, a pair of specs, MO1 gold chain and MO2 gold cross as the gold ornaments worn by the victim. It was the usual practice of the ## **Crl. Appeal No.468 of 2014** :: 12 :: victim to use all these three items of gold ornaments besides gold bangles (which were not recovered by the prosecution). Even according to PW7, these gold ornaments were used by the victim as part of her ornaments of daily use and never removed the same from her body. MO1 gold chain was recovered based on the disclosure statement alleged to have been given by the accused while under custody on 19.1.2012. Ext.P5 receipt of pledge of gold chain issued by PW15 was seized at the time of arrest of the accused from his body. PW15 had admitted that he had received MO1 chain from the accused which was pledged with him for an amount of Rs.30,000/- on 19.1.2012. The recovery of MO1 chain, based on the confession statement of the accused while under custody cannot be brought under Section 27 of the Evidence Act because, of the reason that the investigation had knowledge about the place wherein the above said object was entrusted and it is evident from Ext.P5 receipt recovered from the body of the accused. The receipt itself discloses the name and address of the financial institution, gold loan number, date of gold loan, name of accused, the amount received under the loan and the weight of the gold ornament as 14 gms. It was recovered from the body of the accused at the time of arrest. So discovery of the said gold ## **Crl. Appeal No.468 of 2014** :: 13 :: ornament under the alleged disclosure statement cannot be brought under the purview of S.27 of the Evidence Act. But the receipt Ext.P5 kept by the accused would be relevant with respect to his possession of gold ornament weighing 14 gms. and the pledging of the same with United Bankers under a gold loan for an amount of Rs.30,000/- as on 19.1.2012. The possession of an article belonged to the victim by the accused itself would be an incriminating circumstance unless there is proper explanation from him how it was came into his possession. The said possession of article of theft/robbery is presumptive of commission of homicide if the same forms part of transaction under which theft/robbery committed. The legal position is also settled by this Court in **Manikandan v. State of Kerala (ILR 2018 (1) Kerala 527)** (in which both of us are members) after referring the decision rendered in **Baiju v. State of M.P. (1978 K.H.C.490 = (1978) 1 SCC 588 = AIR 1978 SC 522), George v. State of Kerala ((2002) 4 SCC 475), Wasim Khan v. The State of Uttar Pradesh (1956 SCR 191 = AIR 1956 SC 400), Alisher v. State of Uttar Pradesh ((1974) 4 SCC 254 = AIR 1974 SC 1830) and Emperor v. Chintamani Sabu (AIR 1930 Cal. 379)** and also the view taken by the Madras High Court in **Re Guli Venketaswamy (AIR 1950 Mad. 309),** High Court of Nagpur in **Ramprashad** ## **Crl. Appeal No.468 of 2014** :: 14 :: **Makundram Rajput v. The Crown (AIR 1949 Nag. 277)** and High court of Allahabad in **State v. Shankar Prasad (AIR 1952 All. 776)** and the Apex Court decision in **Tulsiran Renu v. The State (AIR 1954 SC 1)** and it was held thus: _“in fact there is no conflict in the legal position settled in Baiju v. State of M.P. (supra) and other decisions referred in the earlier paragraphs with the Larger Bench decision (three Judge Bench) rendered in George v. State of Kerala (supra). The criteria for the application of the principles laid down in_ _**George's case** and in_ _**Baiju's case** is resting on the question whether the murder and robbery alleged would form part of same transaction and when there is evidence to show or to presume that both the commission of murder and robbery form part of same transaction, presumptive evidence of charges of murder can be applied besides robbery. But, when there is evidence to show that the commission of murder and robbery will not form part of the same transaction or when there is possibility of having other hypothesis for the commission of murder rather than what is attached with the commission of robbery/theft, there cannot be any application of presumptive evidence_ ## **Crl. Appeal No.468 of 2014** :: 15 :: _for the charges of murder. The factual scenario involved in_ _**Baiju's case** (supra) would come under the purview of former one and in_ _**George's case** (supra) would come under the purview of latter one. The test is to find out whether the unexplained possession of the articles of theft/robbery would form part of same transaction in which the offence of murder was committed. Then only the presumptive evidence of unexplained possession of the articles of theft/robbery can be extended to the charges of murder. …..... Non explanation or false explanation as to how the articles of theft/robbery came into his possession would be an additional link against the accused. ...”_ 12. In the instant case, the accused was not found in physical possession of MO1 chain. But the possession of article of theft/robbery held by the pledgee can only be construed for and on behalf of the pledgor/accused and unexplained possession of the said article by the accused or its entrustment with any other person would attract presumptive evidence not only for the commission of robbery/theft but also for the charges of murder. ## **Crl. Appeal No.468 of 2014** :: 16 :: 13. The oral evidence tendered by PW28 gives sufficient corroboration to the pledging of MO1 gold chain for an amount of Rs.30,000/- by the accused. On the same day, he took a room in a lodge run by PW28 and entrusted an amount of Rs.29,500/- at the cash counter for keeping the same safely and had given an amount of Rs.200/- by way of rent to the room out of Rs.500/-. Room register is produced and marked as Ext.P6. He had also identified the accused. The source of the said amount of Rs.30,000/- by the accused on the date of pledging of MO1 gold chain was not explained by him during his examination under S.313 Cr.P.C. The fact that he was in possession of Rs.30,000/- on the date of pledging of MO1 gold chain, in the absence of proper explanation as to the source of the said amount, would give sufficient support to what is spoken by PW15 and the same would stand as another incriminating circumstance against the accused. 14. The recovery of MO3 series of ear studs from PW19 which was entrusted with him by the accused in exchange of a gold ring on 20.1.2012 further stood as another incriminating circumstance pointing towards the guilt of accused. The gold ring was sold to PW12 for an amount of Rs.3,120/-. But there is some ## **Crl. Appeal No.468 of 2014** :: 17 :: inconsistency with respect to the date of sale and date of pledging. But the fact that PW19 had received MO3 series of ear studs belonged to the victim, identified by PW7 her son, would be relevant when it was recovered based on the disclosure statement given by the accused while under custody and it can be safely acted upon as there is nothing to discredit or discard the oral evidence of PW12 and PW19 except a minor mistake in the date of sale as spoken by PW12 (19.1.2012 instead of 20.1.2012). 15. Yet another incriminating circumstance brought out by the prosecution is based on the missing of golden cross worn by the victim. The accused went to the house of PW25 on 19.1.2012, the second day of the alleged incident. At that time, he was in a drunken stage. PW5 also joined with the accused for sharing some liquor brought by him and he spent his night there and left the place on the next day. While PW25 was cleaning the table cloth by arranging the books in order, he happened to see the golden cross lying on the table cloth. On an enquiry made by him, it was revealed that it is not belonged to either his wife or mother or any of the inmates in the house. By that time, he came to know about the commission of murder of the victim through newspaper and he ## **Crl. Appeal No.468 of 2014** :: 18 :: suspected something fishy and informed the matter to the police and handed over the golden cross. The only visitor to his house on the previous night was the accused who spent the night with him in that house. The golden cross was identified as that of the victim by her son. The fact that it was found and recovered from the house of PW25 and the accused stayed there on the next day of the alleged incident and that the said golden cross is one of the ornaments worn by the victim would rule out all other possibilities of having the same in the house of PW25 other than through the accused and it would be another incriminating factor pointing towards the guilt of accused. 16. Further, PW26 had deposed that the accused came to her house and stayed there for a while and returned. On 21.1.2012 he again came there and enquired about missing of some gold bangles. From the house of PW26 he went to a lodge room and spent his night there. It is thereafter he came to the house of PW26 on 21.1.2012 in search of the missing gold bangles and he was advised by PW26 to make a search in the lodge room itself. The enquiry and search made by him in the house of PW26 to find out the missing gold bangles would be an indication that he was in ## **Crl. Appeal No.468 of 2014** :: 19 :: possession of the gold bangles at the time he went to the house of PW26. There is nothing to disbelieve or discard the oral evidence tendered by PW26 in that behalf. This would show that the accused was in possession of some gold bangles just after the commission of offence. He did not have any explanation to offer how he came into possession of gold bangles. He did not have any case that it belonged to his wife or any of his near relatives or friends. It is true that there is no identification of gold bangles by PW7 as it was not recovered by the investigation. Failure to recover the abovesaid material object is not sufficient to reject the oral testimony of PW26 with respect to existence of a fact (the accused made enquiry regarding the missing of gold bangles) and the inference which can be drawn based on the said fact once it is found to be relevant. The fact that accused made some enquiry before her with respect to missing of some gold bangles would show that he was in possession of some gold bangles when he made a visit to her house and some how it was lost. It would be an another incriminating circumstance against the accused as the possession of some gold ornaments at the time when he made a visit to the house of PW26 or just before that is well evident from the deposition of PW26 and no explanation was forwarded by the accused how he came into possession of ## **Crl. Appeal No.468 of 2014** **==> picture [39 x 9] intentionally omitted <==** those bangles. He did not have any case that the gold bangles were belonged to him or his wife or any other relative. No explanation was forwarded how he came into possession of the gold bangles. 17. Another incriminating circumstance was also brought out through the entry made by the accused in a diary kept by him expressing his intention to leave the place presumably intended to convey/communicate to his wife PW9. The said conduct of the accused, when tested with the attending circumstances, would come under the purview of S.8 of the Evidence Act, in the absence of existence of any such exigency or any compelling reason. No such exigency or compelling reason was offered by the accused during his examination under S.313 Cr.P.C. 18. The circumstances thus brought out by the prosecution are complete and consistent with the guilt of accused and no other hypothesis rather than the guilt of the accused is possible or probable. The manner in which the offence was committed and the number of injuries and the weapon used for commission of offence would bring the matter within the sweep of first and second limbs of ## **Crl. Appeal No.468 of 2014** :: 21 :: S.300 IPC and hence there cannot be any interference to the conviction under S.302 IPC against the accused. 19. The above said commission of offence also satisfy the ingredients which constitute offence punishable under S.397 IPC as the offence of murder was committed at the time of commission of robbery of gold ornaments belonged to the victim and hence there is no reason for any interference to the conviction under S.397 IPC against the accused. 20. Even according to the witnesses, the accused is a usual visitor of the house of the victim and just before the commission of the offence, both the victim and accused were found in the house and they were in good terms. In order to attract Section 449 IPC, there should be house trespass as defined under Section 442 IPC. There is no sufficient evidence to show commission of criminal house trespass. Hence the finding of guilt of accused under S.449 IPC and conviction and the sentence awarded thereunder are liable to be set aside. We do so. 21. The sentence awarded for the offence under S.302 IPC is ## **Crl. Appeal No.468 of 2014** **==> picture [39 x 9] intentionally omitted <==** the lessor sentence, hence does not call for any interference by this Court. In so far as the sentence awarded for the offence under S.397 IPC is concerned, it reflects a proper balance between the mitigating and aggravating circumstances, hence deserves no interference by this Court. In the result, appeal allowed in part. The judgment of conviction and orders of sentence under Ss.302 and 397 IPC against the accused are upheld. The judgment of conviction and order of sentence for the offence under S.449 IPC are hereby set aside and the accused is found not guilty for the offence under S.449 IPC and hence acquitted for the charge under S.449 IPC. **A.M. Shaffique Judge** **P. Somarajan Judge** ahz/