Sivan @ Sivanandan s/o Sasidharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** ## **CRL.A.No.602 of 2014** **AGAINST THE ORDER/JUDGMENT IN CP 5/2011 of JUDICIAL MAGISTRATE OF FIRST CLASS, SOUTH PARAVOOR** **AGAINST THE JUDGMENT IN SC 181/2011 of ADDITIONAL DISTRICT & SESSIONS COURT - V, KOLLAM DATED 13-02-2014** **CRIME NO.1251/2010 OF Paravoor Police Station , Kollam** **APPELLANT/ACCUSED:** **SIVAN @ SIVANANDAN S/O SASIDHARAN, NANDU NIVAS, POZHIKKARA CHERRY, PARAVOOR VILLAGE** **BY ADVS. SRI.RENJITH B.MARAR SRI.B.V.JOY SANKER SRI.P.B.SUNEER SRI.P.VISHNU (PAZHANGANAT) SRI.V.G.ARUN (K/795/2004) RESPONDENT/COMPLAINANT: STATE OF KERALA RERPESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM SPL.P.P. FOR WOMEN AND CHILDREN SMT. S.AMBIKA DEVI** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2019, THE COURT ON 28.06.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.602/14 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ The accused in Sessions Case No.181/11 of the Additional District and Sessions Judge-V, Kollam is the appellant. He has been convicted and sentenced for offence u/s 201, 397 and 302 of I.P.C. and to undergo rigorous imprisonment for three years and fine of `5,000/- for offence u/s 201, rigorous imprisonment for 7 years for offence u/s 397 and imprisonment for life and fine of `20,000/- for the offence u/s 302 of I.P.C. along with default sentences as well. The accused had been convicted with reference to the murder of one Sukumari Amma. She was found strangulated using a plastic rope and the assailant made sure that she is dead by inflicting an injury on her neck with the handle of a spade. 6.5 sovereigns of gold chain, 5 sovereigns of gold bangles and a mobile phone of Nokia make were robbed. The value of articles robbed was `1,68,000/-. The prosecution also had a case that the assailant had attempted to destroy the evidence. Crime No.1251/10 came to be registered by the Station Crl.Appeal No.602/14 -:3:- House Officer of Paravoor Police Station and during the investigation it was found that the appellant/accused had committed the offence and accordingly final report was filed before the Judicial First Class Magistrate Court, Paravoor. The matter has been committed to the Sessions Court, Kollam and made over to the Additional District and Sessions Court. Charge was framed against the accused for the aforesaid offences. In order to prove the prosecution case, PW1 to PW26 were examined and Exts.P1 to P37 series and MO1 to MO14 were marked. On behalf of the defence, Exts.D1 to D5 were marked. DW1 and DW2 were examined. Exts.X1 and X2 were produced by DW1. 2. The prosecution case is that, on 28/10/2010 in between 4.00 p.m and 4.50 p.m, accused committed murder of Sukumari Amma by strangulating her neck with MO1 rope and committed robbery of gold ornaments and a mobile phone. The prosecution relied upon circumstantial evidence. The FIS Ext.P14 was given by PW10 who is a friend of Sukumari Amma's son. She was found dead at the old kitchen near their house. The body was shifted to Medical College Hospital. The inquest was conducted Crl.Appeal No.602/14 -:4:- by the Investigating Officer and Ext.P24 is the inquest report. Postmortem was conducted by PW20, Professor of Forensic Medicine at Medical College Hospital, Thiruvananthapuram and Ext.P21 is the postmortem certificate. PW20 noticed 12 ante- mortem injuries, which are extracted hereunder:- - _“1. Multiple small abrasions over an area 4x3 cm on the forehead in the middle 1 cm above root of nose._ _2. Multiple small abrasions over an area 2x2 cm on left temple._ _3. Abrasion 1x0.5 cm on right side of nose 1.5 cm below its root._ _4. Abrasion 1x0.5 cm on the nose 2 cm below its root._ _5. Abrasion 2.5x1 cm on under chin just to right of midline._ _6. Abrasion 3x1.5 cm on the front of neck in the middle 2 cm above top of breast bone._ _7. Abrasion 10x0.9-2 cm, horizontal on the front and sides of neck in the middle 5 cm above top of breast bone._ _Flap dissection of neck was done under bloodless field. Subcutaneous tissue underneath was normal. Superior horns of thyroid cartilage on both sides seen fractured with infiltration of blood around into upper part of sterno thyroid and thyro hyoid muscles on both sides. Hyoid bone, cricoid cartilage and other midline structures of neck including soft tissues and bones were normal and intact._ _8. Multiple small abrasions over an area 13x7 cm on_ Crl.Appeal No.602/14 ## -:5:- _the back of right elbow._ _9. Abrasion 3x1 cm inner aspect of middle of right forearm._ _10. Abrasion 0.3x0.2 cm on the front of right wrist._ _11. Contusion 1.5x0.3 cm on the back of left forefinger 1cm below its root._ _11. Contusion 5x4x0.5 cm on the back of left hand.”_ The Doctor opined that death was due to constriction force on the neck. He further deposed that the strangulation could happen with MO1 and injury No.5 is possible with MO10 handle of a spade. 3. The main contention urged by the learned counsel for the appellant is that a case of suicide cannot be ruled out especially in the light of the evidence available in the case. After post-mortem examination, PW20 gave a statement before police that there is a possibility of suicide and attempt to rescue her by someone cannot be ruled out. Later, on 15/11/2010, he gave a further statement supporting the prosecution case that it was a strangulation using MO1 rope. As far as other evidence relating to recovery of articles are concerned, it is submitted that there is absolutely no material to implicate the accused and evidence had been fabricated against him. The entire evidence looked as a Crl.Appeal No.602/14 -:6:- whole does not point out to the guilt of the accused. 4. On the other hand, learned Public Prosecutor while supporting the judgment of the Additional Sessions Court argued that sufficient materials are available to prove the complicity of the accused to the crime and the entire circumstances in the case have been proved beyond reasonable doubt. 5. In so far as the case rests on circumstantial evidence, it is worthwhile to scan through the evidence adduced by the prosecution and the defence before analysing the respective contentions of the parties. 6. PW1 is only an attestor to scene mahazar which is marked as Ext.P1. PW2 is an attestor to the recovery mahazar of the rope which was allegedly used for committing the murder. He also attested Ext.P3, the mahazar for recovery of SIM of a mobile phone. He is a neighbour and he also deposed that he had seen Sukumari Amma on 28/10/2010 by about 4.00 p.m. near the gate on the western side of their property. He identified MO1 rope. PW3 wife of the accused deposed that her mobile number ends with two digits '66'. When the prosecutor asked a leading question as to whether the mobile number was 9895693366, she Crl.Appeal No.602/14 -:7:- answered in the affirmative. PW4, Scientific Assistant at Forensic Science Lab visited the scene of occurrence on 29/10/2010. She examined the ceiling fan found on the dining room in the house of deceased and she could not find out any traces of it being used for hanging. The material objects collected by her were packed, labelled and handed over to the Investigating Officer. PW5 was the finger print expert at Kollam Finger Print Bureau during the relevant time. He visited the place of occurrence on 29/10/2010 and developed three chance prints and two of them were found to be unfit. On 18/11/2010, he compared the chance prints with the finger print of the accused which was obtained from Paravoor police and it was found to be comparable. Ext.P4 is the opinion given on 22/1/2011. PW6 had given the call detail records and subscriber details relating to 3 mobile numbers,. He deposed that mobile no.9895673366 was issued to Sugandhi. The identification proof is Ext.P6 and call details is Ext.P7. He had also given details of another subscriber who was one Shahul Hameed with reference to mobile No.9895961158. PW7 is the Nodal Officer of M/s Vodafone Cellular Ltd Kerala and he had given call details of mobile No.9048399843 from 15/10/2010 to 28/10/2010. The Crl.Appeal No.602/14 -:8:- number belonged to Sukumari Amma and the IME number of the handset was also given. Exts.P10 and P11 are the ID proof and the call detail records. PW8 is the Nodal Officer of BSNL. He had given details regarding mobile No.9400712078. Exts.P12 and P13 are the ID Proof and the call detail records. PW9 had recorded Ext.P14 FIS and registered the crime on 29/10/2010 at 1.30 a.m. PW10 has given FIS. He was working as Assistant Professor of M/s.TKM Engineering College. He deposed that on 28/10/2010 at 10.30 p.m, Sudheesh his friend, who is the son of Sukumari Amma called him from Dubai. Along with his friend Arun, he enquired at the hospital and thereafter proceeded to their house. Her husband and another person was there. He checked up in the nearby areas with the torch and found her dead in the firewood shed. He informed the relatives and thereafter called a Doctor. Doctor advised him to inform to the police. He deposed that there was bleeding from her mouth. A broken chain was found near her leg. She was wearing a maxie. PW11 is the husband of Sukumari Amma. His room is in the first floor and it was air conditioned and it has a heater in the bathroom. He saw Sukumari Amma at 3 pm on 28/10/2010. She told him that she was going to hospital as Crl.Appeal No.602/14 -:9:- she had knee pain. He went upstairs by about 3.30 pm and came back by around 6.00 p.m. His wife was not seen and he waited till 8.30 p.m. He enquired at the hospital and thereafter called his driver Shaji. Shaji could not locate her. He informed the matter to his elder son Suresh, who informed the matter to his brother Sudheesh. Sudheesh called PW10 who came with a friend. By about 12.30 in the night, he was informed that Sukumari Amma was murdered. He is suffering from diabetes and for the last 6 months he is blind. He deposed that his wife used to wear gold ornaments and she was having a mobile phone of Nokia make. The accused was familiar to them and one month before the incident he had come to cut down a jack tree. He also deposed that the gold ornaments and mobile phone of his wife were missing. 7. PW12 is the younger brother of Sukumari Amma. They are residing in the same compound. He identified the gold chain, locket, thali and two “ _elas_ ” of Sukumari Amma which are marked as MO2 to MO5. Her another gold chain is marked as MO6 and mobile phone as MO7. He also identified the maxie MO8 and chappals MO9 series used by Sukumari Amma. MO10 is the Crl.Appeal No.602/14 -:10:- handle of a spade. Ext.D1 is the contradiction marked through him with reference to his previous statement to the police. 8. PW13 is the daughter of Sukumari Amma. She is residing at Dubai and on getting information she reached her house on 29/10/2010. She identified MO2 to MO7 and the dress MO8. She also deposed that the rope was tied to the mango tree for drying cloth. 9. PW14 is an attestor to Ext.P16 mahazar for recovering `770/- from the accused at the time of his arrest. He is also an attestor to the mahazar Ext.P17 for recovery of mobile phone and `32,000/- from the house of accused. He is a relative of Sukumari Amma. 10. PW15 is conducting a financing company at Paravoor under the name Pranavam Finance. He deposed that on 1/11/2010, the accused approached him for pledging a locket and he informed that he required money as his brother was admitted at Royal Hospital. The locket was pledged for `10,000/-. On 3/11/2010 he released the locket saying that his brother has to be shifted to Medical College Hospital and he wanted to sell the same. PW15 along with the accused went to Harris jewellery at Crl.Appeal No.602/14 -:11:- Paravoor and sold the locket. PW15 collected the amount due to him and the balance was given to the accused. The pledge register is marked as Ext.P18 and the relevant entry is marked as Ext.P18(a). Ext.P18(a) would show that the name of the accused was written as Sivan S., Nandu Nivas and the accused had signed the same. When he came to release the pledge, he did not have the original card. It was written in a paper and the photocopy is marked as Ext.P19. PW16 is the owner of Harris Jewellery at Paravoor. He admitted that PW15 had sold one locket and he paid `15,000/-. The locket was melted and transformed into an ingot. The police had recovered the same which is produced as MO11. PW17 is an attestor to Ext.P20 mahazar by which the gold ingot was recovered by the police. 11. PW18 is an auto driver. He deposed that on 28/10/2010, the accused called him and he was asked to come to the bus stand. When he reached the bus stand he was given `200/- and was asked to buy a bottle of liquor. He purchased the same and they both proceeded to the house of accused and consumed liquor. Later while returning after a trip, he saw the accused and one Rajeev. They went to the house of the accused. Crl.Appeal No.602/14 -:12:- His wife was not there. Brother of the accused was admitted in Royal Hospital. He took the accused in his auto and he alighted at Rationkada junction. At about 5.15 p.m he saw the accused at Pozhikkara. They both proceeded to Royal Hospital, Chathannoor. When they reached the hospital, son of accused was there and he was asked to drop his son at his wife's house. He dropped him at that place. They came back at about 9.30 pm and Raju was also along with the accused. He was paid `500/- and he was asked to keep the balance. Next day, he knew about the death of Sukumari Amma. He called the accused over phone and informed about the same. He said that he had gone to her residence to cut down a tree. 12. PW19 is conducting a shop by name Panicker Stores at Paravoor Pozhikkara Rationkada junction. He is familiar with the deceased and the accused. He also does mobile recharging of Idea, Airtel, Vodafone and BSNL and the accused used to recharge his mobile phone having no.9895961158. He also deposed that accused was having a number ending '3366'. He saw the accused on 28/10/2010 between 3 p.m and 4 p.m alighting from the auto. He was told that his brother was in -:13:- Crl.Appeal No.602/14 hospital and his mobile phone was recharged. 13. PW20 has conducted post-mortem on the body of Sukumari Amma which we have already dealt with. 14. PW21 was the Doctor conducting M/s Naveen Hospital at Paravoor. At about 11 pm on 28/10/2010, two persons approached him and he was taken to the house of Sukumari Amma. She was found lying on the fire wood shed and on examination, it was found that she is already dead. Suspecting murder, he asked the relatives to inform the matter to the police. There was some injuries on her face as well as neck. Ext.D2 is the contradiction marked during his evidence. 15. PW22 was the Bank Manager of M/s Muthoot Mercantile Ltd at Kottiyam. He deposed that on 29/10/2010, the accused had come for pledging gold ornaments. The gold chain pledged by him was recovered by the police on 10/11/2010. The gold was pledged in the name of one Rajeev. Ext.P22 is the pawn ticket in which the accused had signed. PW23 is the Branch Manager of Muthoot Mercantile Ltd who identified Ext.P23 pledge book from 2007 to 30/6/2011. Page No.320 is with reference to pledging of gold chain in the name of Rajeev S., and the relevant Crl.Appeal No.602/14 -:14:- entry is Ext.P23(a). Police had recovered the chain from the bank. 16. PW24 conducted the inquest. He had also conducted investigation by questioning witnesses. On enquiry it was found that the mobile phone of the deceased was missing. The number was 9400712078 and the IME number of the phone was 3563970296650. The mobile phone was seized as per Ext.P3 mahazar. He further deposed that it was revealed that the number used in the Nokia phone which was used by Sukumari Amma was used with another SIM having number 9895693366. The said number was used by the wife of the accused and the accused was using the number 9895961158. On 9/11/2010, the accused was called to the police station and he was questioned after showing the call details and tower location and according to PW24, he was arrested at 9 p.m and his confession statement was recorded. Ext.P25 was filed incorporating offence u/s 302, 397 and 201 of I.P.C. 17. PW25 was the Circle Inspector of Police, Paravoor from 7/10/2010 to 3/2/2011. He took over the investigation and prepared Ext.P1 scene mahazar. He seized MO10 handle of the spade and MO1 plastic rope as per Exts.P21 and P2 mahazars Crl.Appeal No.602/14 -:15:- respectively. On the basis of the confession statement of the accused as Ext.P2(a), the plastic rope was recovered as per Ext.P2 mahazar. On the basis of confession statement Ext.P17(a), `23,000/- was seized from the almirah, `9,000/- which was buried under a heap of sand was recovered and a mobile phone MO12 was recovered from the almirah. The dress of the accused was also seized as per Ext.P17 and marked as MO13. Further, based on his confession statement, MO6 gold chain was recovered as per Ext.P13 mahazar. Subsequently based on his confession statement Ext.P20(a), the gold ingot MO11 was recovered as per Ext.P20 mahazar. 18. PW26 is the Special Village Officer, Kottapuram who prepared Ext.P36 plan. 19. The first question to be considered in the case is whether the death of the victim was on account of strangulation or is it a suicide as contended by the defence. 20. PW20 is the Doctor who conducted the post-mortem. In his evidence, it was noticed that there were two multiple small abrasions on the forehead and left temple. A few abrasions were also seen on other parts of the neck, right elbow, right forearm, Crl.Appeal No.602/14 -:16:- right wrist and a few other contusions. He opined that superior horns of thyroid cartilage on both sides were seen fractured with infiltration of blood around in the upper part of sterno thyroid and thyro hyoid muscles on both sides. The hyoid bone, cricoid cartilage and other mid line structures of neck including soft tissues and bones were normal and intact. His finding was that injury Nos.6 and 7 independently can cause the death. Injury 6 and 7 were ligature marks. When he was shown MO1, his answer was “ഈ കയർ രണണയയ മടകയ പറകയൽ നയനന പപണകയയണൽ മരണന ഉണണകണനi” which means, if the chord is folded into two and the victim is pulled from behind, death could be caused. He also deposed that he was questioned by the police earlier and he had furnished only certain possibilities. Later he had given a definite statement. The first statement was given before the Sub Inspector of Police, Paravoor. He deposed that in a typical hanging, injury Nos.6 and 7 are not possible. To a specific question that in elder people there is more chance for breakage of thyroid cartilage, his answer was that only when force is applied, there is possibility of breakage of thyroid bones. He further stated that in a case of hanging, there is chance of breakage of superior bones but it need not happen in Crl.Appeal No.602/14 -:17:- all cases. If force is applied at the centre part of the thyroid, there is chance of breakage of thyroid cartilage. It depends upon force, direction and nature of cartilage. He also stated that there was signs of violence. Once constriction of neck is applied, the upper limb will be powerless. He further deposed that in strangulation, violence will be more pronounced like lividity of face, subarachnoid hemorrhage and hemorrhage in the scalp. In exceptional cases, some of the signs will be there. The injures on the neck was the possibility of strangulation. He categorically deposed that injury Nos.6 and 7 are not possible in the case of hanging. 21. Ext.P24 is the inquest report and in Ext.P21 postmortem certificate, the opinion of the Doctor was that death was due to constriction force on the neck. Apparently what was the reason for the constriction was not ruled out by the Doctor but after investigation, and apparently after the arrest of the accused, the Doctor seems to have given a statement that the death was on account of strangulation. There cannot be any dispute about the fact that death was due to asphyxia since abrasions were noticed on the front neck in the middle and Crl.Appeal No.602/14 -:18:- horizontal on the front and sides of the neck in the middle 5 cm above top of breast bone. In the case of suicide by hanging necessarily the ligature should be on the body of the person. Though the learned counsel for the appellant had placed before us various authorities to prove that it might be a case of suicide, the same can be ruled out for the simple reason that in Ext.P24 inquest, no reference had been made to any ligature found on the body of the victim. Therefore, we can easily infer that strangulation had been committed by another person and ligature used for strangulation was taken away by the assailant himself. The fact that the ligature was not found in the body of the deceased itself is enough to arrive at a conclusion that it is not a case of suicide and is a homicide. It is relevant to note that when the accused was arrested based on his confession statement, the ligature was recovered as per Ext.P2 mahazar, which is proved by PW2. The chord was recovered from a compound near the place of occurrence on the basis of confession statement of the accused. MO1 is the said plastic rope which was taken from the compound of the deceased as it was used as cloth chord. PW12 younger brother of Sukumari Crl.Appeal No.602/14 -:19:- Amma and PW13 daughter of Sukumari Amma identified MO1 rope which was tied to their mango tree for drying clothes. 22. The other question to be considered is regarding the involvement of the accused. The police during investigation found out a chance finger print and it was compared with the finger print of the accused and PW5 found similarity in the finger print. His opinion is Ext.P4. One contention urged by the learned counsel for the appellant is that there is no material to prove how the finger print of the accused was taken. A reference has to be made to the evidence of PW5 and Ext.P4 report. He deposed that he had examined the scene of occurrence and had developed three chance finger prints of which two were unfit. On 18/11/2010, he got the finger print of accused Sivanandan @ Sivan, S/o Sasidharan from the Paravoor Police Station and it was found to be comparable with chance finger print. In crossexamination, he stated that he had not taken the finger print of the accused and he does not know as to who had taken it. In cross-examination he stated that the chance finger print was taken from the almirah and the fridge handle. We do not think that the contention urged by the accused in this regard can be Crl.Appeal No.602/14 -:20:- sustained. When an accused is arrested, his finger prints are taken in the usual course by the police and therefore the manner in which finger prints are taken may not render much relevance. 23. The learned counsel for the appellant placed reliance upon a judgment of the Apex Court in _**Mohd. Aman v. State of Rajasthan**_ [(1997) 10 SCC 44]. That was a case in which the chance finger print of the accused was taken 10 days after the search by the police and while the accused was in custody. In fact, that is not the situation here. The point involved is whether the finger print of the accused ought to have been taken in the presence of the Magistrate as provided u/s 5 of the Identification of Prisoners Act. In the judgment, the Apex Court had only observed that though u/s 4 of the Act, the police is competent to take finger prints of the accused, but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence, it was desirable that they were taken before or under the order of a Magistrate. This principle as it is, cannot be applied to the factual circumstances in the present case. In the case on hand, the chance finger prints were taken on 29/10/2010 itself and PW5 could not locate the chance finger prints with the Crl.Appeal No.602/14 -:21:- available data base. Only when the accused was arrested and his finger prints were sent from the police station that it matched with the chance finger prints. There is no reason to discard the aforesaid evidence which apparently proves the presence of the accused in the house of the deceased. The accused apparently is not a stranger. He had been to the house of the deceased for cutting down trees, but he does not have a case that he had entered the house of the deceased for any purpose. So the presence of the accused inside the house of the deceased is a vital circumstance against him unless it is validly explained, and there is absolutely no explanation. 24. Yet another circumstance which had been proved by the prosecution is the recovery of gold articles belonging to the deceased. A locket which was pledged by the accused had been converted into an ingot. A gold chain belonging to the deceased was pledged and recovered by the police. The argument raised by the learned counsel for the appellant is that none of these materials had been pledged by the accused and he had only been framed in the manner. As far as the pledging of the locket is concerned, it is proved by PW15. But, in the register, the name Crl.Appeal No.602/14 -:22:- of the accused is not written. His name is written name as Sivan S., Nandu Nivas. The pledge register is Ext.P18 and the entry is Ext.P18(a) in which the accused had also signed. PW15 further deposed that after pledging the locket on 1/11/2010, he came back on 3/11/2010 and wanted to release the pledge and sell the gold. PW15 along with the accused went to the shop of PW16 and sold the locket for `15,000/-. PW15 received his money and the balance was given to the accused. PW15 and PW16 identified the accused. But in the meantime, the locket was melted and transformed into an ingot. But it is relevant to note that it was based on the confession statement of the accused that the police had gone to Pravanam Finance, collected the particulars and went to Harris Jewellery and had collected the documents. He does not have a case that the locket belonged to him and there is no valid explanation for the possession of a locket. 25. That apart, evidence of PW22 and PW23 proves pledging of MO6 gold chain which belongs to the deceased. In the register maintained by PW23, the name is written as Rajeev S. Learned counsel argued that it is not in the name of the accused and therefore accused cannot be connected with recovery of gold Crl.Appeal No.602/14 -:23:- chain. Two things are relevant. One is that accused had confessed that he had pledged the gold chain at Muthoot Mercantile Ltd. Secondly Rajeev is the name of his friend as spoken to by PW18. PW23 however says that he does not know the person who had pledged the article. But PW22 who was the then Manager stated that he knew the accused who had come to pledge MO6 gold chain. The clerk had brought the accused to his chamber stating that it is a hospital case. He did not have an ID proof and the money was urgent. He gave the name as Rajeev and signed on the pawn ticket. The pawn ticket is Ext.P22. The pledge was for `15,000/-. He had signed as Rajeev. As far as the evidence of PW22 is concerned, he had seen the accused in his chamber. He identified him and he categorically stated that he had given the name as Rajeev. There is no reason to disbelieve his version. 26. Yet another circumstance relied upon by the prosecution is the recovery of MO4 mobile phone. Sukumari Amma was using a BSNL Mobile 9400712078. Ext.P12 is the ID proof and the call detail records from 28/10/2010 to 9/11/2010 is Ext.P13. The SIM was used last on 31/10/2010 and the IME number of the handset was 35520603338689. Another IME Crl.Appeal No.602/14 -:24:- number was also used on 31/10/2010 with the same number as 35825703897293. Evidence of PW6 would show that SIM card with No.9895673366 was issued to one Sugandhi, PW3 who is the wife of the accused. Ext.P6 is the ID proof and the call detail records are Ext.P7 series. It could be seen that from 4/11/2010 from 1.15 p.m. onwards, SIM No.9895673366 was used in handset number ending 6650 which apparently belonged to the deceased. Therefore PW3 was in possession of the said mobile until 8/11/2010. The mobile phone MO7 was recovered as per Ext.P17 mahazar based on Ext.P17(a) confession statement of the accused. The defence has a case that the police had attempted to fabricate evidence as the accused was taken into custody on 4/11/2010 itself and several calls were being made from the said phone. 27. The mobile No.9895961158 is issued in the name of one Shahul Hameed. PW18 deposed that the accused used to call him from the said number. PW19 has also stated that the accused used to recharge his mobile phone having the said number which apparently shows that the accused was using the mobile number of Shahul Hameed. The number 9895961158 is Crl.Appeal No.602/14 -:25:- seen used in IME number 3563970296650 which is MO7 that belonged to the deceased as evident from Ext.P9 series. Therefore, it is evident that mobile numbers 9895961158 and 9895673366 were used in the handset, MO7. Yet another contention urged by the learned counsel for the appellant is regarding the disparity in the last digit of the IME number. The above antiquity had been clarified by PW6, PW7 and PW8. According to them, the first 14 digits is enough for identifying the handset and the 15[th] digit is not part of IME number. There is no reason to disbelieve their version as they are independent witnesses and has no grudge against the accused. They are all competent persons to speak about the technicalities involved in the materials produced before them. Therefore, it is apparent from the aforesaid details that the accused was in possession of the mobile phone and SIM card of Sukumari Amma as on 29/10/2010 immediately on the next day of the incident. The mobile phone belonging to the accused is MO14 which was seized as per Ext.P34 mahazar. It is also evident that the number belonging to PW3 Sugandhi and the number used by the accused in the name of Shahul Hameed were used in MO14 G-Five mobile Crl.Appeal No.602/14 -:26:- handset. 28. All these facts unerringly points out to the circumstance regarding the complicity of the accused. Learned counsel for the appellant and the learned Public Prosecutor placed reliance upon several judgments. It is needless to state that each case depends upon its own facts. In _**Bhagwan Dass v. State of Haryana**_ (AIR 1996 SC 2928), the Apex Court held that the medical evidence did not indicate that the victim died during the night at about 2.00 a.m. and there were other missing links in the chain of circumstances. The counsel for the appellant wants to emphasise on the fact that if the Doctor conducting postmortem is unable to state the actual time of death, and the evidence is lacking in that regard, main circumstance in the case stands disproved. But in the case on hand, it is relevant to note that PW11 husband of the deceased had gone to his bedroom in the first floor at 3.30 p.m and his wife, the victim had informed that she will be going to the hospital. PW11 is a blind person. He came down only at 6.00 pm and waited till 8.30 p.m. He called an associate of his. They could not locate the victim. He therefore called his children who are abroad and on that basis Crl.Appeal No.602/14 -:27:- PW10 came to the house and started searching and the victim was found dead. Apparently the death had happened in between 3.30 p.m and 6.00 p.m. and according to the prosecution in between 4.00 p.m and 4.30 p.m. PW20, the Doctor who conducted post-mortem had opined that the death would have occurred 6 to 18 hours prior to post-mortem. The post-mortem was conducted on 29/10/2010 at 2.00 p.m and concluded at 3.30 p.m. But in Ext.P21, no such opinion was expressed by the Doctor and an opinion was expressed during cross-examination regarding the time of death. We do not think that the above discrepancy may affect the prosecution case in any manner. Of course, the learned counsel had relied upon a judgment of the Patna High Court in _**Indradeo Rai and Others v. State of Bihar**_ (1992 KHC 1767). In that case, a Division Bench held that the opinion given by the Doctor who conducted post-mortem will not help the prosecution case regarding the time of death as the presence of rigor mortis on the upper limbs of the deceased indicated that the deceased was done to death at about 9.00 a.m on the day when the post-mortem was held. But the time of death of the victim assumes importance in a case depending Crl.Appeal No.602/14 -:28:- upon the factual circumstances arising therefrom. In the present case, which clings on circumstantial evidence, what is to be considered is whether all the circumstances which are proved beyond reasonable doubt points to the guilt of the accused without any other hypothesis. Undoubtedly this is a case in which the circumstances involved in the case prove the presence of the accused in the house of the victim as his thumb impression was found inside their house for which he has no explanation and the belongings of the victim were robbed by the accused which were later recovered based on his statement u/s 27 of the Evidence Act. In _**Digambar Gope v. State of West Bengal**_ (1997 KHC 3016), a Division Bench of the Calcutta High Court had occasion to consider the post-mortem report which states that the death might be due to homicide or suicide. That was a case in which the dead body was found hanging by neck using rope and several features of suicide was found. The Division Bench granted benefit of doubt to the accused. We have already considered the above contention. This is a case in which the ligature was recovered from another compound which indicates that it is not a case of suicide. Nothing else is required to prove the fact that the death Crl.Appeal No.602/14 -:29:- was on account of homicide. The judgment of Division Bench of this Court in _**Mohammad Dwara Rawther Ismail v. State of Kerala**_ (1982 KHC 292) also has no application to the facts of the present case. That was a case in which the body was found hanging and in that case it was found that the post-mortem certificate does not rule out the possibility of death by suicide. That was a case in which the Doctor opined that the signs of constriction around the neck was found as suicide as well as homicide. This judgment will not apply to the facts of the case. In _**Santosh Singh v. State of M.P.**_ (2011 KHC 6210), the ligature mark was oblique and it was on the high up in the neck between the chin and larynx and it was also non continuous. It was observed by the Division Bench of Chhattisgarh High Court that prosecution could not establish beyond all reasonable doubt that it was a case of homicidal death as a possibility of suicidal death cannot be ruled out. That was also case where the dead body was found in a hanging condition in the verandah. The said judgment cannot be applied to the facts of the case. 29. There is no reason to make any other inference in the case as the circumstances proved in the case, beyond all Crl.Appeal No.602/14 -:30:- reasonable doubt, disclose that the death of the victim had occurred in the manner as claimed by the prosecution. 30. In the said circumstances, the Court below was justified in convicting the accused and the sentence is commensurate with the nature of crime. Appeal is hence dismissed. **Sd/-** Rp //True Copy// PS to Judge **A.M.SHAFFIQUE JUDGE Sd/ASHOK MENON JUDGE**