State of Kerala v. Sabhapathy, Sekhar, Selvam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **CRL.A.No.773 OF 2015** **AGAINST THE JUDGMENT IN SC 559/2013 DATED 30-10-2014 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM** **C.P.NO.4/2013 OF ADDL.JFCM, ERNAKULAM** **CRIME NO.1481/2012 OF PANANGAD POLICE STATION , ERNAKULAM** ## **APPELLANT/ACCUSED NO.3:** **SEKHAR AGED 30 YEARS S/O.SABHANAYAKAM, KANTTANDIKUPPAM DESOM, MERK THREUVU, KADAMPULIYOOR PO, PANDURUTTY TALUK, KADALOOR DIST. THAMILNADU** **BY ADV. SRI.M.J.SANTHOSH RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY CIRCLE INSPECTOR OFFICER, E.T SOUTH POLICE STATION, THROUGH PUBLICL PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **SRI.S.U. NAZAR-SR. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1706-2019, ALONG WITH CRL.A.1117/2015, CRL.A.882/2015, CRL.A.77/2017, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.773/15 & conn.cases -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941 CRL.A.No.1117 OF 2015** **AGAINST THE JUDGMENT IN SC 559/2013 DATED 30-10-2014 OF II ADDITIONAL SESSIONS COURT,ERNAKULAM** **CP 4/2013 OF ADDL.JFCM, ERNAKULAM** **CRIME NO.1481/2012 OF PANANGAD POLICE STATION , ERNAKULAM** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, ERNAKULAM SOUTH.** **BY SR. PUBLIC PROSECUTOR SRI. S.U NAZAR** ## **RESPONDENT/ACCUSED 2 & 4:** **1 EZHIL RAJA S/O.CHAKRAVARTHY, HOUSE NO.370, KATTANDIKUPPAM EAST STREET, KADAMPOLIYOOR PO, PANDURUTTY TALUK, KADALOOR DISTRICT, TAMIL NADU.607103** Crl.Appeal No.773/15 & conn.cases -:3:- **2 THANKAMONY S/O.RAJAGOPAL, KATTANDIKUPPAM DESOM, MERK THERUVU, KADAMPOLIYOOR PO, PANDURUTTY TALUK, KADALOOR DISTRICT, TAMIL NADU.607103** **R1 BY ADV. SRI.RAHUL SHENOY R1 BY ADV. SRI.RAVI KRISHNAN R1 BY ADV. SRI.S.SREENATH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1706-2019, ALONG WITH CRL.A.773/2015, CRL.A.882/2015, CRL.A.77/2017, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.773/15 & conn.cases ## -:4:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **CRL.A.No.882 OF 2015** **AGAINST THE JUDGMENT IN SC 559/2013 DATED 30-10-2014 OF II ADDITIONAL SESSIONS COURT,ERNAKULAM** **CP 4/2013 OF ADDL.JFCM, ERNAKULAM CRIME NO.1481/2012 OF PANANGAD POLICE STATION , ERNAKULAM** ## **APPELLANT/ACCUSED NO.5:** ## **SELVAM** **S/O.EZHUMALAI, KAATTANDIKUPPAN ROAD, MERK THERUVU, KADAMPOLIYOOR P.O., PANDURUTTY TALUK, KADALOOR DISTRICT, TAMILNADU, C.NO.2070, CENTRAL PRISON, VIYOOR.** **BY ADV. SRI.LAVARAJ M.G.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682 031.** **BY SR. PUBLIC PROSECUTOR SRI. S.U. NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1706-2019, ALONG WITH CRL.A.1117/2015, CRL.A.773/2015, CRL.A.77/2017, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.773/15 & conn.cases ## -:5:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **CRL.A.No.77 OF 2017** **AGAINST THE JUDGMENT IN SC 559/2013 DATED 30-10-2014 OF II ADDITIONAL SESSIONS COURT,ERNAKULAM** **CP 4/2013 OF ADDL.JFCM, ERNAKULAM CRIME NO.1481/2012 OF PANANGAD POLICE STATION , ERNAKULAM** ## **APPELLANT/ACCUSED NO.1:** **SABHAPATHY AGED 32 YEARS S/O.VENU, KANTTANDIKUPPAM DESOM, MERK THREUVU, KADAMPOLIYOOR PO, PANDURUTTY TALUK, KADALOOR DIST., THAMILNADU** **BY ADV. SRI.M.J.SANTHOSH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OFFICER, E.T. SOUTH POLICE STATION, THROUGH GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM** ## **BY SR.P.P. SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1706-2019, ALONG WITH CRL.A.1117/2015, CRL.A.773/2015, CRL.A.882/2015, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.773/15 & conn.cases -:6:- ## **J U D G M E N T** **[ CRL.A.773/2015, CRL.A.1117/2015, CRL.A.882/2015, CRL.A.77/2017 ]** ## _**Shaffique, J.**_ These appeals relates to the challenge made against judgment dated 30/10/2014 in SC No.559/2013 of the Additional District and Sessions Judge-II, Ernakulam. 2. Crl.Appeal No.77/17 has been filed by the first accused, Crl.Appeal No.773/15 by the third accused and Crl.Appeal No.882/15 by the 5[th] accused. State has also preferred Crl.Appeal No.1117/2015 challenging the acquittal of accused 2 and 4. 3. Sri.Bose, who was a Security Guard in the house of PW19 was found dead by PW1, his grandson during morning hours on 30/10/2012. Bose was working as a Security Guard in building bearing No.VIII/341, Sankar Nagar Housing Colony near Maradu, Ernakulam. His normal working hours starts at 5.00 p.m Crl.Appeal No.773/15 & conn.cases -:7:- and he remains on duty till 6 a.m the next day. He was employed by PW11 Reghu, who is the owner of KVR Securities. According to PW1, Bose used to come back home in the morning and since he did not come home in the morning on 30/10/2012, as requested by his grandmother, PW1 and his grandmother came to the said house in his motor cycle, where his grandfather was the security guard. The gate was closed and there was no response from the mobile phone of Bose. The gate was under lock and key. He jumped the gate. He noticed that the northern door of the house was broken open. He did not see Bose inside the house. When he came out, he saw Bose lying on a cot on the northern side verandah. The legs and hands of Bose were tied together with plastic rope. PW1 noticed that Bose was dead. He therefore proceeded to Panangad Police Station and gave Ext.P1 FIS. Same was recorded by PW10, the Sub Inspector of Police and Ext.P7 FIR was registered. 4. PW10 came to the scene of occurrence. PW9, the Scientific Assistant attached to DCRB Kochi city and PW22, Pradeep Kumar from the Finger Print Bureau came to the scene Crl.Appeal No.773/15 & conn.cases -:8:- of occurrence on getting information from the Circle Inspector of Police, Kochi City South. They reached the scene of occurrence at about 11 am on 30/10/2012. PW25 the investigating officer also reached the scene of occurrence. The dead body was examined and they prepared Ext.P2 inquest report. PW2 is a witness to the inquest and he has attested the report. PW3 is the son of Bose who also identified the victim. He also identified the material objects belonging to the victim which were MO1 to MO3, 5, 7 to 11, 13 and 16. The legs of Bose were tied using MO6 piece of cloth and hands were tied with a plastic rope MO4. The body of Bose was sent for post-mortem which is conducted by PW7 Dr.Syriac Job, who was the Additional Professor and Deputy Police Surgeon in the Government T.D. Medical college. He noticed the following ante-mortem injuries. _“1. Abrasion 1.3x0.8 cm top of head 1 cm outer to midline 9.5 cm above eyebrow, right side._ _2. Abrasion 0.4x0.4 cm right forehead 2 cm above outer end of eyebrow._ _3. Abrasion 0.5x0.4 cm on right forehead 3mm inner to injury No.2._ _4. Abrasion 1.8x0.4 cm right side of face oblique_ Crl.Appeal No.773/15 & conn.cases -:9:- _lower outer end 1.5 cm above angle of mouth._ _5. Abrasion 1.5x0.5 cm right side of face horizontal 1 cm below outer end of injury No.4._ _6. Multiple abrasions 1x0.1 to 0.3x0.2 cm right side of face just inner to injury No.4 and 5 over an area 6x3 cm._ _7. Multiple spotted abrasions 3x0.4 cm upper lip just below nostril right side._ _8. Multiple abrasions over an area 3x1 cm upper lip just above lip border 1 cm outer to midline, right side._ _9. Abrasions 1x0.5cm left side of lower jaw 0.5 cm outer to midline 1.5 cm below lip border._ _10. Internal contusion 4x3 cm upper lip, both sides, full thickness._ _11. Lacerated wound 0.3x0.2 cm right side of lower lip 1 cm right to midline with contusion whole of lower lip full thickness. The outer lower margins of right upper central incisor was sharper”._ PW7 opined that Bose died due to smothering. He also opined that injury Nos. 4 to 10 are typical consequence of applying force on the face. MO5 was the towel which was used for smothering. Ext.P44 report from the FSL proves that MO5 was stained with human blood. At any rate, it is rather clear from the scientific evidence that Bose died due to smothering and it is a homicide. 5. The question is, as to who committed the same. The Crl.Appeal No.773/15 & conn.cases -:10:- investigating officer found that the building belonged to PW19 Smt.Radha Vaidhyanathan, who was the wife of Senior Counsel Sri.Vaidhyanathan. Ext.P3 is the scene mahazar prepared wherein it was found that the door was destructed. Pieces of laterite stone were also taken note of in Ext.P3. PW4 is an attestor to Ext.P3. 6. PW20 is the brother of PW19. PW19 came to the scene on 4/11/2012 and on verification, she found that two gold chains weighing 1½ sovereigns each and a bangle weighing 1 sovereign and `1,10,000/- were lost. The matter was informed by PW19 to the police on 4/11/2012. Further investigation revealed that accused Nos. 1 to 5 had come to the nearby place on 29/10/2012 and was involved in the burglary during which time, they committed murder of Bose. Accused Nos.1, 3, 4 and 5 were arrested on 4/12/2012. On the basis of the confession statement of first accused, MO23 gold bangle was recovered as per Ext.P20 mahazar. It was seized from a hole in the wall on the eastern side of the house of first accused in Kadaloor District, Tamil Nadu. Ext.P20(a) is the statement that led to the recovery of MO23. The Crl.Appeal No.773/15 & conn.cases ## -:11:- prosecution also obtained the finger prints of accused 1, 3 and 5 from the scene of crime and when compared with the finger prints of the said accused, those matched. The investigation also revealed that accused Nos. 1 to 5 were in and around the scene of occurrence on 29/10/2012 by around 5.30 p.m, and until 3.30 a.m on 30/10/2012. After considering the circumstances that the accused persons were very much available in the locality during the relevant time and having found that the finger prints of accused, 1, 3 and 5 matched with their finger prints and recovery of MO23 on the basis of confession statement of A1 were the circumstances which were proved by the prosecution and taken note of by the trial Court to convict accused 1, 3 and 5. The 2[nd] and 4[th] accused were found, not guilty, as the prosecution was unable to prove that they entered the building compound. 7. Learned counsel for the appellants argued that, when this is a case which rests on circumstantial evidence, the prosecution was unable to prove any of the circumstances beyond reasonable doubt. Learned counsel submits that the oral testimony of witnesses who is alleged to have seen the accused Crl.Appeal No.773/15 & conn.cases -:12:- in the locality or in nearby places by itself cannot be proof enough to indicate that accused had committed burglary in the scene of occurrence and for that reason, commission of murder. The only other material relied upon by the prosecution was the finger prints of accused 1, 3 and 5. The argument is that the specimen finger prints of the accused were not taken in the presence of Magistrate as contemplated under the Identification of Prisoners Act, 1920. 8. Counsel for appellant placed reliance upon judgment of the Delhi High Court in _**Suresh v. State (NCT) of Delhi**_ (2010 KHC 7604), judgment of the Rajasthan High Court in _**Mahaveer Prasad v. State of Rajasthan**_ (2018 KHC 4115), and the Apex Court judgment in _**Prakash v. State of Karnataka**_ [(2014) 12 ) SCC 133]. The Apex Court in _**Prakash**_ (supra) placed reliance on an earlier judgment in _**Mohammed Aman v. State of Rajasthan**_ [(1997) 10 SCC 44] and observed that there is a possibility of the police fabricating evidence and it is to avoid such an allegation that it is desirable that specimen finger prints are taken under orders of a Magistrate. Placing reliance on the Crl.Appeal No.773/15 & conn.cases -:13:- judgment in _**Mahmood v. State of U.P.**_ [(1976) 1 SCC 542] it was also argued that the conviction based on a solitary circumstance namely the finger prints of the accused near the dead body at the scene of occurrence by itself cannot be a reason for conviction. 9. On the other hand, learned Senior Public Prosecutor Sri.S.U.Nazar while submitted that sufficient evidence has been adduced to implicate the accused. It is argued that accused 2 and 4 also were members of the very same gang and were liable to be convicted. He sought to confirm the judgment and also to convict the other accused as well. It is contended that the entire circumstances which had been proved in the case clearly points to the guilt of the accused and there is no reason why the accused should be left free. It is argued that when the circumstances proved in the case are clinching enough to convict the accused, there is no reason to interfere with the judgment. That apart, the accused are involved in burglary. Under such circumstances, it would only be appropriate to convict all the accused in the case. He also relied upon a Division Bench Crl.Appeal No.773/15 & conn.cases -:14:- judgment of this Court in _**Babu v. State of Kerala**_ (2015 KHC 7029) wherein it has been held that the chain of circumstances is a flexible and elastic one and can never be mechanically rigid. The conclusiveness of the circumstances is what that matters, and not the number of links. There could even be cases where the chain of circumstance may be complete with two or three links. Reference is also made to the judgment in _**Gulab Chand v. State of M.P.**_ [(1995) 3 SCC 574] wherein it is held that when stolen articles are recovered on the basis of confession statement of the accused, no inference can be drawn that the said person is guilty of the offence of murder and robbery, but the culpability for the said offences will depend on the facts and circumstances of each case. If it is found that the murder and robbery have been proved to have been integral parts of the same transaction, a presumption will arise under Illustration (a) of S.114 of Evidence Act, that the accused had committed the murder of deceased and had also committed robbery of the ornaments. In _**Palan v. State**_ (1973 KLT 886), this Court also held that in cases where robbery and murder are so connected as to form part of the same Crl.Appeal No.773/15 & conn.cases -:15:- transaction, the unexplained possession of the stolen property will not only be presumptive evidence against the accused on the charge of robbery, but also on the charge of murder. 10. Having regard to the respective contentions urged, it is appropriate to analyse the evidence in order to ascertain whether the trial Court had committed any error in convicting accused 1, 3 and 5 and acquitting accused 2 and 4. 11. The identity of Bose or the cause of death that it was a homicide cannot be disputed. From Ext.P2 inquest and from the evidence of PW7, it is rather clear that Bose died on account of external influence, that is smothering. Several abrasions were found on his face and as per Ext.P4 proved by PW7, he had opined that smothering could have been done by MO5 towel which was dirty and bloodstained. He also opined that the victim had multiple patechial hemorrhages on the top of both chest. The involvement of the accused in the murder and robbery is the only question to be considered in this case. 12. There is no dispute about the fact that the case rests only on circumstantial evidence. The prosecution has been able Crl.Appeal No.773/15 & conn.cases ## -:16:- to establish that the accused persons were in and around the city and nearby the scene of occurrence between 5.30 p.m on 29/10/2012 and 3.30 a.m on 30/10/2012. The case of the defence is that those witnesses have been put up by the police and are planted and even otherwise, presence of accused in the locality by itself does not prove anything. Evidence of PW5, PW12, PW13, PW17 and PW21 are relevant in this regard. 13. PW5 is a conductor of Sree Murugan bus running in Vyttila-Thammanan route. He deposed that MO17 ticket were sold on 29/10/2012 from the 4[th] bundle. It was between 12 noon and 1.00 p.m. MO17 tickets were recovered from the scene of crime by PW25 while preparing scene mahazar. But there is no evidence to indicate as to whether it was the accused who had purchased the said bus tickets. 14. PW12 is a salesman of Kannadikkadu toddy shop bearing T.S.No.3. His duty is from 9 a.m to 9 p.m. He heard about the death of a Security Guard in a house at Sankar Nagar on 30/10/2012. He knew Bose who used to come to their shop for consuming toddy. He further deposed that on 29/10/2012, by Crl.Appeal No.773/15 & conn.cases -:17:- about 5.30-6.00 p.m., unusually 5 tamilians came to the toddy shop and PW13 Rajesh had given them toddy. He specifically noticed them and he had identified accused 1 to 5. 15. PW13 is Rajesh, another salesman of toddy shop bearing T.S.No.3 at Kannadikkadu. He deposed that he heard about a robbery and death of security guard in the house at Sankar Nagar on 30/10/2012. He had gone to that place by noon. Bose is the security guard who used to come and have toddy from his shop. He used to come by about 4.00 p.m. The house where the murder happened belongs to a lawyer practicing in Supreme Court. He deposed that normally local Malayalees used to come for consuming toddy. On 29/10/2012 after 5.30 p.m. five Tamilians came to the toddy shop. They were wearing pants and he was seeing them for the first time. They sat in the toddy shop for two hours and had 4 bottles and 2 tapioca (plates). He identified accused 1 to 5 in the box. After one month, police brought four of them - accused 1, 3, 4 and 5. He identified them. Later the police called him on another occasion and he identified the 2[nd] accused also. He further identified MO19 the shirt which Crl.Appeal No.773/15 & conn.cases -:18:- Sabhapathy (A1) was wearing and the pants MO20. The accused consumed toddy but they did not have tapioca as they complained about it. Though he was cross-examined at length, there was no omission or contradiction in his evidence. 16. PW17 is an autorickshaw driver normally using the auto stand at Vyttila mobility hub during 2012. He has his own autorickshaw. He knew about the death of a Security in a house at Maradu. On the previous day on 29/10/2012 by about 5.00 p.m, five tamilians got into his autorickshaw from the mobility hub and he dropped them at Kannadikkadu Toddy shop. He took `50/- as there were five persons. He dropped them by about 5.30 p.m at the toddy shop. They were wearing pants and shirt. He could identify them. He also stated that on 11/12/2012, he had identified four persons in the police station. He identifies those four persons as A1, A3, A4 and A5. He identified the 2[nd] accused on 21/12/2012 at the police station. 17. PW21 is an autorickshaw driver. He also uses Vyttila mobility hub as his auto stand. Normally, he runs his auto from 7.00 p.m until 5 to 6 next morning. He heard about the death of a Crl.Appeal No.773/15 & conn.cases -:19:- Security Guard near Maradu. He heard about the incident from the police officer at the aid post. That was on 30/10/2012. On 29/10/2012, by night around 12, he had gone for a trip to Kundannoor. At 3.00 a.m, he had gone to Kumbalam for a trip. It was near Kumbalam toll junction. After dropping a person, he was coming through the bye-pass. When he reached near Kannadikkadu, 5 persons asked him to stop the auto. He stopped his autorickshaw. They asked him to drop them at South Railway station and he dropped them there. He got `200/-. According to him, the time they boarded his auto was by around 3.30 a.m. They were wearing pants and shirt and they were talking in Tamil, in a low voice as if it is a secret. He said he could identify all the persons as he noticed them when they got out of the auto. 18. Though these witnesses were cross-examined at length, nothing has been brought out to discredit those witnesses. Therefore, from the evidence of PW12, 13, 17 and 21 who had identified the accused before Court, it is clear that the accused were in and around the toddy shop at Kannadikadavu between 5.30 p.m and 3.30 a.m. The Kannadikkadu toddy shop is Crl.Appeal No.773/15 & conn.cases -:20:- very near the scene of occurrence. To that extent, their evidence is relevant. Then the question is whether the accused have actually committed the robbery and murder. 19. The presence of the accused in the house of PW19 is proved only by the finger prints obtained from the scene of occurrence by PW22. PW22 has deposed that he was the Fingerprint Inspector in the Finger Print Bureau of Kochi city during 2012. On the request of Kochi City South Circle Inspector, he visited the house of Adv.C.S.Vydhyanathan at Kannadikkadu, Maradu at 11.00 a.m. with reference to crime No.1481/12 of Panangad Police Station. One person was lying dead. Door was broke open. The almirahs inside were also damaged and broken. He had sent the finger print team and developed the finger prints. The doors, almirahs, the door frames etc were verified and finger prints were developed. Police photographer Anil Kumar took photos. On 4/12/2012, the police had sent to him the finger prints of A1, A3, A4 and A5. He developed those finger prints and compared it with the finger prints in the scene of crime. He could locate the right ring finger print of first accused from the scene of Crl.Appeal No.773/15 & conn.cases -:21:- crime which was obtained from the wooden door which matched with the finger print of first accused. The finger print matched in respect of 8 characteristics and therefore he finalised that it belongs to one person. Ext.P17 is his report. The finger prints and photographs are produced as Exts.P17(a) and (b). The specimen finger print of A5 was also received from the police station. It was compared with the chance finger prints and the finger print obtained from the steel almirah especially the right little finger impression matched with that of A5, in 8 characteristics. The report is Ext.P18 and Exts.P18(a) and (b) are the photographs of the chance finger print and the specimen. Similarly, he could compare and match the finger prints of A3's right middle finger impression which was found from the bed room door frame. Ext.P19 is the said report and Exts.P19(a) and P19(b) are the photographs. In cross-examination, it is stated that he obtained 9 chance prints from the crime spot. 20. The main argument raised by the learned counsel for appellants is based on the fact that the finger prints of the accused were not taken in the presence of a Magistrate as Crl.Appeal No.773/15 & conn.cases -:22:- provided under Identification of Prisoners Act and therefore the reports Exts.P17, P18 and P19 and the oral testimony of PW22 cannot be accepted. But perusal of the cross-examination of PW22 and PW25 would only indicate that they were questioned about the manner in which chance fingerprints were obtained from the scene of occurrence. There is no challenge that the investigating officer had falsely sent the specimen finger impressions to PW22. That apart, the chance fingerprint and the finger impressions of the accused received by the fingerprint expert from PW25 has also been exhibited before Court and no challenge had been made with reference to the specimen finger impression of the accused. Only when a challenge is made to the specimen finger impression of the accused that the veracity of the evidence becomes questionable. Of course, it is to avoid suspicion regarding the evidence, that the Apex Court observed in the judgments already cited that it is better to take the fingerprint impressions in the presence of a Magistrate. But in a case where there is no challenge at all, as to whether the specimen fingerprint impressions taken by the police is in any Crl.Appeal No.773/15 & conn.cases -:23:- way irregular or improper, the Court below was justified in accepting the evidence of PW22, as sufficient proof that accused 1, 3 and 5 were inside the building where the burglary occurred. 21. After the arrest of first accused, he gave a confession statement Ext.P20(a), based on which MO23 gold bangle was recovered from his house at Kadaloor District, Tamil Nadu. PW19, the owner of the house identified MO23 as one of the gold ornaments stolen from her house. Of course, the defence has a version that initially, there was no report regarding any loss of articles or valuables. It is at a later stage in order to deliberately implicate the accused that a confession statement and a planted recovery has been enacted by the police. But PW19, in her evidence stated that she had kept the bangle and two chains in a bag inside the locker of the almirah. Though during crossexamination, she stated that, after two-three days from the incident itself, she realised loss of the gold and the money, there is nothing to discredit her testimony. She was even asked that the bangle may not fit her, but she showed before Court that she could easily wear the bangle. That apart, PW19 does not reside Crl.Appeal No.773/15 & conn.cases -:24:- there regularly. PW20, brother of PW19 had deposed that when he reached the scene, the police was present there. The door on the northern side was broken. One granite piece and two-three stones were lying there. He had a key with him. He opened the main door and police went inside. The bedroom door on the ground floor was also broken with a stone. The almirah was also lying open. Other damage also had been caused. He had given a statement on 30[th] . His sister PW19, came on 4/11/2012 and the Circle Inspector of Police questioned her. She stated about the loss of gold ornaments and money. He admitted that they have stated to the police regarding the loss of money and gold ornaments only after his sister had come. When he was asked why he did not mention to the police regarding loss of gold and money, his answer was that he did not know about it and when he asked his sister (PW19), she told him that unless she comes, she will not be able to say so. It is based on this evidence that it is argued that the loss of gold ornaments and money was a invented story to suit the prosecution case. But it could be seen from the evidence of PW25 that the gold bangle MO23 was Crl.Appeal No.773/15 & conn.cases -:25:- recovered from the residence of A1, based on his confession statement. PW19 had identified the said gold bangle. There is no reason for her to give false evidence before Court. Therefore, we have no hesitation to conclude that MO23 gold bangle belonged to PW19 and it was recovered u/s 27 of the Evidence Act on the basis of the statement given by the first accused. Though two gold chains and `1,10,000/- were also found missing from their house, there is no recovery to that extent. Therefore, there is proof enough to show that house trespass and robbery had been committed by the accused. Taking into account the fact that only the fingerprint impression of three of the accused could be located from the building, their presence alone stands proved. 22. Next question is as to who committed the homicide of Bose. At the time when PW1 and others including PW10 and PW25 saw the victim, he was dead. He had injuries on his face, he was kept in a tied condition and Doctor who conducted postmortem opined that death was due to smothering. Apparently, there is evidence to prove that Bose was engaged as a Security Guard for the said building and property belonging to Crl.Appeal No.773/15 & conn.cases ## -:26:- PW19. Therefore, if accused requires to conduct robbery, necessarily, the Security Guard had to be immobilized. For that purpose, they have tied him and probably when Bose started to make sound, they have smothered him, which resulted in his death. 23. The accused had been found guilty for offence u/s 302, 394, 460, 461 r/w S.34 of I.P.C. Apparently, it was after silencing Bose that the accused had indulged in theft. 24. The accused 2 and 4 had been acquitted giving them the benefit of doubt as their presence inside the premises could not be proved by the prosecution. Therefore, the appeal filed by the State has no merit. 25. From the evidence adduced by the prosecution, the following circumstances stands proved by the prosecution. (i) Bose was working as a Security Guard of the a building belonging to PW19. (ii)Bose was found dead on 30.10.2012, morning in the said building. His hands and legs were tied and he was smothered to death. Crl.Appeal No.773/15 & conn.cases -:27:- (iii) Accused were present in or near the scene of occurrence between 5.30 pm on 29/10/2012 to 3.30 am on 30/10/2012. The accused were identified by PW12, PW13, PW17 and PW21. - (iv) Fingerprint impressions of accused 1, 3 and 5 are seen in the building where Bose is found dead. - (v) A bangle was recovered from the house of first accused on the basis of his confession statement of first accused. - (vi) The Bangle MO23 belonging to PW19 was stolen from the said building, along with other items. - (vii) Force was used to have an entry, open a few doors and the almirah inside the building. 26. The aforesaid circumstances had clearly formed a chain which is proved beyond reasonable doubt and despite the arguments of the learned counsel for appellants, it is a case where before committing burglary, the Security Guard was murdered and thereafter they have committed theft of articles. 27. The trial Court had considered the entire evidence in its proper perspective and has arrived at a proper conclusion Crl.Appeal No.773/15 & conn.cases -:28:- which does not require interference. Appeals are hence dismissed. **Sd/A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR** Rp True Copy **JUDGE** PS to Judge