Vinod s/o Kunjan Achari 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** **MONDAY, THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940** **CRL.A.No. 1040 of 2014** **AGAINST THE JUDGMENT IN SC No.27/2011 ON THE COURT OF ADDITIONAL SESSIONS JUDGE-II,(SPECIAL), KOTTAYAM, DATED 11-10-2013 C.P.No.38/2010 of J.F.C.M. COURT-I, KOTTAYAM** **CRIME NO. 527/2010 OF Pampady Police Station** ## **APPELLANT/ACCUSED:** **VINOD, S/o KUNJAN ACHARI, C.NO.8550, CENTRAL PRISON, THIRUVANANTHAPURAM -12.** ## **BY ADV. ANANDAN PILLAI[STATE BRIEF]** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY DGP, HONOURABLE HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS.SMT.AMBIKA DEVI S SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C SMT.PRAICY JOSEPH SPL. GOVERNMENT PLEADER SR. PUBLIC PROSECUTOR SRI. K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.09.2018, THE COURT ON 08.10.2018 DELIVERED THE FOLLOWING:** Crl. Appeal No.1040 of 2014 2 ## **JUDGMENT** ## **P. Somarajan, J.** A lady aged 56 years met with a sad death while she was collecting grass from the property of JTS at Velloor in Pampady Village on 05.09.2010. The accused was arrested and charge sheeted for the offence punishable under Sections 302 and 394 IPC for the murder of the lady and for committing robbery of her gold ornaments and put under trial in Sessions Case No. 27/2011 of the IInd Additional Sessions Judge, Kottayam. The accused was found guilty both under Sections 302 and 394 IPC and rendered a judgment of conviction and order of sentence dated 11.10.2013 against which he came up with this appeal. 2. There is no eye witness to the alleged incident. The prosecution hence relies on the circumstantial evidence. The main circumstance proved against the accused is the recovery of MO1 to MO3 gold ornaments belonged to the victim under Exhibit P5 mahazar, based on the disclosure of the accused while under custody. The disclosure was proved through PW35, Crl. Appeal No.1040 of 2014 3 the Investigating Officer, and the recovery was proved through PW20, who witnessed its recovery from an almirah kept in the house of accused. It was found wrapped in a newspaper and kept inside the dress kept in the almirah. Exhibit P5(a) is the disclosure statement. Nothing was brought out to discredit the oral testimony of PW20 regarding the recovery. MO1 to MO3 - gold chain, locket and one of the bangles, were identified by PW5, the elder son of the deceased. MO1 is the gold chain of a particular fashion. MO2 is the locket wherein the picture of Guruvayoorappan is depicted and MO3 is the bangle of a particular type, which were worn by the deceased mother, according to PW5. But, during cross examination he deposed that he came to know about the details of gold ornaments worn by the deceased from his younger brother. It was submitted that PW5 had not made any mention about the gold ornaments at the earliest opportunity and hence it was submitted that it is only an embellishment and cannot be accepted. But the oral evidence tendered by another independent witness PW6, an NSS worker and a neighbouring Crl. Appeal No.1040 of 2014 4 lady, would clearly support and prove the identity of MO1 to MO3 gold ornaments being the one worn by the deceased as on the date of commission of the offence. She went to the house of deceased by 5.00 p.m. on that day and according to her, at that time she was wearing all these gold ornaments. Her identification is found to be trustworthy and genuine and nothing was brought out to discredit her evidence. No explanation was forwarded by the accused how he came into possession of MO1 gold chain, MO2 locket and MO3 bangle. The question whether unexplained possession of articles of theft amounts to presumptive evidence of charges of murder was considered by a Division Bench of this Court (in which we are the members) in **Manikandan v. State of Kerala [2018 KHC 40 = 2018 (1) KLD 333 = 2018 (1) KLT SN 56 = 2018 (1) KLJ 350 = ILR 2018 (1) Ker. 527]** and after referring various decisions of the Apex Court in **George v. State of Kerala [2002 KHC 1669 = 2002 (4) SCC 475 = AIR 2002 SC 1647 = 2002 CriLJ 2031]** , **Baiju v. State of M.P. [1978 KHC 490 = 1978 (1) SCC 588 = AIR 1978 SC** Crl. Appeal No.1040 of 2014 5 **522 = 1978 SCC (Cri) 142 = 1978 CriLJ 646 = 1978 MLJ (Cri) 300 = 1978 (26) BLJR 54]** , **Wasim Khan v. The State of Uttar Pradesh [1956 KHC 419 = 1956 SCR 191 = AIR 1956 SC 400 = 1956 CriLJ 790 = 1956 (2) MLJ (SC) 9 = 1956 ALJ 457** , **Alisher v. State of Uttar Pradesh [1974 KHC 654 = 1974 (4) SCC 254 = AIR 1974 SC 1830 = 1974 SCC (Cri) 416 = 1974 CriLJ 897]** , **Tulsiran Renu v. The State [1954 KHC 398 = AIR 1954 SC 1 = 1954 CriLJ 225]** , **Ram Bharosey v. State of Uttar Pradesh [1954 KHC 551 = AIR 1954 SC 704 = 1954 CriLJ 1755]** , **Sanwat Khan v. State of Rajasthan [1956 KHC 367 = AIR 1956 SC 54 = 1956 CriLJ 150]** and **Sunderlal v. The State of Madhya Pradesh [1954 KHC 407 = AIR 1954 SC 28 = 1954 CriLJ 257]** , the decisions of our High Court in **Ravunni Nair v. State of Kerala [1957 KHC 44 = 1957 KLT 255 = 1957 KLJ 262 = 1957 KLJ NOC 23 = 1957 KLT SN 31 = ILR 1957 Ker.67 = AIR 1957 Ker.65]** , **Kuttappan v. State of Kerala [1960 KHC 214 = 1960 KLT 829 = 1960 KLJ 896 = 1960 (2) KLR 222]** and **State of** Crl. Appeal No.1040 of 2014 6 **Kerala v. Jayanandan @ Jayan [2017 KHC 66 = 2017 (1) KHC SN 31 = 2017 (1) KLD 283 = ILR 2017 (1) Ker. 638 = 2017 (1) KLT SN 96 = 2017 CriLJ 2218]** and various High Courts in **Emperor v. Chintamani Sabu [AIR 1930 Cal.379]** , **Re Guli Venketaswamy [AIR 1950 Mad.309]** and **Ramprashad Makundram Rajput v. The Crown [AIR 1949 Nag. 277]** settled the legal position as follows: _“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 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._ Crl. Appeal No.1040 of 2014 7 _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. It is well within the power of the court to test whether the commission of murder and robbery would form part of the same transaction, both by direct evidence and presumptive evidence, and in the case of latter one, the test is to find out the existence of any other hypothesis for the commission of murder rather than what is available under the presumptive evidence.”_ 3. Since the commission of offence of robbery and homicide simultaneous being part of same transaction, the unexplained possession of MOs 1 to 3 by the accused, just after the commission of offence, would be presumptive evidence of both commission of robbery and homicide. 4. Yet another incriminating factor also brought out through the chemical examination of the stain found in MO6 pair of chappels belonged to the accused which were, on forensic lab examination, found to be stained by human blood Crl. Appeal No.1040 of 2014 8 of 'O' group, the blood group of the victim. Chappels are item No.12 in Exhibit P30 FSL. These chappels were found to be kept outside the front door of the house of the accused and the accused was found sleeping inside the house. Further, the weapon used for the commission of offence, a firewood, recovered from the place of occurrence was also found to be stained with blood of 'O' group, which is item No.7 in Exhibit P30 FSL. 5. PW7, the brother-in-law of the accused, had given evidence admitting a confession alleged to have been given by the accused admitting the alleged incident and his complicity. PW7 deposed that on getting information, his mother and father came to the house with a decision to commit suicide by consuming Cyanide after seeing their son, the accused herein. When he enquired about the rumour that it is the accused who committed murder of the victim, he plainly admitted the same as true, but assured that no one will arrest him. 6. PW7 and PW8 were examined to show that on the same day evening at 7.00 p.m. the accused went to the shop Crl. Appeal No.1040 of 2014 9 of PW7 with a gold bangle and sold a portion of the gold bangle, having a weight of 2.5gm, which was melted into gold ingot, identified as MO4. PW8 is another person who was examined to show that the remaining part of the bangle having a weight of 1.300 gm was sold to him, which was also melted into gold ingot, identified as MO5. But there is no identification of the said gold bangle as that of the victim by any of the witnesses examined by the prosecution. But the fact that the accused in the evening of the day of incident went to the shop room of PW7 with a gold bangle and sold a portion of the same would be relevant, when he did not have any case that it is belonged to him or he had taken it from someone for the purpose of sale. No such case was advanced by the accused during his examination under Section 313 Cr.P.C. PW7 and PW8 are found to be independent witnesses and the accused is known to them. The conduct of the accused in selling the gold bangle by pieces to two different persons, that too on the evening of the day of incident at 7.00 p.m., would sufficiently show that he wants to sell it in Crl. Appeal No.1040 of 2014 10 pieces. Immediately after the sale, he went to the nearby bar for consuming alcohol which has also come out from the oral evidence tendered by the Auto Driver, PW9. In fact, there is no explanation from the accused for the possession of the said gold bangle and even he did not have any case that it is belonged to him or he had borrowed it from somebody else. 7. The absence of accused, who is one of the neighbours to the victim, at the time of her funeral when read along with the above said circumstance looms large indicating his complicity in the crime. 8. The medical evidence adduced through the Doctor who conducted autopsy on the body of the deceased (PW28) and Exhibit P12 post-mortem examination certificate also support the user of MO6 firewood for the commission of offence. The fact that the same was found to be stained with human blood of 'O' group is yet another factor supporting the user of the said weapon. But the weapon was recovered from the place of occurrence and not recovered under Section 27 of the Evidence Act. The injuries sustained comes to 11 in Crl. Appeal No.1040 of 2014 11 number which are narrated as the ante-mortem injuries in Exhibit P12 as follows: - _“1. Abraded contusion on back of left elbow 1x1cm._ _2. Abraded contusion on 9x0.5cm transverse, 13.5cm below knee line scab formed with healing edges._ _3. Lacerated wound on occiput 4x3 cm transverse, bone deep._ _4. Lacerated wound on left side of upper lip 3.5x1.5cm transverse muscle deep._ _5. Abraded contusion on bridge of nose 1x1cm._ _6. Lacerated wound on right frontal eminence 4x1.5cm transverse._ _7. Lacerated wound on frontal region on mid line 4x2cm transverse 5x5cm on above root of nose._ _8. Lacerated wound on left eyebrow 4.5x2cm transverse, bone deep, scalp contusion over a total area of 9x9cm._ _9. Lacerated wound on left temporal region 4.5x1cm. 2.5cm above top of left ear. The frontal bones, the left temporal bone and the floor of the middle and front cranial fossae were fractured into multiple small pieces. The temporal fossa showed a depression of 2.5cm. Laceration of the right frontal lobe at its under surface 3x3x0.5cm. The left temporal lobe and its under surface 4x4x1.5cm. Upper part of right frontal lobe lacerated 3x3x1cm. Subdural and subarachnoid haemorrhages seen on both sides, brain appal pale._ Crl. Appeal No.1040 of 2014 12 _10. Abraded contusion on left cheek 3x2cm, transverse._ _11. Fracture of right side of mandible at body region. The upper jaw contained on artificial denture.”_ 9. The number of injuries and its nature and measurement would show that there was a frantic attack on the victim by the accused with a view to commit robbery. She is a neighbour to the accused and it might be dangerous for him to leave her alive. This would be what is behind the frantic attack and it would fall under Section 300 IPC and none of the exceptions would come into play in the instant case. 10. Hence, the finding of guilt of accused for the offence under Sections 302 and 394 IPC and the conviction thereunder do not call for any interference by this court. The sentence awarded for the offence under Section 302 IPC being the lesser one, deserves no interference. In so far as the sentence for the offence under Section 394 IPC is concerned, it can be reduced to seven years owing to the age of the accused and the background under which the offence had been committed and hence to that extent the appeal is hereby allowed. Crl. Appeal No.1040 of 2014 13 In the result, the appeal is allowed in part. The finding of guilt of accused under Sections 302 & 394 IPC and the conviction thereunder are confirmed. The sentence awarded for the offence under Section 302 IPC is also confirmed. The sentence awarded for the offence under Section 394 IPC is modified directing the accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs.25,000/-, in default, to undergo rigorous imprisonment for one year. Substantive sentence shall be run concurrently. The fine amount, if realized, shall be paid to the legal heirs of the deceased under Section 357(1)(b) Cr.P.C. ## **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE** **Sd/-** **P.SOMARAJAN JUDGE** DMR/-