Kerala High Court
Nidhin @ Unni vs The State Of Kerala
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim, B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938
CRL.A.No. 1131 of 2010 ( )
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AGAINST THE JUDGMENT DATED 11-06-2010 IN SC 130/2010 of
ADDL.SESSIONS COURT (ADHOC), MAVELIKKARA
APPELLANT/ACCUSED NO.3:
-----------------------------------------
NIDHIN @ UNNI,
S/O.GOPALAKRISHNAN,
'NIDHIN NILAYAM', UDYOGAMANDAL,
ERNAKULAM DISTRICT.
BY ADVS.SRI.BABU S. NAIR
SRI.P.A.RAJESH
SRI.K.RAKESH
SMT.M.T.SHEEBA
SMT. VRINDA PAUL
RESPONDENT/STATE:
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THE STATE OF KERALA,
REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE,
CHENGANNUR, THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.
BY SPL. PUBLIC PROSECUTOR SRI. NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-12-2016,
ALONG WITH CRL. APPEAL Nos.1370, 1448 & 1633/2010 THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
AMG
C.K. ABDUL REHIM, J.
&
B. SUDHEENDRA KUMAR, J.
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Crl. Appeal Nos.1131, 1370, 1448 & 1633 OF 2010
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DATED THIS THE 5th DAY OF DECEMBER, 2016
J U D G M E N T
Abdul Rehim, J:
The above appeals were preferred against the conviction and sentence imposed against the appellants by the Additional Sessions Court, Mavelikkara in SC No.130/2010. Accused Nos.1 to 4 are the appellants in Crl.
Appeal Nos.1370, 1448, 1131 and 1633 of 2010, respectively. The Sessions Court found all the accused guilty of offence under Section 302, 394, 120B and 201 read with Section 34 of the Indian Penal Code (IPC). The 1st accused was also convicted under Section 114 read with Section 302 IPC. Accused 2 to 4 were also convicted under Section 449 read with Section 34 IPC. All the accused were sentenced to undergo life imprisonment under Section 302 read with Section 34 IPC and to pay a fine of Rs.25,000/-
each and in default of payment of fine to undergo rigorous Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -2- imprisonment for one year. All the accused were also sentenced to undergo different terms of imprisonment with respect to other offences for which they were convicted.
2. Case of the prosecution in brief is that, the 1st accused is the daughter-in-law of the deceased, Bhaskara Karanavar (hereinafter referred as Karanavar for short), who was aged 66 years at the time of death. The husband of the 1st accused Sri.Binu, who is the son of the deceased, is a mentally retarded person. Other children of the deceased namely Biju and Betzy are based in United States. Wife of the deceased, Santha had predeceased him. Karanavar was anxious to protect his mentally challenged son and he had initially executed a 'settlement deed' (Ext.P7) assigning certain immovable properties in the joint name of Sri.Binu, the 1st accused and their minor daughter 'Aiswarya'. But, subsequently on noticing that the 1st accused is leading a spendthrift and uncontrolled life, he decided to cancel the settlement deed. Accordingly Karanavar executed Ext.P8 'cancellation deed' before PW35 Sub Registrar. The 1st accused was not in cordial relationship with her father-in- Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -3- law, because he had cancelled the 'settlement deed' and because he had questioned her illicit connections and spendthrift nature. For the said reasons, and also with the intention to create an atmosphere conducive for the continuance of her illicit sexual relationship with the 2nd accused, she decided to do away with her father-in-law, for which she sought the help of 2nd accused. The 2nd accused was having business dealings and illicit sexual relationship with the 1st accused. Accused 3 & 4 are the friends of the 2nd accused. Allegation is that, all the accused conspired together to murder Karanavar and for that the Accused 2 to 4 came together to the house of Karanavar, named "Karanavar's Villa", on the night of 06-11-2009 and made observations at the house and its surroundings. The 1st accused kept opened the door of the kitchen in the house, for having free access to the 2nd accused. The 2nd accused shared bed with the 1st accused in the bed room of the latter and gifted MO8 silver ring to the 1st accused as a mark of his love, and left the house on the night of 06-11-2009. On the late night of the next day, on 07-11-2009, the accused 2 Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -4- to 4 came to the house in furtherence of their common intention to do away with Karanavar. The 1st accused made all arrangements to make their safe entry into the house. She administered sedatives to the watch dog. She kept the front and the kitchen doors of the house opened to make the entry trouble free. At about 12.30 a.m. on 08-11-2009 accused Nos. 2 to 4, in furtherance of their common intention of committing murder and robbery, as preplanned with the 1st accused, committed tresspass into the house. On their entry into the house, the 1st accused took accused 3 & 4 to a bedroom situated on the first floor. Thereafter accused 1 & 2 shared bed in her bed room. Later accused 3 & 4 were brought to the ground floor in order to commit the robbery and murder. The 1st accused then led accused 2 to 4 to the bed room of Karanavar and abetted to commit the offence. The accused 2 to 4 entered the bed room of the deceased. When the 3rd accused attempted to put cotton soaked in chloroform on the nose of Karanavar, he woke up, struggled and tried to get out of the bed. At that time the 3rd accused smothered him with a pillow. The 2nd accused Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -5- caught hold of Karanavar and pressed him at his neck and strangulated him with a towel (thorth) put across his neck. The 4th accused pressed on the abdomen portion of Karanavar with his knee and also caught hold of his legs. Thus the accused 2 to 4 had committed murder of Karanavar. Thereafter they committed robbery of MO1 Laptop, MO2 camera, MO3 & MO4 mobile phones, MO5 Rado watch, MO6 Cerintino Watch, currency note worth Rs.8,000/- and a gold linked 'Rudraksha bead chain' having 2.5 sovereigns of gold. All the said articles, worth a total sum of Rs.1,11,000/-, were robbed from the residence of Karanavar. The said articles were entrusted with the 4th accused. After committing the murder and robbery, the accused 2 & 3 sprinkled chilly powder in the bed room and on the body of the deceased and also on several other places in the house, inorder to destroy the evidence. The 1st accused had abetted accused 2 to 4 to commit the murder and the robbery and thereby all the accused have committed the offences alleged.
Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -6-
3. Karanavar was found dead in his bed room on the morning of 08-11-2009. PW1 Anilkumar, who is a neighbour of the deceased, reported the matter to the police, at Chenganoor Police Station. He gave Ext.P1 F.I. Statement about the death of Karanavar under mysterious circumstances. The statement was recorded by PW50, who registered Ext.P1 (a) F.I.R. under Section 174 Cr. P.C. at 9 am on 08-11-2009. Later on, the investigation conducted revealed that, Karanavar was murdered. PW51 took over the investigation on 09-11-2009 and he filed Ext.P17 report incorporating the offence punishable under Section 302 IPC. On the date of the occurrence itself, PW50 had visited the scene and conducted inquest on the body of Karanavar and prepared Ext.P17 report. Ext.P18 is the scene mahazer prepared, under which various articles were seized into custody from the house. Subsequently, PW51 prepared Ext.P3 observation mahazer on detailed examination of the premises and also seized various documents from there. Autopsy on the body of the deceased was conducted by PW33 Doctor between 9.30 and 10.30 a.m. on 09-11-2009, Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -7- who issued Ext.P47 'Post Mortem Examination Certificate', which revealed the following ante mortem injuries on the body.
"1. Abrasion 0.8x0.4 cm. almost vertical on the left side of forehead 0.5 cm. outer to midline and 3.2cm. above eyebrow.
2. Superficial contusion 8x7cm on the right side of face just in front of the ear lobe.
3. Contusion 3x2x0.3cm. on the outer aspect of right side of lower lip just outer to midline.
4. Lacerated wound 1.3x0.3cm. with a contusion 0.7x0.5cm. in the lower margin placed across the midline and 2.3cm above the outer margin of lower lip.
5. Contusion 2x1cm. superficial on the outer aspect of left side of lower lip 2cm. inner to the angle of mouth.
6. Lacerated wound 0.7x0.5x0.5cm. with multiple nail marks over an area of 6x2.5cm. across the upper lip, the larger one being circular 2cm. Inner to outer margin of upper lip.
7. Contusion 3.5x0.5cmx0.3cm. on the outer aspect of right side of upper lip 0.8cm. outer to midline 0.5cm. inner to lip margin.
8. Abrasion 0.3x0.3cm on the tip of nose.
9. Abrasion 0.3x0.3cm on the right ala of nose 1.3cm.
outer to midline at the lower margin.
10. Multiple graze abrasions over an area of 2x1cm. on the right ala of nose, 2.5cm. outer to midline and 1cm. Above the lower margin.
11. Multiple graze abrasions over an area of 3.5x2cm.on the left ala and adjoining bridge of nose, the lower end 2.5cm. outer to midline and 0.8cm. above the lower margin of ala of nose.
Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -8-
12. Contusion 0.5x0.5x0.3cm on the left side of bridge of nose, 0.8cm. outer to midline and 2cm. above the tip of nose.
Tip of nose and area around mouth showed patchy areas of pallor.
13. Faint contusion (ligature mark) 27 cm. long on the front and sides of neck and was placed 5cm. below right ear (4cm. Broad), 5 c.m. below chin (6.5 c.m. Broad) and 5 c.m. below right ear (5 c.m. broad). Flap dissection of neck was done under a bloodless field. The subcutaneous tissue underneath the ligature mark showed congestion. Contention (i) 1.7x0.8x0.4cm. on the clavicular head of sterno cleido mastoid muscle 4cm. above the lower attachment. (ii) 2x2x0.8cm. on the left side of neck overlaying the lower border of jawbone and 2.5cm. outer to midline. (iii) Multiple small contusions 0.5x0.5x0.5cm.each over an area of 3.8 x 3cm on the front of neck across midline and 2.3cm. below chin. (iv) Contusions involving the whole of isthmus of thyroid gland. Haemorrhages and petechiae seen in the epiglottis, pharynx, larynx, adjoining oesophagus and aryepiglottic folds.
14. Superficial contusion 4.8x3.5cm. involving the posterior third of tongue.
15. Contusion 0.3x0.3x0.3cm. on the left margin of tongue, 3.5 cm. above the tip.
16. Contusion of mesentery 5x4x0.5cm. at the ileocecal junction with contusion of small intestine 15cm. in length, 54cm. proximal to it.
17. Contusion 13.8x5x1.8cm. involving the soft tissues around pancreas and duodenum. Pancreas showed bleeding at places along the entire length. Mucosa of duodenum also showed bleeding.
18. Contusion 0.7x0.5x0.3cm on the inner aspect of right arm 13cm. above elbow.
19. Contusion 1x0.5x0.3cm on the inner aspect of right arm 19cm. above elbow.
Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -9-
20. Contusion 0.3x0.3x0.3cm on the front of right forearm 4cm. above wrist.
21. Injection mark 2.7x1.9x0.7cm. involving the front outer aspect of right forearm 2.7cm. above wrist.
22. Multiple small contusions of sizes varying from 0.3x0.3x0.2cm to 0.4x0.3x0.2cm. over an area of 2x1cm. on the front of left forearm 2.9cm. above wrist."
PW33, while examined before the court, opined that the death occurred due to the combined effect of strangulation and smothering. He further deposed that, the injury No.1 to 13 can be caused by exerting pressure on the mouth of the victim, especially on the mouth and nostrils, which can be caused with hands. He opined that injury No.13 noted in the report could be caused by ligature strangulation using force of by a 'thorth' (towel) or a like object. It was also opined that the injury Nos.14 & 17 could be caused during the course of such a strangulation. PW33 specifically deposed that, the injury No.13 is independently sufficient in the ordinary course of nature to cause death and injury No.1 to 12 are collectively sufficient to cause death in the ordinary course of nature. PW33 further opined that, the death of the deceased was caused approximately 18 hours Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -10- prior to keeping of the dead body in the cold chamber.
4. This is a case where there is no direct evidence available with respect to the incident. At the time when Ext.P1 statement was given, PW1 only mentioned that the deceased died under mysterious circumstances. He came to know about the death as informed by PW5. When examined before the court he deposed that, after giving Ext.P1 statement when he returned to Karanavar's Villa, PW3 told him about the loss of certain valuable articles. He identified MO1 to MO6 as articles belonging to Karanavar, which were kept in his bed room. He further deposed that, he came to know from Karanavar about execution of the 'cancellation deed' and Karanavar told him about the threat faced with respect to his life and to the life of his son Binu, because of the immoral life lead by the 1st accused and because of her financial transactions with outsiders. However, in the cross-examination he conceded that, he has not mentioned about such things to the police.
5. PW3 is the sister of the deceased who also identified MO1 to MO6 as articles belonging to Karanavar. Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -11- According to her, when she arrived the house on hearing about the death of Karanavar, she heard the 1st accused saying about the loss of MO1 to MO6 articles. She deposed that, Karanavar used to visit her house and on one occasion he wept before her saying about the problems at his house. She categorically deposed that, Karanavar told her that the 1st accused is not a straight forward lady and that she may kill him. When enquired by PW3 about the reason, Karanavar conceded about the execution of the 'cancellation deed' and told that the 1st accused had never expected that.
6. PW5 was the Driver of the deceased, who was staying in the outhouse of 'Karanavar's Villa'. He deposed of having purchased some tablets on the date of the incident, from a medical store at 'Kollakadavu', on the request of the 1st accused. PW31 is the owner of the medical shop, from where the tablets were purchased. He confirmed that PW5 had purchased 20 tablets on 06-11-2009. Exhibit P46 is the mahazer prepared at the time of seizure of the 'Bill Book' maintained in the medical store. It was revealed from the Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -12- carbon copy of Bill No.2277 that 20 numbers of tablets, "stressnil 0.5 mg" was purchased on 06-11-2009. PW5 had further deposed that on 06-11-2009 itself one bottle of "Green Label Whiskey" was purchased at the request of the 1st accused, through a boy residing nearby. PW5 further testified that, on the morning on 07-11-2009 the maid servant of the house (PW6) had informed him that the front and back doors of the house were seen opened and when she asked about this to the 1st accused replied that, herself and PW6 might have forgotten to close the doors on the previous night, because they had taken the liquor. According to PW5, when he woke up on the morning on 08-11-2009 at about 6.30 a.m., PW6 told him about the spreading of chilly powder inside the house. She told that the front and back doors of the house were kept opened. When the 1st accused was called upon, she said that she doesn't know anything. Chilly powder was seen spreaded near to the bed room of Karanavar. When they entered that bed room, they saw Karanavar lying dead with chilly powder spreaded over his body. Thereafter he called others Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -13- to the house. As instructed by PW4, a Doctor was brought to the house, who on examination confirmed the death of Karanavar.
7. PW6 is the maid servant of the house. She also testified that she saw the doors of the house remaining opened, on the morning of 07-11-2009. According to her, when the matter was informed to the 1st accused she prevented PW6 from disclosing it to Karanavar, stating the reason that he will scold PW6. She further deposed that, on the morning of 08-11-2009 she had seen the front and back doors of the house remaining opened and also the spreading of chilly powder at various places inside the house. She corroborated the version of PW5 that, at that time they found Karanavar lying dead in his bed room and the 1st accused told to her about the loss of valuable articles belonging to the deceased. Both PW5 and PW6 had identified MO1 to MO6 articles as belonging to the deceased. PW6 testified that there were quarrels between the 1st accused and Karanavar and that the 1st accused had once beaten him, in which his spectacles was broken and he Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -14- sustained injury on the nose. However, it has come out that such a version was not mentioned by PW6 while questioned by the investigating officer.
8. PW4 is the President of the Grama Panchayat and a close friend of Karanavar. PW7 is another friend of Karanavar, from their childhood age. PW4 deposed that, Karanavar was always worried about the illegitimate character and extravagant spending nature of the 1st accused. But he was keeping patience towards all such attitudes only for the sake of his disabled son. He deposed of having witnessed the 1st accused beating Karanavar causing breakage of his spectacles and injury on his face, above the nose. He deposed about execution of the 'settlement deed' and the subsequent 'cancellation deed' by Karanavar. He also identified MO1 to MO6 as articles belonging to the deceased. PW4 opined that, he sincerely believe that the 1st accused had committed murder of Karanavar with the help of accused 2 to 4, because of her illicit relationships and illegal business activities and also due to her enmity towards Karanavar because of the Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -15- cancellation of the settlement.
9. PW7 also identified MO1 to MO6 as articles belonging to the deceased. He deposed that he was a close friend of Karanavar. According to him, the 1st accused started illicit connections and money transactions with some persons, about which he had mentioned to the Karanavar. Thereafter Karanavar had cancelled the will and because of that the 1st accused was on enimical terms with him. He testified that he had mentioned about this to the Karanavar and at that time Karanavar told that his life is in danger. PW7 had advised Karanavar to be careful.
10. From the evidence of PW1 and PW3 to PW7 and also from the medical evidence adduced by PW33, it stands proved that the death of Karanavar was a homicide, which occurred at his house during the night between 07-11-2009 and 08-11-2009, and that the death was caused by strangulation and smothering. There is also proof regarding the robbery of MO1 to MO6 articles from the bed room of Karanavar on that day. It is brought out in evidence that, on the night between 7th and 8th November, 2009 and also on Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -16- the previous night, somebody had kept the front and back doors of the house opened from inside, inorder to facilitate entry of the assailants. There is also evidence to the effect that on the evening of 06-11-2009 the 1st accused had purchased sedative tablets and one bottle of whisky, through PW5. Further it had come out in evidence that the deceased was very much worried about the character and lifestyle of the 1st accused and he made revelations about the threat being faced to his life from the 1st accused.
11. PW2 is a neighbour residing at about 10 feet away from the house of the deceased. According to him, at about 10.45 p.m. on 07-11-2009, when he came out of his house, he saw a man standing near the compound wall of Karanavar's house. When PW2 questioned, the person answered that he came there only for passing urine. He told that his vehicle is parked on the eastern side, because its fuel got exhausted. The said person requested PW2 to get an Autorickshaw. When PW2 tried to contact a friend over his mobile phone, two other persons came running out from the compound of Karanavar's house, through the side of a Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -17- shop situated therein. Those persons who came running requested the man who was standing near to PW2 to go from that place and all the three together had ran away from there. PW2 identified accused No.3 as the person whom he saw standing outside the house of the deceased and accused 2 & 4 as persons who came running out of the compound of the house of the deceased.
12. PW10 is a witness belonging to a place named Padinjarethara in Wynaad district. He deposed that he knows the 2nd accused as introduced by a person named 'Ustad', from Bangalore. He said that accused 3 and 4 were also known to him as introduced by the 2nd accused. He testified that, on 8.11.2009 at about 10 a.m. the 2nd accused called him over his mobile phone and said that he is coming to Wynaad and that he wants to meet him. At that time PW10 was at Kannur and he informed that he will be reaching Wynaad only by the evening. After about half an hour, the 2nd accused again called him stating that he need some money. When PW10 replied that he has no funds with him, the 2nd accused said that he got a chain with him worth Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -18- 3= sovereigns and the amount may be arranged either by selling or pledging the said chain. PW10 denied the request stating that, pledging of the chain is not possible on that day, because it was a Sunday. In the afternoon, the 2nd accused again called PW10 and enquired whether he had reached Wynaad. PW10 advised the 2nd accused to sell the chain at Kozhikode. But the 2nd accused replied that there is some problem for selling the chain. When asked as to whether the chain is a stolen property, the 2nd accused replied that he will tell everything directly when they meet. According to PW10, on that day at about 8 p.m., he met accused 2 to 4 at Padinjarethara in Wynaad in an 'Alto' car of red colour. They took PW10 in the said car to a nearby place and the 2nd accused revealed that they had gone to the house of 'Madam' at Chengannur and the father-in-law of 'Madam' was killed. When PW10 asked about details, the 2nd accused told that, everything was pre-planned with 'Madam'. According to the 2nd accused, the vehicle was kept hidden in an old building and they entered the compound of the house by jumping the wall. 'Madam' kept the doors of Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -19- the house opened. On entering the room of the father-in- law, the 3rd accused caused the Karanavar to smell cloroform; and all the 3 had pressed him in the bed and killed him. They have taken the laptop, chain and mobile phones from the room and thereafter spread chilly powder inside the room. According to PW10, the 3rd accused was wearing a "Rudhraksha bead chain" at that time, and the 2nd accused revealed that the said chain belonged to the deceased; and further revealed that the remaining articles are inside the car. Thereafter the 2nd accused told PW10 not to reveal these facts to anybody and that 'Madam' is arranging things there without any suspicion. According to PW10, the 2nd accused told him that, since her father-in- law was killed 'Madam' got escaped. According PW10, accused 2 to 4 demanded a sum of Rs.10,000/- for going to Bangalore. PW10 had arranged an amount of Rs.8,500/- and given it to the 2nd accused, on the promise that the amount will be remitted back to his bank account. PW10 had forwarded the details of his bank account to the mobile phone of the 3rd accused, through SMS. When PW10 called Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -20- the 2nd accused at about 11 a.m. on 9.11.2009, it was informed that they had not gone to Bangalore, but they are going back to Ernakulam. It was promised that, after selling the chain at Ernakulam, the amount will be remitted to PW10's bank account. The 2nd accused advised PW10 not to call him in his mobile phone and said that he can contact in the mobile phone of the 3rd accused. When called in the phone of the 3rd accused on 10.11.2009, it was told that the 2nd accused had gone out and that the amount will be remitted after his return. Thereafter the mobile phones of accused 2 and 3 remained 'switched off'.
13. PW12 is a girl aged 20 years, who had previous acquaintance with the 2nd accused while she was studying for 'Aviation Diploma course'. She belongs to a place called 'Arakkapady' near Perumbavoor. She deposed that, on 9.11.2009 the 2nd accused came to her house and at that time she met accused 3 and 4 along with him. According to her, they came in an 'Alto car' having 'wine red' colour. She deposed that the 2nd accused had charged a laptop at her house and he had also taken her mobile charger. After few Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -21- days, a police constable came to her house and when she called the 2nd accused over mobile phone, he instructed not to reveal anything about him to the police. PW12 further deposed that, the 2nd accused had mentioned to her about the 1st accused and about his intimacy to the 1st accused. PW12 had identified MO1 as the laptop which was charged by the 2nd accused at her house.
14. PW15 is a person belonging to 'Kodungallur' in Thrissur district. He was working as a 'beautician' in a beauty parlour at Pala. He deposed of having acquaintance with the 2nd accused and that they had travelled together to Salem in connection with the trial of a theft case, in which PW15 was the accused. He deposed that, he got acquaintance with the accused 3 and 4 through the 2nd accused. PW15 testified that, the 2nd accused called him over telephone at 10.30 p.m. on 9.11.2009 and requested to come to Palakkad, after collecting PW13. Accordingly, PW15 met PW13 at Ettumanoor on the morning of 10.11.2009 and both of them went to Palakkad. They met the 2nd accused in a workshop at Palakkad, in the presence Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -22- of the 3rd accused, along with some other friends. At that time the 2nd accused revealed about an incident which happened at Chengannur. According to PW15, the 2nd accused told that he had a friend named 'Sherine' at Chenganuur and that he went to her house and at that time he murdered her father-in-law. Testimony of PW15 is that, on hearing about this he returned from Palalakad and accused 2 to 4 had gone to Bangalore along with PW13. PW15 deposed that, thereafter on 11th, the 2nd accused called him from 'Salem' and said that he is going to occupy the room belonging PW15 situated at Salem. According to PW15, he met accused 2 to 4 at his room at Salem on the 12th, when he came there in connection with the trial of his case. At that time PW13 was not with them and accused 2 to 4 told him that PW13 had gone back to his native place. Testimony of PW15 is that, he has not allowed accused 2 to 4 to continue their stay at his room at Salem and accused 2 to 4 left the place stating that they are going to Bangalore. In the cross-examination PW15 clarified that the 2nd accused told him that the deceased made a hue and cry when Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -23- clorofom was smelled and therefore he has to be killed.
15. The investigating agency had seized the 'Maruti Alto' car in which the accused 2 to 4 were travelling after the incident, from the possession of PW16, who had rented out the vehicle to the 2nd accused. PW16 deposed that, the vehicle in question was rented out to the 2nd accused on 5.11.2009 and it was returned on 9.1.2009. The accused 2 to 4 were taken into custody on 10-12-2009 by PW48, the Sub Inspector of Police from a place near to 'Mookambika Temple' at Kollur in Karnataka state. PW21 is the Manager of the Guest House where the accused 2 to 4 were staying at Kollur, from 29.11.2009 to 10.12.009. PW21 identified all the 3 accused. He had produced Ext.P30 Sheet of the Registrar, which contained the particulars of their stay in the Guest House. The room was taken in the name and address of the 3rd accused. The entry was specifically marked as Ext.P30(a). PW21 deposed of having kept the room locked, as instructed by the police authorities, till 21.12.2009, on which date the police authorities conducted a search in the room. PW30 is the owner of the Guest Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -24- House, who also deposed that the 3rd accused had taken a room in the Guest House on 29.11.2009 and stayed there. During the course of the investigation, PW49, the Sub Inspector of Police, discovered MO20 Bag from the room in the Guest House, based on Ext.P65 disclosure made by the 2nd accused, by preparing Ext.P32 mahazar. The Bag contained among other articles, MO5 Rado Watch MO6 Cerindino Wrist watch and MO3 Black Berry Mobile phone, which were identified as belonging to Karanavar.
16. MO1 laptop was discovered during the course of investigation based on Ext.P68 disclosure made by 2nd accused, from the electronic shop of PW24 situated at Seccondarabad in Andhra Pradesh, by preparing Ext.P37 Mahazar. PW23 and PW24, when examined before the court, identified MO1 Laptop. They were attestors to Ext. P37 mahazar. They deposed of having purchased MO1 Laptop from the 2nd accused. The Investigating Agency had also recovered MO2 Digital Camera and MO4 Nokia Mobile Phone from the shop of PW25 at Goa, based on Ext. P67 disclosure statement of the 2nd accused, by preparing Ext. Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -25- P38 mahazar. PW26 have witnessed the discovery and signed as an attestor to Ext. P38 mahazar. PW25 had identified MO2 Camera and MO4 mobile phone as articles purchased from the 2nd accused. During the investigation the 3rd accused had given Ext. P125 disclosure statement to PW51 that the gold linked 'Rudraksha Bead Chain' was sold to PW18 who is running a jewellery shop at Kalamassery. Based on the said disclosure, a 'gold ingot' (MO19) was discovered from the shop of PW18, as led by accused No.3, by preparing Ext. P27 mahazar. PW18 had produced MO19 'gold ingot' to the police authorities. He deposed of having purchased the gold linked 'Rudraksha Bead Chain' from accused No. 3. He conceded of having melted the gold, after returning the 'Rudraksha Beads' to the 3rd accused.
17. PW42 is the Senior Manager (Legal) and Nodal Officer of the 'Idea Cellular Ltd.' Ext. P54 is the call details of the mobile phone No. 9747644544, which was proved to be the mobile telephone used by the 2nd accused. Ext. P56 is the list containing the tower locations of the said mobile Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -26- phone during the relevant period, along with its decoded details. Calls relating to the mobile telephone of the 2nd accused, contained in Ext. P54 was specifically marked as Ext. P54 (a). Likewise, the call details of the mobile telephone No. 9846972535 belonging to the 1st accused was specifically marked as Ext. P54 (b). Ext. P54(c) is the call details pertaining to the mobile phone No. 9539064799, which was proved to be the telephone used by 4th accused. PW43 is the Alternate Nodal Officer and Assistant Manager (Legal) of the Idea Cellular Ltd. He has produced Ext. P57 certified extract of the datas contained in the server system of the mobile company. He corroborated the evidence of PW42 with respect to the call details of the telephones of accused Nos. 1, 2 and 4. PW44 is the Senior Manager (Legal) and Nodal Officer, M/s. Vodafone Essar Cellular Limited. He testified the applications and the identity proofs produced at the time of purchase of the sim cards which were used in the above said mobile phones. From the oral and documentary evidence adduced through PW42 to PW44 and through Exts. P53 to P61, it is proved Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -27- that there were 32 calls and SMSs between the mobile phones of accused 1 and 2, in between 12.04 a.m. and 11.51 p.m. on 7-11-2009 and 7 calls in between 02.36 a.m. and 08.17 a.m. on 8-11.2009. It is also evident that there were 3 calls between the mobile phones of accused 1 and 4, in between 12.54 a.m. and 1.33 a.m. on 7-11-2009 and 7 calls in between 12.03 a.m. and 1.39 a.m on 8-11-2009. It is further revealed that, the telephone calls between accused 1 and 2 after 10.37 p.m. on 7-11-2009 till 11.51 p.m. on the said day had arisen from the towers located at Aala, Cheriyanad and Chengannur. So also, the calls between accused 1 and 2 at 2.36 a.m. on 8-11-2009 originated from a tower located at Aala. Likewise, the calls between the 1st and 4th accused on 7-11-2009, in between 1.28 a.m. and 1.33 a.m. and between 12.03 a.m. and 1.39 a.m. on 8-11-2009, had arisen mostly from the towers located at Cheriyanad, Aala and Ilanhji. It is proved that, there were three calls made in between the mobile phones of accused 1 and 4, between 1.44 a.m. and 2.13 a.m. on 8-11-2009, within the tower location of Cheriyanad and Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -28- Puliyoor. The prosecution could also brought out in evidence the details of the calls made from the telephone of the 2nd accused to the telephone of PW10 on 8-11-2009, 17 times in between 9.48 a.m. and 7.18 p.m. There is also evidence to the effect that the 2nd accused made 3 calls to the telephone of PW14 between 10.08 a.m. and 11.44 p.m. on 9-11-2009. The tower locations in these cases would also support the prosecution that the 2nd accused had made the calls at relevant time from different towers located at Kozhikode and Wayanad, in the case of PW10 and at Engandiyur and Palakkad in the case of PW14. So also, it was brought out in evidence that, there were telephone calls between the mobile phones of the 2nd accused and PW15 on 9-11-2009 and on 10-11-2009 from various towers located at Chandra Nagar in Palakkad. The evidence adduced in this regard would specifically indicate that, accused 1, 2 & 4 were available in the locations nearby to the place of the occurrence, during the nights between 6-11-2009 and 7-11-2009, and also during the night between 7-11-2008 and 8-11-2009. It would also fortify Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -29- the case of the prosecution that the accused 2 to 4 had travelled together to Kozhikode and Wayanad on 8-11-2009 and to Palakkad on 9-11-2008.
18. It is brought out in evidence that, the scene of occurrence was visited by PW38, the Finger Print Expert attached to the Finger Print Bureau, Aalappuzha District, along with PW39, the Scientific Assistant attached to the 'District Crime Record Bureau' of Alappuzha District. PW38 had deposed before the court that, she could detect and develop two chance finger prints, one from the handle of the 'steel almirah' kept in the bedroom of the deceased and another from the inner side of the sliding glass window in the first floor of the house; which were marked as C1 and C2, respectively. She deposed that the photos of the chance finger prints were taken and got enlarged through PW37, the police photographer. PW38 testified that the finger print marked as C1 had tallied with the right thump impression of the 2nd accused, which was forwarded for comparison by the police authorities. Ext. P49 is the report issued by PW38 in this regard. She deposed that, on a Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -30- comparison of C1 (the enlarged photograph of the chance finger print) with the specimen impression of the right thump of the 2nd accused, (marked as X) there were eight identical points and there was no non-identical points between them. The evidence of PW37, PW38, PW39 and PW50 had supported the version of PW38 regarding tracing of the chance finger print and with respect to its comparison.
19. The evidence available on record, which was discussed in the foregoing paragraphs, need to be analysed and appreciated this court in order to decide the question as to whether the prosecution had succeeded in proving all the links in the chain of circumstances pointing towards the guilt of the accused, without any other hypothesis possible. For an easy analysis, we shall deal with the incriminating evidences available against accused 2 to 4, at the first instance.
20. Evidently, the presence of accused 2 to 4 in the locality of the place of occurrence during the night when the incident took place and also on the previous night, Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -31- remains proved. The evidence of PW2 is that he had witnessed the 3rd accused standing outside the compound of the house, at about 10.45p.m. on 07.11.2009. He also witnessed accused 2 and 4 came running out from the compound of the said house. Learned counsel for the appellants (accused 2 to 4) pointed out about the discrepancy in the testimony of PW2 with respect to his version that the accused 2 and 4 had jumped out the compound wall. But, despite the stiff cross examination, his consistent version was that he had seen the 3rd accused standing outside the compound and running away together with accused 2 & 4 from the spot. Credibility of PW2 in this regard cannot be disputed. Learned counsel for the 3rd accused contented that, no credibility can be attached to PW2, because he had not divulged about this to anybody in the house of the deceased, even after he came to know about the death of Karanavar. But it is to be noted that, in the testimony of PW2 he had mentioned that he spoke about this to PW4. But it is pointed out that PW4 has not revealed this to anybody, including the police authorities. Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -32- That by itself cannot be taken as a ground to discredit the version of PW2. The defence had disputed genuineness of the identification made by PW2 in the court. But the evidence is to the effect that, he had identified accused 2 to 4 before the police, during the course of the investigation. Learned counsel for the 3rd accused contented that, the investigating agency ought to have conducted a 'test identification parade' and in the absence of the same, the alleged identification at the police station cannot be accepted as evidence. It is contended that, when it is brought out in evidence that the witness had no previous acquaintance with the accused, the identification made for the first time during the trial, cannot be accepted as credible. In support of the above proposition the learned counsel for the 3rd accused had placed reliance on the decisions of the hon'ble Supreme Court in Kannan V. State of Kerala (1979) 3 SCC 319), Mohanlal Gangaram Gehani V. State of Maharastra (AIR 1982 SCC 839 = (1982) 1 SCC 700). Learned counsel had also placed reliance on another decision of the hon'ble Supreme Court Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -33- in Rameshwar Singh V. State of Jammu and Kashmir (AIR 1972 SC 102). The hon'ble apex court observed therein that, before dealing with the evidence relating to identification of the assailants it may be remembered that the substantive evidence of a witness is the evidence in court. But when the accused person is not previously known to the witness concerned, then the identification of the accused by the witness soon after the former's arrest is of vital importance, because it furnishes to the investigating agency an assurance that the investigation is proceeding on the right line, in addition to furnishing a corroboration of the evidence to be given by the witness later in court at the trial. Therefore it is held that, for the proper administration of justice it is a matter of great importance, both for the investigating agency and for the accused, that such identification is held without avoidable and unreasonable delay after arrest of the accused. We have to analyse the testimony of PW2, bearing in mind the circumstance under which he had seen the accused 2 to 4 on the night of the occurrence and also with due relevance to the date on Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -34- which the said accused were arrested. This Court need not give much emphasis to the non-revelation on the part of PW2 about witnessing of 3 unacquainted persons during the odd hours on the previous night. Even assuming that PW2 had not disclosed about this to PW4, the circumstances can be visualized. PW2 might have been afraid and hesitant to disclose such things immediately on knowing about the death of Karanavar, because he might have apprehended that the police may take him into custody for questioning. Regarding the identification, it is to be noticed that, the accused 2 to 4 were arrested only on 10.12.2009, after a long gap, that too after publishing look-out notices containing their photographs. It has also come out in evidence that, photographs of the accused were published in newspapers. Therefore no purpose would be served by conducting a 'test identification parade' at that time. However, it is evident that PW2 had revealed about this when he was questioned by the police, even before arrest of the accused 2 to 4. He had also testified about this in his statement given to PW32 Magistrate, under Section 164 of Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -35- Cr.P.C. The hon'ble Supreme Court in the decision in Vijayan V. State of Kerala (1999) 3 SCC 54), while dealing with the probability of accepting identification of unacquainted persons, observed that, a 'test identification parade' conducted after publication of the photographs of the accused in the newspapers and after showing the photographs to the witnesses not to be disbelieved. In the case at hand, the specific testimony of PW2 is that, he had seen all the 3 accused during the night of 07.11.2009 and that he had identified them thereafter at the police station. The witness identified all the three accused separately in the dock, during the trial. There is nothing to indicate that there is any ill-motive on the part of PW2 to falsely implicate accused 2 to 4 in the crime. Therefore we are of the considered opinion that the evidence of PW2 is credible and acceptable, to the extent that he had seen accused 2 to 4 at a place outside the compound wall of the residence of the deceased, during the night on 07.11.2009. The findings of the trial court in this regard need to be sustained.
21. Learned Senior counsel appearing for the 2nd Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -36- accused contented that, even if this court is inclined to believe the version of PW2, what he had deposed is that, he had seen the accused 2 to 4 near the house at about 10.45 p.m., on 07.11.2009. But the specific case of the prosecution is that, the murder and robbery were committed at around 1.00 a.m. on 08.11.2009. According to PW2, the accused 2 to 4 had ran away from the place at about 10.45 p.m. Therefore the testimony of the said witness cannot be taken as proof to arrive at a conclusion that the accused had entered the house of the deceased after 10.45 p.m and committed the offence at around 1.00 a.m. Per contra, learned Public Prosecutor contented that, the evidence of PW2 is only to the effect that he had seen accused 2 to 4 at about 10.45 p.m near to the place of occurrence and that the said evidence cannot be used to negative the possibility of the accused entering the house thereafter and committing the crime. In this regard it is to be taken note of that, none among accused 2 to 4 belonged to that area and no explanation is forthcoming from their side with respect to their presence near to the place of occurrence at Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -37- the odd time. However, this Court is of the considered opinion that the evidence of PW2 can be taken only to arrive at a conclusion that the accused 2 to 4 were present at the vicinity of the place of occurrence, during the night between 07.11.2009 and 08.11.2009.
22. Regarding the challenge against the identification of accused 2 to 4 by PW2, learned Public Prosecutor contended that, PW2 had identified accused 2 to 4 at the police station. There is no specific cross examination disputing the identification. He placed reliance on a decision of the hon'ble Supreme Court in Laxmibai and another V. Bhagwantbuva and others (AIR 2013 SC 1204) = (2013 KHC 4086). It is held that, there cannot be any dispute with respect to the settled legal proposition that, if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain by drawing his attention to that part of the statement which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -38- has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross examine a witness as regards the information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Therefore, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The learned Prosecutor further relied on another decision of the Hon'ble Supreme Court in Sheo Shankar Singh v. State of Jharkhand and Another ((2011) 3 SCC 654) = (2011 Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -39- KHC 4131) in order to contend that, failure to hold a test identification parade would not make the evidence of identification in court inadmissible. It is held therein that, the evidence of mere identification of the accused person at the trial for the first time, is from its very nature, inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered as a safe rule of prudence generally looked for corroboration of the testimony of the witness in court as to the identity of the accused who are strangers to them. But this rule of prudence is subject to exceptions. When, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such other corroboration. With respect to the identification parade at the stage of investigation, it is observed by the apex court that, there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade and that they do not constitute substantive evidence and Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -40- these parades are essentially governed by Section 162 of Cr.P.C. The settled legal positions as enumerated in the decisions supports the conclusions arrived by this court in the case at hand as mentioned above, and provides admissibility with respect to the evidence of PW2 to the extent he deposed before the court.
23. Another incriminating evidence against accused 2 to 4 is regarding the extra judicial confession made by the 2nd accused to PW10. As already discussed, the 2nd accused met PW10 at Padinjarethara in Wyanad District, along with accused 3 & 4. Accused No.2 disclosed about the incident to PW10 that, the accused had gone to the house of 'Madam' at Chenganoor and that her father-in-law was killed. When PW10 asked about the incident, it was narrated that, everything was preplanned with 'Madam' and accordingly they have entered the house through the doors kept opened by 'Madam'. It was further revealed that, after entering the bed room of Karanavar, the 3rd accused attempted to put chloroform, which was resisted, and then all the 3 had pressed the deceased on his bed, strangulated and Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -41- smothered him to death. He also told that they have taken the mobile phones, laptop and gold chain from his bed room. Thereafter chilly powder was spreaded in the said room. Testimony of PW10 is that, the 2nd accused made the statement in the presence of accused 3 & 4 and at that time the 3rd accused was wearing the 'Rudraksha bead chain', which the 2nd accused told as belonging to the deceased. Learned Senior Counsel appearing for the 2nd accused contended that, the evidence of PW10 with respect to the alleged confession is totally unbelievable. It is contended that there is no circumstance for the 2nd accused to make any such voluntary statement, to a person as that of PW10. It is pointed out that, even according to PW10 his acquaintance with the 2nd accused is not a story believable, and there is nothing to indicate that PW10 is a person capable of securing the trust and confidence of the 2nd accused or a person upon whom the 2nd accused can depend for any help. It is also contended that the extra judicial confession is a weak piece of evidence, before acting upon which the court must ensure that the same Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -42- inspires confidence and that it is corroborated by other evidence. Learned counsel for the 2nd accused had placed reliance on a decision of the hon'ble Supreme Court in Kala @ Chandrakala V. State through Inspector of Police ((2016) 9 SCC 337). Referring to a catena of decisions on the subject, it was observed that, the extra judicial confession requires great deal of care and caution before acceptance, that there should be no suspicious circumstances surrounding it. There has to be independent corroboration for placing reliance upon the extra judicial confession. The reliability of the extra judicial confession depends upon the veracity of the witnesses to whom it is made, that the witness must be unbiased and not even remotely enimical to the accused. One of the main decisions which was referred to in the above said context is, Sahadevan V. State of Tamil Nadu (AIR 2012 SC 2435). The hon'ble Supreme Court, after reiterating the settled principles illustrated the guiding precepts to be followed by the judicial mind, while dealing with veracity of the cases where the prosecution heavily relies upon an Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -43- extra judicial confession alleged to have been made by the accused. Those principles enunciated are;
"(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
Learned counsel for the 3rd respondent contended that, from the evidence of PW10 it is clear that he is a person engaged in some shady businesses and is not a person of integrity and character.
24. While analysing the evidence of PW10 it is to be noted that, he had stated about various phone calls made by the 2nd accused from the morning of 08-11-2009 onwards, when he was at Kannur and thereafter at Kozhikode and Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -44- afterwards when he was at Padinjarethara, Wayanad. The details of the phone calls between the 2nd accused and PW10, which was brought out in evidence, would indicate that there were 17 calls made on 08-11-2009 starting from 9.48 a.m. till 7.18 p.m. The tower locations of these calls would indicate that the telephone calls had originated in the locations of Calicut, Kalpetta in Wyanad and lastly from Padinjarethara in Wyanad district. The calls between 6.04 p.m. and 07.18 were from the tower location of Pandinjarethara and Manjoor in Wyanad district. The above fact would tally with the version of PW10 that accused 2 to 4 meet him at Padinjarethara on 08-11-2009 at about 8 p.m. Further, the testimony of PW10 is to the effect that, he got acquainted with the 2nd accused from Bangalore and he was introduced to him by somebody who is in the business of gold. However, in cross-examination, PW10 conceded that he is seeing accused No.4 for the first time on 08-11-2009. It remains trite that, extra judicial confession as such is a weak piece of evidence and can be accepted only with much care and caution. But it can be considered as an evidence Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -45- lending credence to other incriminating circumstances. It has come out in the evidence of PW10 that, the 2nd accused had contacted him on the said date for the purpose of arranging money to go to Bangalore. It is further deposed that the 2nd accused sought the help of PW10 either for selling or for pledging of the gold chain, which he found as worn by the 3rd accused. Testimony of PW10 is to the effect that, he found the 'Rudhraksha bead chain' with the 3rd accused, which the 2nd accused told as the chain belonging to the deceased. From all the above said factors, this court has to arrive at a conclusion that the testimony of PW10 is believable and can be accepted with credence. Eventhough the prosecution had placed reliance on the testimony of PW15 also, to the extent that the 2nd accused had confessed to him about the murder of the father-in-law of the 1st accused, on an elaborate analysis this court is not inclined to place much reliance or credibility on the testimony of the said witness, as an extra judicial confession. This is especially because the said witness had even failed to specify the place where such a statement was made and the Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -46- prosecution had failed to examine the persons who were stated to have been present at the time of making such statement.
25. On behalf of accused 1, 3 and 4, it was contended that, even assuming that the 2nd accused had confessed about the incident, the said evidence cannot be utilised to establish culpability of other accused. The said piece of evidence cannot be used as an incriminating circumstance against others, is the contention. In this regard, the question is whether the confession of a co-accused will affect the other accused being jointly tried along with the accused who made such confession. This is an aspect coming within the purview of Section 30 of the Indian Evidence Act 1872, which provides that, when more than one person is being tried jointly for the same offence and if a confession is made by one of the accused affecting himself and some other persons arrayed and if it is proved, the court may take into consideration of such confession as against the other person as well. Learned senior counsel appearing for the 1st accused had cited two decisions of the Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -47- honourable supreme court in this regard, Union of India v. Bal Mukund and others [2009 (12) SCC 161] and Pancho v. State of Haryana [2011 (10) SCC 165]. Referring to various earlier decisions on the point, it was observed that, "The proper way to approach a case is, first, to marshal the evidence against the accused excluding the confession and altogether from consideration and see whether, if it is believed, a conviction could be safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. The crucial expression used in Section 30 is, "the court may take into consideration such confession". It is observed that, the words implied that, the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis for conviction of a co- accused. It is further observed that, the confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with other evidence. The dictum emerging is clear that the confession of a co-accused cannot be relied solely for convicting the accused and it should be weighed on the basis of other incriminating materials available. Hence in the case at Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -48- hand, while considering the extra judicial confession proved through PW10 as against accused 1, 3 and 4, the said piece of evidence need to be evaluated on the basis of other incriminating evidence available against each of those accused.
26. As discussed in the previous paragraphs, the investigating agency had discovered MO1 laptop, MO2 digital camera, MO3 and MO4 mobile phones, MO5 and MO6 watches, which were articles identified by various witnesses as belonging to Karanavar. These articles were discovered on the basis of disclosure statements made by the 2nd accused, from various places like Kollur in Karnataka, Goa, Secunderabad in Andhra Pradesh. The witnesses examined to prove such discoveries have fully supported the prosecution and the testimony of PW49 had further corroborated those discoveries. MO19 gold ingot was recovered from PW18 based on Ext.P25 disclosure made by the 3rd accused. The testimony of PW18 is to the effect that the 3rd accused sold the 'Rudhraksha bead chain' to him and the gold contained in the chain was melted into Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -49- the ingot. Acceptance of the evidence regarding recoveries of the material objects were assailed by the accused raising various contentions. It is pointed out on behalf of the 3rd accused that, the MO19 gold ingot recovered is not proved to be made out of the gold contained in the chain in question. Pointing out to the evidence of PW18 it is contended that, purity of the gold ingot was stated to be 14 carrots, whereas the testimony of PW18 is that, the gold contained in the 'Rudhraksham bead chain' which he had purchased from the 3rd accused was of 22 carrots. Learned counsel had pointed out a decision of the hon'ble Supreme Court in Inspector of Tamil Nadu v. Bala Prasanna [2008 (11) SCC 645]. On the facts of the said case, the apex court observed that, since the jewellery had been melted and was recovered in the shape of ingot, it would be hazardous to come to the conclusion that the gold jewelery belonged to the deceased. On the facts of the said case, the observation was that, if the accused had killed the deceased and had stolen the jewelery, there is no reason as to why he had also not taken the year rings from the deceased. The Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -50- factual matrix of the case at hand is on a different situation and the observation in the cited decision cannot be considered as a dictum laid by the apex court.
27. Testimony of PW18 does not suffer from any infirmity with respect to the fact he deposed, that the 3rd accused had sold the chain in question at the jewelery shop of the former on 9.11.2009; and that he had melted the gold contained in the chain into MO9 gold ingot. The minor discrepancy with respect to purity of the gold will not in any manner affect credibility with respect to the testimony connecting the 3rd accused, to the extent that, after the incident he was found to be in possession of a valuable article belonging to the deceased, for which no acceptable explanation is forthcoming.
28. From the testimony of PW38, who had proved Ext. P49 report, it is brought out that, Ext.C1 chance finger print traced out from the handle of the 'steel almirah' found in the room of the deceased had tallied with the right thump impression of the 2nd accused (marked as X). Much arguments were advanced by the senior counsel appearing Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -51- for the 2nd accused, against the acceptability of the said evidence. It was pointed out that, there was no mahazar prepared for identifying or developing of the chance finger print from the scene of occurrence. It was also argued that, Ext. P17 Inquest Report or Ext. P18 Scene Mahazar prepared on 8-11-2009 itself do not contain any mention about the tracing of any chance finger print. In Ext. P18 there is mention about tracing of a palm print by the Finger Print Expert from the glass window on the upstair portion of the house. So also, there is mention in Ext. P17 Inquest Report about opinion of the finger print expert regarding the availability of a chance finger print from the handle of the almirah found in the room of the deceased. It is further contended that, the Investigating Officer was keeping C1 and C2 developed finger prints till the arrest of the 2nd accused and therefore the comparison alleged to have been made has no sanctity. The expert opinion was collected only at a later stage and there is no proof regarding the expertise of PW30 for doing the comparison, is the argument. Learned Senior Counsel had cited various Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -52- decisions of the Hon'ble Supreme Court dealing with the evidence of finger print comparison. In Musheer Khan and another v. State of M.P. ((2010) 2 SCC (Cri.) 1100) it is observed by the apex court that, the evidence of a finger print expert is not a substantive evidence and such evidence can only be used to corroborate some other items of substantive evidence, which are otherwise on record. In Prakash v. State of Karnataka [(2014) Crl. L.J. 2503], the Hon'ble Supreme Court observed that, the appropriate course left for the Investigating Officer was to approach the Magistrate for necessary orders in accordance with Section 5 of the Identification of Prisoners' Act, 1920 and it would be eminently desirable that the finger prints were taken under orders of the Magistrate. In yet another decision in Mahmood v. State of U.P. [1976 (1) SCC 542= (1976 KHC 648)], the apex court observed that, it would be highly unsafe to convict one on a capital charge without independent corroboration, solely on the bald and dogmatic opinion of an expert who was not given any reason to support his opinion nor had shown that he had Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -53- acquired special skill, knowledge and experience in the science of identification of finger prints.
29. The evidence in the case at hand, while analysed on the basis of the settled precedents, we notice that there is acceptable evidence with respect to tracing of the chance finger print, proved through testimonies of PW37 (police photographer), PW38 (finger print expert) and PW39 (scientific Assistant) who were present at the scene on 8-11- 2009. Oral testimony of PW38 had fortified that, the photographs of C1 and C2 chance finger prints were taken from the scene and it was developed and kept in the custody of the Investigating Officer, with proper identification marks. She further deposed that, the Investigating Officer had forwarded those photographs for comparison along with the thump impression of the 2nd accused, obtained after his arrest. Ext. P49 report given by PW38 would prove that 8 ridges in the chance finger print were found to be identical with that of the right thump impression of the 2nd accused ; and the opinion is that the finger impression developed, marked and photographed Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -54- from the handle of the 'steel almirah' is only that of the right thump impression of the 2nd accused. As laid by the hon'ble Supreme Court, the only question to be analysed is whether the expert evidence available in this respect is corroborative of other incriminating evidence available against the 2nd accused. We can only give an answer on the positive in that respect.
30. Now we will proceed to analyse the question as to whether the circumstantial evidence available on record is sufficient and strong enough to sustain a conviction against the 1st accused. The prosecution case is that the murder and robbery were committed pursuant to a conspiracy hatched between accused 1 and 2 and between the 2nd accused and accused 3 and 4. Specific case of the prosecution is that, the 1st accused had decided to do away with her father-in-law because of her enmity towards him, due to the cancellation of the settlement of immovable properties made in favour of her husband, herself and their child; and because he was creating obstructions in her extravagant spendthrift life and her illegitimate Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -55- relationships with others. In order to prove those allegations, the prosecution had brought out in evidence various circumstances. It is proved that the 1st accused had financial transactions with many persons and she had borrowed money from PW7. So also the evidence of PW27 is that the 1st accused had borrowed a sum of Rs. 1,00,000/- from her, which she failed to repay; and the payment was settled by Karanavar. Exts. P10, P10(a), P11, P11(a) and P11(b) are documents evidencing about the financial transactions she had with PW27. The investigating agency had recovered Ext. P5 series receipts with respect to pledging of gold ornaments in the name of 'Lakshmi', who is the sister of PW5. Those documents were recovered from a shelf in the bedroom of the 1st accused. It is pertinent to note that, despite thorough search made, no other gold could be recovered from the house or from the possession of the 1st accused. The above aspects would indicate that the 1st accused had borrowed money from various persons and also pledged her gold ornaments for meeting her expenses. It remains also proved in evidence that the deceased had Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -56- restrained PW27 from giving any more money to the 1st accused. From the evidence adduced by the prosecution and based on various materials produced, it stands proved that the 1st accused had a spendthrift life and she was in acute need of money for her extravagant life.
31. There is evidence to the effect that the bank locker belonging to the deceased was opened and the articles contained therein were recovered, during the course of the investigation. One among the documents recovered is Ext. P9 series photographs. Those were the photographs of the 1st accused along with PW17. MO7 series photographs were recovered from the locker in the 'Steel Almirah' kept in the bed room of the 1st accused. It contained 5 photographs of PW9. PW17 is an Actor in television serials. He deposed that the 1st accused had called him from abroad during the year 2005 and they acquainted through constant chatting on Internet. His testimony is to the effect that the 1st accused had given him one 'i-pad' as birthday gift and that the 1st accused had visited him at Munnar at a shooting location. At that time Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -57- she gave him a Laptop, as presentation. Thereafter they met at Thiruvananthapuram as well as in Madras. He conceded of having taken photographs with the 1st accused. PW9 is a resident of Cheriyanad and is a person aged 33 years at the relevant time. He deposed that he was a friend of deceased Karanavar and is a frequent visitor in the house of the deceased. He is the person who engaged PW5 as Driver in the house of the deceased. He conceded that his sister, PW5, was working in a 'STD Booth' run by him. Ext.P84 is a document recovered from the Almirah kept in the bedroom of the 1st accused. It is a letter written by a person named Siby Joseph. The said letter seen kept in a postal cover was marked as Ext.P84(a). Ext.P84(a) letter is dated 18.9.2007. The contents of the letter is to the effect that, the author of the letter is taking responsibility of the pregnancy of the 1st accused. It further indicates about the consent given to the 1st accused to undergo medical termination of the pregnancy. Ext.P82 is another document recovered from the locker in the said Almirah. It is an attested copy of the parentage certificate (test result) Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -58- issued by an accredited 'DNA Paternity and Forensic Test Laboratory' situated in Washington. It would indicate that a DNA comparison of the blood sample of Binu P. Karanavar (husband of 1st accused) and Aiswarya P. Karanavar (child of 1st accused) was conducted, during June 2005. The certificate would indicate that Binu P. Karanavar is the biological father of Aiswarya P Karanavar. It is indicated in the certificate that, identity of both the above said persons are not verified at the test centre. Oral evidence of PW1, PW3, PW4, PW5 and PW7 would indicate that, Karanavar had mentioned to them with respect to the illegitimate relations of 1st accused and also about her extravagant life and over spending nature. There exists a dispute as to whether the 1st accused had knowledge about execution of Ext.P8 cancellation deed. PW9 is a witness in Ext.P7 settlement deed. He also testified about cancellation of the settlement deed. He conceded that the amount borrowed by the 1st accused from PW27 was repaid by Karanavar in his presence, and he had signed as a witness in ExtP11 document prepared for that purpose. He had also identified Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -59- MO1 to MO6 as articles belonging to Karanavar. He further conceded that the 1st accused used to call him over her mobile phone. Even though he had turned hostile to the prosecution, in the cross-examination he conceded that there were 38 calls between his mobile phone and the mobile phone used by the 1st accused, between 7.11.2009 and 8.11.2009. Ext.P60 records of the call details of the telephone of the 1st accused would fortify the above facts. It is also pertinent to note that, there were no Bank Accounts in the name of the 1st accused. Evidence of PW5 would indicate that, at the request of the 1st accused he had purchased sleeping pills and one bottle whisky on the evening of 6.11.2009. From Ext.P3 Mahazar it is evident that 5 remaining unused tablets were recovered from the bed room of the 1st accused. All the above narrated circumstances would only lead to an inference that the motive put forth by the prosecution against the 1st accused, for eliminating Karanavar from the earth, stands established.
32. It has come out in evidence that on the morning of Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -60- 7.11.2009, PW6 saw the outside grill and door situated on the backside, which she had locked on the previous night, remain opened. When PW6 asked about this the 1st accused instructed her not to tell about this to the Karanavar, because he may scold her. According to PW6, when she woke up on 8.11.2005, she found the outer door and grills in the kitchen as well as the front door of the house unbolted from inside and kept opened. The above version of PW6 was corroborated through testimony of PW5. Both the witnesses as well as PW2 had deposed that, they have not heard the watch dog in the house barking during the previous nights of these days. PW2 deposed that, despite he made noise outside the compound wall, at the point where the canal is situated, there was no response from the watch dog. In the statement given by the 1st accused, when questioned under Section 313 Cr.P.C., she conceded of having kept the doors opened from inside, during these days. She conceded of having met the 2nd accused inside the house during the night of 6.11.2009. According to her, they discussed on some business matters, which can be Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -61- done through internet. She stated that, the 2nd accused was invited to her bedroom on the night of 7.11.2009. According to her, while the 2nd accused was inside her bedroom, he contacted with his driver over telephone. She further stated that, after the 2nd accused had left the room, he called her from another mobile phone and instructed not to get out of the room, because somebody in the house had seen him. Subsequently the 2nd accused again called her and informed that, while he was going out of the house, it is suspected that, somebody in the house had seen him. He informed her that the call is made from the mobile phone of his driver. According to the 1st accused, she made repeated calls back to the said telephone and made enquiries about the matter. At that time, the 2nd accused instructed her that she should not reveal about his visit to anybody. According to her she came to know about the death of Karanavar only on the next day morning. Her statement is to the effect that, when she realised about death of her father-in-law, she called the 2nd accused and informed that she will reveal the facts to the police. But the Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -62- 2nd accused threatened her that if she reveal the name of the 2nd accused, she will also be booked. The 2nd accused threatened her repeatedly demanding not to reveal about his visit to the house.
33. Learned senior counsel appearing for the 1st accused contended that, there is absolutely no motive for the 1st accused to conspire with the other accused for murder of her father-in-law. He pointed out various circumstances which would indicate that, the deceased was meeting all financial needs of the 1st accused and that he used to purchase dress materials and food for the 1st accused and he used to take her along with other family members at different places. According to learned Senior Counsel, there are various indications in the evidence to show that the deceased was having a loving and cordial relationship with the 1st accused. Further contention was that, there is absolutely no evidence available to show that, the 1st accused was aware about execution of Ext.P7 settlement deed or about the execution of Ext.P8 cancellation deed. Contention is that, if the 1st accused had Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -63- any knowledge about cancellation of the settlement made in favour of herself, her husband and the child, no purpose would be achieved by killing her father-in-law, because on his death she will be derived with only a due share among others. According to the Senior Counsel, her version before the court that she had no knowledge about the murder, despite her inviting the 2nd accused to the house during the night, is a possible and plausible explanation, which are the real and true facts. From the entire circumstances brought out in evidence, we are not persuaded to accept the the above said contention. As discussed in the forgoing paragraphs, various circumstances brought out in evidence would only lead to the conclusion that, the 1st accused was in dare need for money and that she was not having any amount either in the bank account or in her possession, nor there was any ornaments available with her. Documents recovered from the house would reveal that, even a very small piece of gold ornament was pledged at her instance on 7.10.2009. Ext.P5(a) would reveal that a gold ornament having the weight of only 2.00 grams was pledged for an Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -64- amount of Rs.2000/-, on the said date. The circumstantial evidence brought out by the prosecution would reveal that, the 1st first accused was a lady of flirting nature, having illegitimate relationships with outsiders, when she remained as the legally wedded wife of the son of Karanavar and the mother of a small girl child. She conceded of having invited the 2nd accused during the odd hours of the night to her bed room on two days, by clandestinely keeping the outer doors of house opened. Evidence is to the effect that, she pretended ignorance about the death of Karanavar, on the morning of 8.11.2009. At the same time, she immediately propagated that valuable articles (MO1 to MO6) and an amount of Rs.8,000/- belonging to Karanavar was lost from the house. The circumstances would only lead to the inference that, there was a pre-plan and preparation for committing the murder, with the connivance and knowledge of the 1st accused. After the dead body was seen in the bed room of Karanavar, in order to create an impression that it was a murder committed for gain, she gave propaganda with respect to the loss of valuable articles. The Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -65- explanation given by the 1st accused with respect to keeping of the front and back doors of the house opened during night, is not at all acceptable and probable. Further, her pretended ignorance about the incident of murder happened in the bed room of Karanavar, which is situated adjacent to her bed room, is also not acceptable, especially in view of the fact that the murder had taken place at a time very proximate to the time which she had conceded that the 1st accused had came to her bed room, and they spent time discussing about the so called business activities. The evidence on record would reveal that, no other inmates in the house, except the 1st accused and her child is sleeping in the ground floor of the house where bedroom of the deceased is situated. It has also come out in evidence that, the 1st accused was continuously contacting the 2nd accused over mobile phone till 8.17 a.m. on 8.11.2009.
34. In the extra-judicial confession made by the 2nd accused to PW10, involvement of the 1st accused and the pre-planning made between them was revealed. That piece Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -66- of evidence is acceptable as a confession made by the co- accused, who is jointly tried for same offence, coming within the purview of Section 30 of the Evidence Act. Learned senior counsel had contended that, the circumstantial evidence adduced by the prosecution is so weak that all the links in the chain of circumstances with its sequences of instances are not proved and that the conviction based on those circumstantial evidence by the trial court cannot be accepted and confirmed. In support of such a contention, learned senior counsel appearing for the 2nd accused had cited a decision of the hon'ble Supreme Court in Gambhir vs. State of Maharashtra (AIR 1982 (SC) 1157). It is held therein that, when a case rest upon circumstantial evidence, such evidence must satisfy three tests; (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused (3) the circumstances taken cumulatively should form a chain so complete that, there is no escape from the Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -67- conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence, in order to sustain a conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence. Learned counsel contended that, the motive alleged is very weak, because what was recovered as the articles robbed is only of negligible value. The amount of Rs.8000/- alleged to have been robbed was not recovered and there is no evidence available to prove that robbery of the amount. The laptop, mobile phones and camera recovered are of very negligible value. Recovery of the gold ingot suffers from many infirmities, is the contention. Learned counsel had placed reliance on the very same decision in Gambhir's case (cited supra) to point out that, the hon'ble Supreme Court held on the facts that, the motive alleged is the robbery of articles to the tune of Rs.7000/-. But curiously enough not a single item of cash or ornaments Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -68- was touched. It is too much to assume that the accused would commit murder. But in the case at hand, as narrated above, the circumstances proved in evidence would lead to an inference that robbery alone was not the motive and the murder is a result of the conspiracy hatched between the 1st and 2nd accused, to implement an intention of the 1st accused to do away with the deceased, because of other reasons as mentioned above.
35. The appellants contended that, the evidence regarding the comparison of the finger print with that of the thumb impression of the 2nd accused as well as the confession made by the 2nd accused to PW10 cannot be attached with much evidentiary value. But the learned Public Prosecutor would contend that, when PW10 states on oath about the confession made to him by the 2nd accused, it is binding on all the accused and it has got much evidentiary value for proving the culpability of all the accused. He had cited a decision of the hon'ble Supreme Court in Narayan Singh and others vs. State of M.P. (AIR 1985 SC 1678 = 1985 KHC 691). It is held therein Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -69- that the presumption that a statement constituting an extra judicial confession is a very weak type of evidence, is a wrong view . It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend upon the nature of the circumstances, the time when the confession was made, and the credibility of the witnesses who spoke to such a confession. If the court is unable to find anything which could lead to the conclusion that the independent witnesses are not telling the truth, the evidence of extra judicial confession lends support to other evidence. He also relied on a decision of the hon'ble apex court in Gura Singh vs. State of Rajasthan (AIR 2001 (SC) 330 = 2001 KHC 1019). It is held that, the extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for commission of the crime alleged. Despite the inherent weakness of the extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -70- circumstances which tend to support the statement. Extra judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Regarding acceptance of the confession of a co-accused, learned Public Prosecutor had placed reliance on a decision of the hon'ble Supreme Court in Nathu vs. State of UP (AIR 1956 SC 56 = 1956 KHC 368) . Referring to the policy decision of the apex court, it is held that, such statements were not evidence as defined in section 3 of the Evidence Act, that no conviction could be found thereon. But that, if there was other evidence on which a conviction could be based, they could be referred to as lending assurance to that conclusion and for fortifying it. Therefore, extra judicial confession against a co-accused is not a substantive evidence and could only be taken into consideration if there is other independent evidence on which the conviction could be based. According to the Public Prosecutor, connecting links of the circumstantial evidence proved against each of the accused will get support from the extra judicial confession, which is having evidentiary value.
Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -71-
36. Learned Public Prosecutor had drawn our attention to the evidence of PW3, in order to raise a contention that, the statement alleged to have been made by Karanavar about his apprehension that the 1st accused may kill him, can be taken as an item of evidence disclosed by the person who died subsequently with respect to the circumstances which lead to his death. According to the Public Prosecutor, the evidence of PW3 would definitely contribute to a large extent regarding the motive of the accused. He placed reliance on a decision in Sooraj vs. State of Kerala (1994 (1) KLT SN 3 = 1994 KHC 215). Referring to another decision of the hon'ble Supreme Court, it is pointed out that, the interpretation with respect to the expression "any of the circumstances of the transaction which resulted in his death" is wider in scope than the expression "the cause of his death". It is held that, the motive factor available in the statement of the deceased cannot be discarded as a remote circumstance, if it is otherwise intimately connected with the circumstances of Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -72- the transaction which resulted in his death. It is held therein that, the deceased need not say or apprehend that he would be killed by the person whose conduct was referred to in his statement. At the time of giving the statement, there was no chance of having any inclination in the mind of the deceased that such person would do away with his life, for the circumstances disclosed by him. Such circumstances shall only be intimately connected with the circumstances of the transaction which resulted in his death. Per contra, learned senior counsel appearing for the 1st accused contended that a general expression indicating the fear or suspicion will not amount to a circumstance of the transaction which resulted in death. It is contended that the general expressions suspecting a particular individual, not directly related to the occasion of death, are not admissible. Reliance was placed in this respect on a decision of the hon'ble Supreme Court in Babubhai Bhimabhai Bokhiria vs. State of Gujarat ((2014) 5 SCC
568). It is held that, a necessary condition of admissibility under the section is that, the circumstance must have some Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -73- proximate relation to the actual occurrence. The phrase 'circumstances of the transaction' is a phrase that no doubt conveys some limitations. It is not as broad as analogous to the use in 'circumstantial evidence', which includes evidence of all relevant facts. The circumstance must have some proximate relation to the actual occurrence if the statement of the deceased is to be admissible under Section 32(1) of the Evidence Act. On a perusal of the testimony of PW3 with respect to the words spoken to by the deceased we are of the opinion that the statement does not relates to the cause of his death or the circumstance of the transaction which resulted in his death. Therefore we are not inclined to accept the contention of the Public Prosecutor in this regard.
37. Argument advanced on behalf of the accused assailing the acceptance of the circumstantial evidence regarding absconding of the accused Nos.2 to 4, is worth mentioning. The evidence adduced from the call history with respect to the mobile telephones of accused Nos. 2 and 4, as well as the oral evidence of PW10, PW11, P12 PW15, Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -74- PW21, PW30 etc. would clearly reveal that accused Nos. 2 to 4 were travelling together after the incident, on 8th and 9th November 2009 and further they were seen together at Kollur in Karnataka State at the time of their arrest. It is contended that, the fact that accused Nos.2 to 4 were seen together after the incident, cannot be taken as a circumstance pointing out to the culpability of the accused. Learned Senior Counsel appearing for the 2nd accused contended that, mere fact of abscondance by itself does not necessarily lead to a firm conclusion of guilty mind. He cited a decision of the hon'ble Supreme Court in Matru alias Girish chandra vs. State of Uttar Pradesh (1971 SCC (Crl) 391) in which it is held that, even an innocent man may feel panicky and will try to evade arrest, when wrongly suspected of a grave crime, such is the instinct of self preservation. It is held that, the act of absconding is no doubt a relevant piece of evidence to be considered along with other evidence, but its value would always depend upon the circumstances of each case. Normally the courts are disinclined to attach much importance to the Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -75- act of absconding, treating it as a very small item in the evidence, for sustaining the conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence, which must admit of no other reasonable hypothesis than the guilt of the accused. Learned counsel appearing for the 4th accused had cited another decision of the hon'ble Supreme Court in Sujit Biswas vs. State of Assam (AIR 2013 SC 3817 2013 = KHC 4435), wherein the legal principle settled in Matru alias Girish chandra's case cited above was reiterated. She had also cited a decision of this Bench itself in Yohannan @ Biju vs. State of Kerala (2016 (4) KHC
881) wherein we have followed Sujit Biswas's case (supra), in order to hold that, on the facts of the said case the abscondance of an accused by itself does not necessarily lead to a firm conclusion about the guilty mind. Yet another decision of this court in Sasidharan vs. State of Kerala (2005 KHC 2114 = 2006(1) KLT SN 59) was cited in order to contend that, the subsequent condition of the accused and his suspicious conduct by itself cannot be Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -76- found him as guilty of the offence. It is held that, the mere suspicious conduct of committing suicide cannot be considered as an act of guilt. When there is no other reliable circumstance to connect the accused with the crime, the attempt to commit suicide by itself cannot be taken a circumstance to commit murder. But in the case at hand, it is to be noticed that, accused Nos.2 to 4 were found together at different places after the incident. Further, there is discovery of the articles MO1 to MO6. All the circumstances would lead to the inference that, various connecting links in the chain of circumstance, which point out to culpability of the accused, stands corroborated. In this regard, most importantly, the presence of the accused 2 to 4 near to the house of the deceased during the night on the date of the incident, which corroborates with the other circumstances pointing out their involvement in the crime, stands established.
38. On behalf of the 2nd accused it is contended that, the evidence with respect to the call details of the mobile phones produced by the prosecution does not satisfy the Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -77- requirements as contemplated under section 65B of the Indian Evidence Act; and as such those records cannot be admitted in evidence. It is contended that the certification contained in the documents does not satisfy the requirements under sub section (4) of section 65B, with respect to which elaborate consideration and guidance given by the hon'ble Supreme Court in Anvar vs. Basheer 2014 (4) KLT 104 (SC). It is pointed out that, the certification is not to the extent of properly identifying the electronic record containing the statement and it is not describing the manner in which it was produced. It is further pointed out that, the particulars of the device involved in the production of the electronic record is not shown in the certification. In this regard it is necessary to verify whether the certification contained in P54 to P61 documents are proper or not. The certificate endorsed in the said documents is as follows:-
"certified that this is true data as defined in section (2)
(o) of the Information Taking Act 2000 fed into the computer and maintained by the idea cellular, to store and identify process and information and it satisfies Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -78-
the conditions stipulated in section 65B of the Indian Evidence Act 1872."
PW42, 43 and 44 had deposed that the data produced were stored in the server of the respective service provider company and that those data were stored in the main server computer maintained and operated by those witnesses. We are of the considered opinion that the certificate mentioned above would clearly identify the electronic record as well as the particulars of the device involved in the production of such electronic records. Hence we are not inclined to accept the contention of the appellant regarding admissibility of such evidence, under the provisions of section 65 B of the Evidence Act.
39. While summing up the appreciation of evidence and on analysis of the circumstances connecting each of the accused with the crime, we are convinced that all the links in the chain of circumstances established in evidence would lead only to the conclusion that the deceased was murdered based on a conspiracy hatched between the 1st and 2nd accused and between the 2nd accused and accused Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -79- 3 & 4, in order to achieve the common object of doing away with the deceased and committing robbery of the valuable articles. In furtherance of the said common intention, the accused 2 to 4 had trespassed into the house of the deceased and committed murder of Karanavar and robbed his valuable articles.
40. Learned counsel appearing for the 4th accused contended that, there is no connecting links of evidence pointing out his guilt, apart from the evidence that he was seen in the company of accused Nos. 2 and 3 on 8th and 9th of November, 2009 and also at the time of their arrest on 11.12.2009. It is pointed out that, there is no recovery effected from the 4th accused and that there is no evidence that he was seen in possession of any of the articles belonging to the deceased. It is contended that the explanation given regarding the use of his mobile phone by the 2nd accused, is to a great extent convincing. It is specifically pointed out that the evidence of PW2 that he had seen the 4th accused along with the 2nd accused, outside the compound of the house, at about 10.45 p.m. on Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -80- 7.11.2009, will not by itself connect the said accused with the incident and such circumstantial evidence cannot be considered as proof. But this court is of the considered opinion that, the presence of the 4th accused in the company of accused 2 and 3, all along after the incident, at different places; and the fact that the 2nd accused made confession to PW10 in the presence of the 4th accused, as well as the fact that several phone calls were made from the mobile phone of the 4th accused to the 1st accused as well as to other witnesses, would only lead to the inference that the 4th accused were also participating in the crime and is acting jointly with others in prosecution of the common intention shared by all of them.
41. Counsel appearing for the 3rd accused had also raised a specific contention that, there is no evidence regarding usage of any mobile phone belonging to the 3rd accused. It is further pointed out that evidence of PW2 would reveal that the 3rd accused was standing outside the compound wall of the house and that there is no evidence to show that he had entered the house of the deceased and Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -81- participated in any act in which the deceased was murdered. It is evident that, in the confession statement given by the 2nd accused to PW10, each and every overt acts of all the three accused for murdering Karanavar was explained. Further, the accused 3 and 4 has not given any explanation against the incriminating circumstance in which they were seen in the company of the 2nd accused during the night in the vicinity of the house, prior to the incident, despite the fact that they are residents of far away places like Kuttikattukara and Kodudngallur. It is also evident from the tower locations of the mobile phone calls traced out that, they were together in the vicinity of the place of occurrence, after the incident and that they had travelled together to various places like Perumbavoor, Wynad, Palakkad, kollur and Selam etc.
42. From all the above mentioned circumstances, this court is of the opinion that the prosecution was successful in proving the various connecting links in the chain of circumstances, through convincing evidence, which would lead to the guilt of all the 4 accused in the crime. We do Crl. Appeal Nos. 1131, 1370, 1448 & 1633 /2010 -82- not find any infirmity with the conclusions and findings arrived by the court below in holding that all the accused were guilty of the offences alleged.
43. In the result, we are convinced that the conviction imposed by the court below under various offences, against all the four accused, are sustainable. We do not find any cogent reason to interfere with the sentence imposed by the trial court.
Resultantly, the appeals fail and they are hereby dismissed.
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C.K. ABDUL REHIM, JUDGE.
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B. SUDHEENDRA KUMAR, JUDGE.
AMG/DL/ani/Pmn True copy P.A. to Judge