Abdul Khader.A.M @ Khadar vs State Of Kerala on 16 June, 2025

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Kerala High Court

Abdul Khader.A.M @ Khadar vs State Of Kerala on 16 June, 2025

These appeals arise from S.C.No.654 of 2018 on the files of the Court of Sessions, Kasaragod Division. Although there were four accused in the case, the second accused absconded and the fourth accused became an approver. Accused 1 and 3 alone, in the circumstances, faced the trial. The Court of Session convicted the first accused and acquitted the third accused. Crl.A.No.827 of 2023 is preferred by the first accused challenging his conviction and Crl.A.No.943 of 2023 is preferred by the State challenging the acquittal of the third accused.

2. Thambayi, a Hindu woman, had been looking after Crl Appeal Nos.827 & 943 of 2023 4 2025:KER:41744 the children in a Muslim family for a long time. Over the years, she embraced Islam and began a new chapter of her life under the name Subaida. When the said children grew up, Subaida began living independently in a house built in a place called Ayampara Chekkipallam. On 19.01.2018, Subaida did not respond to calls from the household where she previously worked. When one of the children she looked after went to her house in search of her, it was observed that her phone was ringing inside, even though the house was seen locked from outside. Upon receiving the said information, the Sub Inspector of Police, Bekal, came to the house of Subaida and entered the house by breaking open the kitchen door. On entering the house, the Sub Inspector of Police found the dead body of Subaida lying therein with her face, hands and legs, bound with pieces of cloth.

3. A case was registered suo motu by the Bekal Police on that information under Section 302 of the Indian Penal Code (IPC). The investigation revealed that Subaida was murdered by the accused in an attempt to rob her of her gold ornaments. A final report was accordingly filed in the case. The case, as outlined in the Crl Appeal Nos.827 & 943 of 2023 5 2025:KER:41744 final report, is that the accused, in furtherance of their common intention to commit the murder of Subaida and to rob her of her gold ornaments, proceeded to her house at around 1:30 p.m. on 17.01.2018 in a car bearing registration number KL-14-S-9486. Upon reaching the house, accused 3 and 4 remained in the car, while accused 1 and 2 entered the house under the pretext of making an enquiry with Subaida about renting a house through her. While Subaida placed the refreshments that she had prepared for them on the table in the course of their conversation, the second accused covered her face from behind with a black cloth containing a chemical substance, while the first accused restrained her by holding her hands. When Subaida became unconscious, accused 1 and 2 laid her on the floor, removed the gold ornaments she was wearing, and bound her hands, legs, and face with pieces of cloth, in such a manner that her nose and mouth were completely covered. Thereafter, when they came out of the house, accused 3 and 4 who were waiting outside in the car, drove them to Kasaragod. It is alleged in the final report that the stolen gold ornaments were later sold and the sale proceeds were appropriated by the accused. Crl Appeal Nos.827 & 943 of 2023 6 2025:KER:41744

4. Accused 1, 2 and 4 were arrested and the third accused had surrendered before the Jurisdictional Magistrate during investigation. After the final report, while in custody, the fourth accused preferred an application before the concerned Chief Judicial Magistrate expressing his desire to be an approver in the case. The Chief Judicial Magistrate, on the said application, after recording statement of the fourth accused, tendered pardon to him on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. The fourth accused, thus, became an approver.

5. Later, when accused 1 and 3 were committed to trial, the Court of Session framed charges against them under Sections 120B, 449, 302 and 397 read with Section 34 IPC. Accused 1 and 3 pleaded not guilty to the charges. The prosecution, in the circumstances, examined 45 witnesses as PWs 1 to 45 and proved through them 122 documents as Exts.P1 to P122. MOs 1 to 52 are the material objects in the case. Exts.D4 to D8 are the case diary statements of PW6 proved by the defence during the examination of the prosecution witnesses. On a consideration of the said materials, Crl Appeal Nos.827 & 943 of 2023 7 2025:KER:41744 the Court of Session found the first accused guilty of the offences punishable under Sections 452, 394 and 302 IPC, convicted him for the said offences and sentenced him to undergo imprisonment for life and pay fine for the offence punishable under Section 302 IPC, rigorous imprisonment for ten years and pay fine for the offence punishable under Section 394 IPC and rigorous imprisonment for five years and pay fine for the offence punishable under Section 452 IPC. Default sentences were also passed against the first accused. The third accused was however acquitted. As already noticed, the first accused is aggrieved by his conviction and the State is aggrieved by the acquittal of the third accused.

6. Heard Adv.P.Rakesh Thamban, the learned counsel for the first accused, Adv.Kodoth Sreedharan, the learned counsel for the third accused and Smt.Ambika Devi, the learned Special Public Prosecutor.

7. The prosecution has not adduced any direct evidence to prove the occurrence alleged in the case. Instead, the prosecution relied on circumstantial evidence to establish the occurrence. It is based on the circumstances brought on record by Crl Appeal Nos.827 & 943 of 2023 8 2025:KER:41744 the prosecution through its witnesses that the Court of Session found the first accused guilty of the offences. The learned counsel for the first accused has made elaborate submissions, assailing the factual findings rendered by the Court of Session in this regard. Since there is no direct evidence to prove the occurrence as alleged by the prosecution, the essence of the submissions made by the learned counsel was that the circumstances proved in the case are not sufficient to establish the complicity of the first accused in the crime. Per contra, the learned Special Public Prosecutor supported the impugned decision insofar as it relates to the conviction of the first accused in the case and argued that the reasons stated by the Court of Session to acquit the third accused are vitiated by serious errors of facts and law. According to the learned Special Public Prosecutor, the said decision, insofar as it relates to the acquittal of the third accused, calls for interference in the appeal, or otherwise, there would be serious miscarriage of justice. The learned counsel for the third accused contended that the view taken by the Court of Session on the facts and evidence to acquit the third accused, cannot be said to be a view which is not possible or at least plausible. It was Crl Appeal Nos.827 & 943 of 2023 9 2025:KER:41744 therefore argued by him that the decision of the Court of Session, insofar as it relates to the third accused, does not call for interference in the appeal.

8. The points that arise for consideration are: (i) whether the evidence adduced by the prosecution establishes beyond reasonable doubt that it was the first accused and another who caused the death of Subaida and robbed her of her gold ornaments; (ii) if so, the offences if any, committed by the first accused and the sentences to be passed against him; (iii) whether the decision acquitting the third accused calls for interference in appeal.

9. Points (i) & (ii) : In order to adjudicate the points, it is necessary to refer to the relevant evidence in the case. The witness examined as PW1 is the approver. PW1 identified accused 1 and 3 in court, after affirming that he had previous acquaintance with them as they all hail from the same place. It was deposed by PW1 that about a week prior to the occurrence, he along with accused 1 to 3 went to Kannur in a white i20 car bearing registration number KL-60-K-1111 taken on rent by the second accused to meet Crl Appeal Nos.827 & 943 of 2023 10 2025:KER:41744 one Jishnu, who owed some money to the third accused; that the second accused was driving the car then; that the car dashed against an Activa Scooter on their way and that since the car and accused 1 and 3 were detained by the police for having caused damage to the Activa Scooter, PW1 along with the second accused had to arrange a sum of Rs.20,000/- to compensate the owner of the Activa Scooter to get the car as also accused 1 and 3 released. It was deposed by PW1 that upon the car being released, all of them went to a house at Periya on 16.01.2018 where the first accused had earlier worked, in order to raise funds to repay the amount arranged to compensate the owner of the Active Scooter and also to meet the expenses for repairing the car in which they were travelling. It was deposed by PW1 that as the house to which they proceeded was found locked then, while making enquiries about the residents therein, they happened to meet Subaida, who was residing in the neighbourhood. It was deposed by PW1 that they pretended to Subaida that they are looking for a house to be taken on rent; that Subaida then showed them a vacant house in the locality and introduced to them a person named Umbu who is looking after a few Crl Appeal Nos.827 & 943 of 2023 11 2025:KER:41744 houses, including the vacant one, on behalf of its owners and that in the course of the said conversation, they noticed that Subaida was wearing a pair of earrings, a pair of bangles and also a chain. It was deposed by PW1 that on the following day around noon, they proceeded again to her house in a swift car bearing registration number KL-14-S-9486 taken on rent by the third accused and upon reaching her house, PW1 along with the third accused remained in the car, while accused 1 and 2 entered the house and they were carrying, at the relevant time, a small bottle and a towel. It was deposed by PW1 that about fifteen minutes thereafter, accused 1 and 2 called PW1 and the third accused to pick them up from the house in the car and that when PW1 and the third accused reached the house, accused 1 and 2 entered the car. It was deposed by PW1 that accused 1 and 2 were carrying then the bottle and towel as also the key of the house of Subaida and they threw the same out of the car on their way to Kasaragod. It was deposed by PW1 that on reaching Kasaragod, accused 1 and 2 informed them that they committed theft of the ornaments of Subaida and that the same were being carried by them at the relevant time. PW1 identified MO1 Crl Appeal Nos.827 & 943 of 2023 12 2025:KER:41744 and MO2 as the bangles, MO3 series as the pair of earrings and MO4 as the gold chain carried by accused 1 and 2 then. It was deposed by PW1 that they sold the gold ornaments to a jewellery shop for a sum of Rs.1,18,000/- and that they appropriated the sale proceeds. In cross-examination of PW1 by the counsel for the first accused, even though it was suggested that he had no previous acquaintance with the first accused, PW1 denied the same.

10. PW2 is the Sub Inspector of Police, Bakel who broke open the house of Subaida. PW2 deposed the said fact in his evidence. According to PW2, on entering the house, he found the body of a lady lying with her face, legs and hands tied with pieces of cloth and that the body was identified as that of Subaida by one Harris.

11. PW3 is the brother of Harris referred to by PW2. Harris and PW3 are two among the children in the house where Subaida had earlier worked. PW3 deposed that Subaida came to his house on 17.01.2018; that since she did not respond to the calls made to her by one of his relatives, PW3 went to her house on 19.01.2018 and on reaching the house, it was noticed that the house Crl Appeal Nos.827 & 943 of 2023 13 2025:KER:41744 was closed from outside and at the same time, her phone was ringing from inside. It was deposed by PW3 that the matter was informed to the police and that the police broke open the kitchen door of the house and informed them that Subaida is lying dead inside the house. PW4 is Harris referred to by PW2 and PW3. PW4 gave evidence more or less on similar lines as the evidence tendered by PWs 2 and 3. It was clarified by PW4 that Subaida came to his house in the morning of 17.01.2018. PW4 has identified MOs 1 to 4 as the gold ornaments usually worn by Subaida. PW5 is the sister of PW3 and PW4. PW5 also identified MOs 1 to 4 as the gold ornaments usually worn by Subaida. In addition, PW5 deposed that it was she who purchased MO1 and MO2 bangles for Subaida.

12. PW6 is Umbu referred to by PW1 in his evidence.

PW6 gave evidence on similar lines as the evidence given by PW1 that he went to the vacant house as required by Subaida; that when he reached the said vacant house, he saw two persons who came in a white car talking to Subaida; that he showed them the vacant house; that thereafter they offered to drop him at his house in the car in which they came and when he entered the back seat of the Crl Appeal Nos.827 & 943 of 2023 14 2025:KER:41744 car, he saw two other persons sitting in the back seat. PW6 identified the first accused as one among those who were standing near the car and the third accused as one among who were sitting inside the car. PW6 affirmed in his evidence that he identified the first accused in the test identification parade as well. It was also deposed by PW6 that he identified the person who was sitting inside the car along with the third accused in the test identification parade. In the cross- examination of PW6 by the counsel for the third accused, it was put to PW6 that he has not stated to the police that four persons came in the car and among them, two were standing outside and that two were sitting inside when he reached the vacant house as required by Subaida, PW6 denied the same. PW6 also denied having made Ext.D5 statement to the police namely that "അവിടെ ഒരു വെളുത്ത കാറിനടുത് രണ്ടു പേർ പുറത്തു സുബൈദിത്തയോട് സംസാരിച്ചുകൊണ്ടും ഒരാൾ കാറിന്റെ പിന്നിൽ ഇരിക്കുന്ന നിലയിലും ഉണ്ടായിരുന്നു".

13. PW7 is a lady residing in the neighbourhood of the house of Subaida. PW7 deposed that she knew Subaida for about 10 years as she used to go near the house of Subaida everyday to drop her children on their way to school. It was deposed by PW7 that on Crl Appeal Nos.827 & 943 of 2023 15 2025:KER:41744 17.01.2018, while she was coming from Periya, she saw a red car near the house of Subaida. According to PW7, it was about 1.30 p.m. and there were two persons standing near that car at the relevant time. PW7 identified the third accused as one among them. In the cross-examination of PW7 by the counsel for the third accused, PW7 clarified that she had no previous acquaintance with the persons who were standing near the car; that she did not inform the police their features and that she is seeing the third accused thereafter only in the court. PW7 however stated in the cross-examination that it was reported in the newspapers later that the assailants of Subaida came in a red car and that it is based on the said information in the newspaper that she gave statement to the police.

14. PW9 is the person, according to the prosecution, who arranged the red swift car bearing registration number KL-14-S- 9486 for the use of the third accused on rental basis. PW9 deposed that he had acquaintance with the third accused for about 20 years; that the said vehicle belongs to his colleague Hamsa and that on a request made by the third accused, he arranged the same for him from Hamsa. It was also deposed by PW9 that the third accused Crl Appeal Nos.827 & 943 of 2023 16 2025:KER:41744 returned the car on 22.01.2018, even though he did not pay the entire money.

15. PW11 is an employee in a jewellery shop at Pallam Road, Kasaragod. PW11 deposed that the shop is engaged, among others, in the purchase and sale of used gold ornaments; that on 02.02.2018, the police brought to the shop a person who was wearing a mask; that the said masked person then told the police that he has given gold ornaments to PW11; that the police then closed the shutter of the shop and showed that person to PW11, after lifting his mask and that the said person was one who came to the shop on a few occasions earlier for sale of gold ornaments. PW11 identified the first accused as the person who was brought by the police to the shop. It was deposed by PW11 that the first accused came to the shop earlier on 17.01.2018 along with three others and that PW11 purchased from the first accused, gold ornaments weighing 40.900 grams for a sum of Rs.1,18,000/-. It was also deposed by PW11 that he handed over to the police the ornaments purchased from the first accused and he identified the same as MOs 1 to 4. PW11 has also identified the third accused as one among the Crl Appeal Nos.827 & 943 of 2023 17 2025:KER:41744 persons who accompanied the first accused at the relevant time.

16. PW19 is a lady residing in one of the houses which is being looked after by PW6 and situated adjacent to a vacant house shown by PW6 to those who accompanied Subaida for the said purpose on 16.01.2018. PW19 is the person who had acquaintance with Subaida. PW19 deposed that on 16.01.2018, Subaida came to her house along with a few others in a white car to ascertain whether she knows the telephone number of Umbu and that later PW19 found Umbu showing the adjoining vacant house to them. PW19 identified the first accused as one among those who came along with Subaida to her house on 16.01.2018. PW19 affirmed in her evidence that she identified the first accused in the test identification parade as well.

17. PW31 was the doctor who conducted the post-

mortem examination on the body of the deceased. Ext.P27 is the post-mortem certificate. The following were the ante-mortem injuries found by PW31 on the body of the deceased:

1. Lacerated wound 2 x 0.5 cm on the inner aspect of left cheek, close to the molar teeth.

2. Lacerated wound 1 x 0.4 cm on the outer aspect of Crl Appeal Nos.827 & 943 of 2023 18 2025:KER:41744 lower lip, 1.5 cm inner to the right corner of mouth.

3. Contusion 1 x 1 cm on the upper lip, 0.5 cm above the right corner of mouth.

4. Contusion 1.5 x 1 cm on the lower lip, 1 cm to the left of midline.

5. Contusion 1.5 x 1 cm on the inner aspect of upper lip, close to the left angle of mouth.

6. Contusion 1 x 0.5cm on the chin.

7. Contusion 0.5 x 0.5 cm on the left cheek, 5 cm away from the left angle of mouth (the contusions were demonstrated by putting multiple incisions at areas of doubtful discoloration).

8. On dissection, the inner aspect of the scalp overlying the right parietal eminence showed a contusion, 7 x 4.5 cm; skull and dura were intact; brain was partly liquefied due to decomposition.

9. Contusion 1.5 x 1 cm on the right border of the tongue, at its middle.

10. Multiple contusions seen at the tip of tongue.

It was deposed by PW31 that the death was due to smothering. It was clarified by PW31 that smothering means covering the mouth and nostrils to cut of the air supply to the lungs and that the same can be done by applying hands, clothes, pillows etc and that death will occur if smothering lasts for 3 to 5 minutes. It was also clarified Crl Appeal Nos.827 & 943 of 2023 19 2025:KER:41744 by PW31 that covering tightly the face of a person with clothes one by one is smothering which may cause death. PW31 further clarified that the injuries noted on the body of the deceased are indicative of typical cases of smothering. It was deposed by PW31 that the death must have occurred between 48 hours and 72 hours prior to the post-mortem.

18. PW35 is the Judicial Magistrate who conducted the test identification parades of the accused in the course of the investigation. PW35 deposed that in the test identification parade conducted on 08.02.2018 at Hosdurg District Jail, PW6 and PW19 identified the first accused as also the fourth accused (PW1). Ext.P35 is the report submitted by PW35 in connection with the test identification parade conducted on 08.02.2018.

19. The case of the prosecution is that the first accused was using mobile number 9526781019, the third accused was using mobile number 9141919116 and the fourth accused namely PW1 was using mobile number 7559841530. PW41 was the Nodal officer of the Telecom Service Provider "Vodafone Idea Ltd" at the relevant time. PW41 made available the Call Detail Record of the Crl Appeal Nos.827 & 943 of 2023 20 2025:KER:41744 mobile number 9526781019 for the period from 01.11.2017 to 30.01.2018 and deposed that the mobile number 9526781019 is one allotted to the first accused. Ext.P50, the customer application submitted by the first accused for the said purpose, was made available by PW41. Ext.P48 is the Call Detail Record. It was also deposed by PW41 that during the relevant period, there were 21 calls from number 9526781019 to the mobile number 9141919116 and also 26 calls to the mobile number 7559841530. Similarly, it was deposed by PW41 that on 16.01.2018, there were calls from the number 9526781019 to the number 7559841530 at 09:59:20 hours and at 11:05:10 hours. Similarly, it was deposed by PW41 that there were calls at 10:26:59 hours and 10:49:09 hours from the mobile number 9141919116 to 9526781019 and there was a call at 11:01:22 hours from 9526781019 to the mobile number 9141919116. Similarly, it was also deposed by PW41 that on the following day, namely, 17.01.2018, there were calls at 10:49:26 and 10:57:49 hours between mobile numbers 9526781019 and 7559841530.

20. PW41 has also made available the Call Detail Crl Appeal Nos.827 & 943 of 2023 21 2025:KER:41744 Record of the mobile number 7559841530 for the period from 01.11.2017 to 30.01.2018. PW41 deposed that the mobile number 7559841530 is one allotted to PW1. Ext.P53, the customer application submitted by PW1 for the said purpose, was made available by PW41. Ext.P51 is the Call Detail Record in respect of the mobile number 7559841530. PW41 deposed that from the number 7559841530, there were 29 calls to mobile number 9526781019 and 13 calls to mobile number 9141919116 during the relevant period. It was also deposed by PW41 that on 16.01.2018, there were calls from the number 7559841530 to the mobile number 9526781019. Similarly, it was deposed by PW41 that on 17.01.2018, there were calls between the number 7559841530 and mobile numbers 9526781019 and 9141919116.

21. PW41 has further deposed that the mobile number 9141919116 is one allotted to the third accused. Ext.P57, the customer application submitted by the third accused for the said purpose, was made available by PW41. Ext.P55 is the Call Detail Record in respect of the mobile number 9141919116. PW41 deposed that there were calls during the relevant period from the mobile Crl Appeal Nos.827 & 943 of 2023 22 2025:KER:41744 number 9141919116 to the mobile numbers 9526781019 and 7559841530. It was also deposed by PW41 that on 16.01.2018, there were calls between the mobile number 9141919116 and 9526781019 at 10:27:00 and 10.49.09 hours. Similarly it was deposed by PW41 that there was a call between the mobile number 9141919116 and the mobile number 7559841530 at 10:44:46 hours on 17.01.2018. It was deposed by PW41 that on 17.01.2018, mobile number 9141919116 was within the limits of the tower bearing ID No.404460020565183 which covers the area namely Periya. Ext.P58 is the letter sent by the telecom service provider to the District Police Chief, Kasargod in this regard.

22. PW45 is the police officer who conducted the investigation in the case. It was PW45 who conducted the inquest. It was deposed by PW45 that when he saw the body of the deceased, both the legs and hands were found tied with pieces of cloth. Similarly, the face of the body was tied with a black cloth; that there were two other layers of cloth also beneath the same, namely a red cloth and a rose-patterned one on a white background. PW45 identified MO13 as the black cloth, MO14 as the red cloth and MO15 Crl Appeal Nos.827 & 943 of 2023 23 2025:KER:41744 as the rose cloth on white background. It was deposed by PW45 in his evidence that when he saw the body, the deceased was not found wearing any ornaments. It was deposed by PW45 that the first accused was arrested on 01.02.2018 at 5.35 p.m. and that the fourth accused (PW1) was arrested on the same day at 6.10 p.m. It was also deposed by PW45 that as he was contemplating to conduct test identification parades of the accused, their faces were covered with masks immediately on their arrest. It was deposed by PW45 that during interrogation pursuant to the arrest, the first accused disclosed that washed gold ornaments have been sold by him and others to a jewellery shop at Kasaragod and that he can show that shop and the person who purchased the same from him, and that pursuant to the said disclosure, when the first accused was taken to a jewellery shop named "M.S.Jewellery" as guided by him, the first accused showed PW45, the person to whom the first accused sold the gold ornaments. It was deposed by PW45 that the said person in the jewellery shop identified the first accused when his mask was lifted after closing the shutter of the shop and stated to PW45 that on 17.01.2018 at about 3.30 p.m., the first accused came to his shop Crl Appeal Nos.827 & 943 of 2023 24 2025:KER:41744 along with three others and sold to him MOs 1 to 4 ornaments weighing 40.900 grams for a sum of Rs.1,18,000/-. It was also deposed by PW45 that the gold ornaments made available by the said person in the jewellery shop was seized by him as per Ext.P9 mahazar. It was also deposed by PW45 that later on 14.02.2018, he arrested the second accused in the case and during interrogation pursuant to his arrest, it was disclosed by the second accused that "തുണിയും കുപ്പിയും road side ലുള്ള ഒരു മതിൽ കെട്ടിനുള്ളിലേക് ഞാൻ വലിച്ചെറിഞ്ഞിട്ടുണ്ട്. എന്നെ കൂട്ടി കൊണ്ടുപോയാൽ വലിച്ചെറിഞ്ഞ സ്ഥലവും പറമ്പും കാണിച്ചുതരാം" and pursuant to the said disclosure, when the second accused was taken to the place mentioned as guided by him on 15.02.2018, he took out from a vacant garden land on the way to a place called Ayambara, MO10 plastic bottle and MO11 black kerchief and the same were seized as per Ext.P11 seizure. Ext.P91 is the disclosure which led to Ext.P11 seizure. PW16 is the witness to Ext.P11 seizure and he endorsed in his evidence, the said fact. Ext.P115 is the report of the Forensic Science Laboratory. It is recited in Ext.P115 that formic acid was detected in items 5 and 6 therein which are MO11 towel and MO10 plastic bottle respectively. Crl Appeal Nos.827 & 943 of 2023 25 2025:KER:41744 It is based on the evidence discussed above that the Court of Session came to the findings referred to in paragraph 5 above.

23. The evidence discussed above in general and the evidence tendered by PW31, the doctor who conducted the post- mortem examination, in particular, would establish beyond reasonable doubt that the death of Subaida was a homicide. The pointed question, therefore, is as to who caused the death of Subaida and robbed her of her gold ornaments.

24. The prosecution has not let in any direct evidence to prove that it was accused 1 and 2 who caused the death of Subaida and robbed her of her gold ornaments. Instead, the prosecution relies on the various circumstances brought out through the evidence of the witnesses examined on its side to prove the death of Subaida and robbery of her gold ornaments. Among the circumstances, the crucial circumstances are those brought out through the evidence of PW1, the approver. After referring to Section 133 and Illustration (b) to Section 114 of the Indian Evidence Act as also the earlier decisions of the Apex Court dealing with the said statutory provisions, it was held by the Apex Court in Crl Appeal Nos.827 & 943 of 2023 26 2025:KER:41744 Somasundaram v. State, (2020) 7 SCC 722 that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice and as a rule of prudence, corroboration must be insisted in relation to the material particulars of the testimony of an accomplice. It was clarified by the Apex Court in the said case that every material circumstance against the accused need not be independently confirmed, for, if such a view is adopted, it would render the evidence of the accomplice, wholly superfluous. All that is required is that there must be some additional evidence which would make the evidence tendered by the accomplice believable.

25. Let us now analyse the evidence tendered by PW1 as regards the complicity of the first accused in the crime. Even though a suggestion was made to PW1 during the cross-examination that the first accused is not a person known to him, PW1 has emphatically denied the same. PW6 Umbu, who was introduced to PW1 and others by the deceased on 16.01.2018, as deposed by PW1, identified the first accused as one of the persons found in the company of PW1 and the deceased on 16.01.2018. No doubt, PW6 did not have previous acquaintance with the first accused, but the Crl Appeal Nos.827 & 943 of 2023 27 2025:KER:41744 identification of the first accused by PW6 in the test identification parade lends corroboration to his court identification. As noted, PW19 is a lady residing in one of the houses which is being looked after by PW6 and situated adjacent to the vacant house shown by the deceased to those who accompanied her for the said purpose on 16.01.2018. PW19 deposed that on 16.01.2018, the deceased came to her house along with a few others in a white car to ascertain whether she knows the telephone number of PW6 before PW6 joined them and the first accused was one among those who accompanied the deceased to her house on 16.01.2018. As in the case of PW6, the identification of the first accused by PW19 in the test identification parade lends corroboration to her court identification. As noted, PW4 is one among the children in the house where the deceased had earlier worked in, and PW5 is his sister. Both PW4 and PW5 have unmistakably deposed before the court and identified MOs 1 to 4 as the gold ornaments usually worn by the deceased. In addition, it was also deposed by PW5 that it was she who purchased MO1 and MO2 bangles for the deceased. PW45, the investigating officer has deposed that during interrogation pursuant to the arrest, the first Crl Appeal Nos.827 & 943 of 2023 28 2025:KER:41744 accused made a disclosure that "കഴുകിയ സ്വർണ്ണങ്ങളുമായി ഞങ്ങൾ കാറിൽ നേരെ കാസർകോട് പോയി ഒരു കടയിൽ വിറ്റു എന്നെ കൂട്ടിക്കൊണ്ട് പോയാൽ സ്വർണ്ണം വിറ്റകടയും അത് വാങ്ങിയ ആളെയും കാണിച്ചുതരാം" and that pursuant to the said disclosure, when the first accused was taken to the jewellery shop where PW11 was working, the first accused pointed out PW11 to PW45 as the person to whom the first accused sold the gold ornaments to; that PW11 identified the first accused as the person from whom he purchased MOs 1 to 4 gold ornaments on 17.01.2018. PW11 endorsed and affirmed the evidence tendered by PW45.

26. As noted, it has come out from the evidence of PW41 that the first accused and PW1 were in frequent contact over telephone between the period from 01.11.2017 to 30.01.2018 and that there were calls between them on 16.01.2018 and 17.01.2018. The only argument advanced as regards the evidence tendered by PW41 is that Ext.P48 Call Detail Record of the mobile number of the first accused and Ext.P51 Call Detail Record of the mobile number of PW1 were not supported by certificates in terms of Section 65B of the Indian Evidence Act. The fact that Exts.P48 and P51 Call Detail Records were accompanied by certificates purported to have been Crl Appeal Nos.827 & 943 of 2023 29 2025:KER:41744 issued under Section 65B of the Indian Evidence Act is not in dispute. The argument is only that the said certificates are not in accordance with the provisions contained in Section 65B of the Indian Evidence Act. Ext.P49 is the certificate appended to Ext.P48 Call Detail Record and Ext.P52 is the certificate appended to Ext.P51 Call Detail Record. Both the certificates are similarly worded. Ext.P49 reads thus:

Certificate Certified that this is the true data as defined in Section 2 (O) of the Information Technology Act 2000 and this contains the CDR and ECAF of Mobile Number :

9526781019 which is submitted in 25 Sheets.

It is certified that the above data was produced by the computer (server) operated using I comply, the company's mobile transmission system software during the period over which the computer was used regularly to store/process information for the purpose of the mobile transmission activated carried on over the period by the person having lawful control over the use of computer, that the information of the said kind was regularly fed into the computer in the ordinary course of the mobile transmission activities of the company during the said period; that the computer was operating properly throughout the said period; that the information reproduces the information fed into the computer during the ordinary course of mobile transmission activities. I identify that the report is generated by me, from the relevant data fed into the computer through the prescribed process ensuring Crl Appeal Nos.827 & 943 of 2023 30 2025:KER:41744 accuracy.

Certified that the undersigned has got control over the management of the relevant activates and that the safe guards prescribed under subsection 4 of section 65 B of the Indian Evidence Act has been fulfilled For IDEA Cellular Limited.

Sd/-

Authorised signatory Nodal officer & Person incharge of the computer system.

The specific argument advanced by the learned counsel for the first accused is that in terms of Section 65B(4) of the Indian Evidence Act, in the light of the decision of the Apex Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, a certificate doing the things (a) to (c) mentioned in sub-section (4) of Section 65B alone could be accepted as a certificate in terms of Section 65B of the Indian Evidence Act. According to the learned counsel, the extracted certificate, namely Ext.49 and similar certificates do not contain the particulars of the device involved in the production of those electronic records as provided for in clause (b) of sub-section (4) of Section 65B. Clause (b) of sub-section (4) of Section 65B reads thus:

Crl Appeal Nos.827 & 943 of 2023 31 2025:KER:41744 "(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; "

As noted, it is categorically stated in the certificate that the data was produced by the computer (server) operated using I- comply, the mobile transmission system software of the company. The certificate, according to us, satisfies the requirements in terms of Section 65B of the Indian Evidence Act. It is seen that this Court had in fact rejected identical contention in Lijo Joy v. State of Kerala, 2020 SCC OnLine Ker 25201. Paragraph 76 of the said judgment reads thus:

"76. PW24 was examined from the side of the prosecution and through whom Exts.P22 and 23 were proved. On perusing Exts.P22 and 23 it could be seen that the call data have been duly certified as contemplated under Section 65(B) of the Evidence Act. So also while the documents were marked no objection whatsoever was raised from the side of the accused. As stated earlier the documents also contained a certificate that the print out was produced by the computer (server) operator using I comply, the company's mobile transmission system software during the period over which the computer was used regularly to store/process information for the purpose of the mobile transmission activated carried on over the period by the person having lawful control over the use of computer and further that the information of the said kind was regularly fed into the computer in the Crl Appeal Nos.827 & 943 of 2023 32 2025:KER:41744 ordinary course of the mobile transmission activities of the company during the said period etc. So the contention that Exts.P22 and P23 do not have proper certification contemplated under Section 65(B) of the Evidence Act is not sustainable. So also though it is contended by the learned counsel that the original Nodal Officer who provided the information was not examined on perusing Exts.P22 and 23 it is seen certified by Sri. Rajkumar Pavothil, who is the Nodal Officer and Person in charge of the computer system of Idea Cellular Ltd. Mobile Company, Kerala Circle."

As in Lijo Joy, while the certificates were being marked, no objection whatsoever was raised from the side of the accused. In other words, there is absolutely no impediment in accepting the Call Detail Record in evidence, in the case on hand.

27. At this stage, it is necessary to refer to a contention persuasively made by the learned counsel for the first accused. As noted, while in custody, the fourth accused preferred an application before the concerned Chief Judicial Magistrate expressing his desire to be an approver in the case and the Chief Judicial Magistrate, after recording the statement of the fourth accused, tendered pardon to him on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. Ext.D1 is the statement of the fourth accused Crl Appeal Nos.827 & 943 of 2023 33 2025:KER:41744 recorded by the Chief Judicial Magistrate. The contention is that in the matter of recording Ext.D1 statement, the Chief Judicial Magistrate has not complied with the mandatory requirements contained in sub-sections (2) and (4) of Section 164 of the Code of Criminal Procedure (Code). According to the learned counsel, inasmuch as the said requirements have not been complied with while recording Ext.D1, the order tendering pardon to the fourth accused is illegal and therefore, the evidence tendered by the approver as PW1 is inadmissible. Sub-section (1) of Section 308 of the Code provides that where, in regard to a person who has accepted a tender of pardon made under Section 306, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence. Sub-section (2) of Section 308 clarifies that any statement made by such person accepting the Crl Appeal Nos.827 & 943 of 2023 34 2025:KER:41744 tender of pardon and recorded by a Magistrate under Section 164 or by a Court under sub-section (4) of Section 306 may be given in evidence against him at such trial. The learned counsel for the first accused relied on the aforesaid provisions to reinforce his contention.

28. The relevant portion of Section 306 of the Code dealing with tender of pardon to accomplice, reads thus:

306. Tender of pardon to accomplice.--(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

xxx xxx xxx xxx xxx xxx (4) Every person accepting a tender of pardon made under sub-section (1)--

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the Crl Appeal Nos.827 & 943 of 2023 35 2025:KER:41744 offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial. Section 306 is a provision intended to secure evidence to bring heinous offences to light by tendering pardon to an accused or accomplice in the crime. Upon being granted pardon, the court transforms the accused or accomplice into a prosecution witness. The extent of the culpability of the accomplice may not be of much significance and there can be no objection against tender of pardon simply because the accomplice does not implicate himself to the same extent as the other accused in his statement. In other words, the object of the provision is to secure a disclosure about the involvement of other accused, rather than focussing on the self- incrimination of the approver [See Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80]. The legal shift from "accused" to "approver/witness" fundamentally alters the nature of the statement given by the accused. Once pardon is tendered, the legal status of the individual changes. As already noticed, the statement of the accused is no longer about establishing his guilt which is the premise Crl Appeal Nos.827 & 943 of 2023 36 2025:KER:41744 for Section 164 confessions, but about providing comprehensive evidence as a witness. In other words, the provisions which are designed to ensure the voluntariness of self-incrimination, are not directly applicable to the act of granting pardon or the subsequent testimony of the approver. Sub-section (1) of Section 306 does not lay down the procedure to be followed while tendering pardon and the said section only provides that if pardon is tendered, the same shall be subject to condition of the person making full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. Sub- section (4) of Section 306 provides that every person accepting a tender of pardon shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial. There is no indication, at all, in Section 306 of the Code that a confession of the person concerned shall be recorded for the purpose of tendering a pardon to an accomplice. The only insistence in Section 306 is that the tender of pardon shall be subject to the condition that the person concerned shall make "full and true Crl Appeal Nos.827 & 943 of 2023 37 2025:KER:41744 disclosure" of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned. While it is possible that an accomplice may have previously made a confession under Section 164 of the Code during investigation, once he is tendered pardon and when he makes a "full and true disclosure" of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof in terms of Section 306, the confession may not have any relevance in the proceedings. Of course, sub-section (2) of Section 308 provides that in the event of the contingency as stated in sub-section (1), the statement made by such person accepting the tender of pardon and recorded by a Magistrate under Section 164 or by a Court under sub- section (4) of Section 306 may be given in evidence against him at such trial. True, a confession made by the accomplice before tendering pardon may also come within the scope of sub-section (2) of Section 308, but that does not mean that it is obligatory for the Court to record the confession of the accomplice before tendering pardon. Needless to say, there is no substance in the argument Crl Appeal Nos.827 & 943 of 2023 38 2025:KER:41744 advanced by the learned counsel for the first accused in this regard.

29. A meticulous analysis of the evidence tendered by the witnesses namely, PW3, PW4, PW5, PW6, PW11, PW19, PW41 and PW45, reveals that the evidence tendered by the said witnesses corroborates, in material particulars, the evidence tendered by PW1, and the evidence of the said witnesses renders the testimony of PW1 believable, in the peculiar facts and circumstances of the case.

30. The next aspect to be considered is whether the evidence tendered by PW1 as corroborated by the evidence tendered by PWs 3, 4, 5, 6, 11, 19, 41 and 45 would establish beyond reasonable doubt that it was accused 1 and another who caused the death of Subaida and robbed her of her gold ornaments. As already noticed, there is no direct evidence to prove the said fact. The evidence tendered by PW1 would only show that accused 1 and another, entered inside the house of Subaida at about 1.30 p.m. on 17.01.2018 and came out from her house after about fifteen minutes with her ornaments.

31. A presumption of fact is a type of circumstantial Crl Appeal Nos.827 & 943 of 2023 39 2025:KER:41744 evidence which, in the absence of direct evidence, becomes a valuable tool in the hands of the Court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of the criminal law. Section 114 of the Indian Evidence Act which enables the Court to presume existence of certain facts provides that "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." Illustration (a) to Section 114 provides that the court may presume that a man, who is in possession of stolen goods soon after the theft is either the thief or he has received the goods knowing them to be stolen, unless he can account for his possession. The Indian Evidence Act defines the expression "may presume"

thus:

"Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it."

Inasmuch as the expression "may presume" is used in Section 114, the Court may either regard the fact as proved, unless and until it is Crl Appeal Nos.827 & 943 of 2023 40 2025:KER:41744 disproved, or call for proof of it. It has been established beyond reasonable doubt in the case that MOs 1 to 4 gold ornaments recovered based on the information furnished by the first accused, were gold ornaments usually worn by the deceased. The occurrence in the case is one that took place on 17.01.2018. The first accused was arrested on 01.02.2018. The ornaments mentioned above were recovered on 02.02.2018. No doubt, the presumption under Section 114 (a) can be invoked only if the stolen articles are found to be in the possession of a person concerned soon after the theft. In Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, the Apex Court, while reiterating the principle that no fixed time limit can be laid down to determine whether possession is recent or otherwise, held that even a period of one year was not too long, having regard to the fact that the accused disappeared after the incident. In other words, the first accused cannot be heard to contend that he was not found to be in possession of MOs 1 to 4 gold ornaments soon after the theft. The first accused had no satisfactory explanation to account for his possession of MOs 1 to 4 gold ornaments. In other words, according to us, the presumption under Illustration (a) to Crl Appeal Nos.827 & 943 of 2023 41 2025:KER:41744 Section 114, could be safely drawn.

32. The question then is, applying Illustration (a) to Section 114, whether the presumption should be that the first accused stole the gold ornaments, the goods in the subject case or later on, received the goods knowing them to be stolen. On an overall consideration of the materials on record, especially the evidence tendered by PW31, the doctor who conducted the post- mortem examination, that the death of Subaida occurred on 17.01.2018, on which day the first accused and another entered her house and came out with her gold ornaments, and in the absence of any explanation from the first accused as to how he came to be in possession of MOs 1 to 4 gold ornaments, it can safely be presumed that the first accused and another were the persons who committed theft of MOs 1 to 4 gold ornaments of Subaida, from her house.

33. The finding aforesaid takes us to the moot question whether, having regard to the facts of the case on hand, the presumption should be extended to the perpetration of the offence of robbery or culpable homicide or both. Prima facie, such presumption does not come within the sweep of Illustration (a) of Crl Appeal Nos.827 & 943 of 2023 42 2025:KER:41744 Section 114, but it was held by the Apex Court in Raj Kumar v. State (NCT of Delhi), (2017) 11 SCC 160, that with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home, unless there is some evidence to show that the robbery and the murder occurred at the same time, i.e., in the course of the same transaction. In other words, in a given case, if the robbery and murder takes place in the course of the same transaction at the same time, such a presumption can be made. Reverting to the facts, PW31, the doctor who conducted the post-mortem examination on the body of the deceased has given evidence that her death must have occurred between 48 hours and 72 hours prior to the post-mortem. It is seen from Ext.P27 post-mortem certificate that the post-mortem examination was conducted between 10 a.m. and 11.30 a.m. on 20.01.2018. In other words, the death must have occurred between 10 a.m. on 17.01.2018 and 10 a.m. on 18.01.2018. The evidence tendered by PW31 is consistent with the case of the prosecution that the death occurred on 17.01.2018. In the light of the evidence tendered by PWs 1, 3, 4 and 31, it can safely be concluded that the Crl Appeal Nos.827 & 943 of 2023 43 2025:KER:41744 death of Subaida occurred in the same transaction in which accused 1 and another, robbed MOs 1 to 4 gold ornaments. In other words, it can certainly be presumed that accused 1 and another caused the death of Subaida while committing robbery of her gold ornaments.

34. The next aspect to be considered is whether the homicide of Subaida is 'culpable homicide' as defined under Section 299 IPC or 'murder' as defined under Section 300 IPC. Even though this aspect was not argued by the learned counsel for the first accused, we find it obligatory on our part to consider this aspect in the light of the decision of the Apex Court in State of A.P. v. Rayavarapu Punnayya, AIR 1977 SC 45 that the distinction between Sections 299 and 300 though fine, is real, and if overlooked, may result in miscarriage of justice. As noted, the allegation in the final report in the case on hand is that while Subaida placed refreshments that she had prepared for accused 1 and 2 on the table in the course of their conversation on the relevant day, the second accused covered her face from behind with a black cloth containing a chemical substance, while the first accused restrained her by holding her hands until she became unconscious and thereupon, Crl Appeal Nos.827 & 943 of 2023 44 2025:KER:41744 they laid her on the floor, removed the gold ornaments she was wearing, and thereafter left the scene after tying her hands, legs, and face with pieces of cloth in such a manner that her nose and mouth were completely covered. As already noticed, the proved facts would establish that accused 1 and 2 caused the death of Subaida while attempting to rob her of her gold ornaments. The question is whether the act committed by accused 1 and another, in terms of which the death of Subaida was caused, would amount to 'murder' punishable under Section 302 IPC.

35. Section 299 IPC defines "culpable homicide". The said Section without its illustrations and explanations reads thus:

"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

Section 300 IPC defines "murder". The said Section without its illustrations and exceptions reads thus:

"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

--

Crl Appeal Nos.827 & 943 of 2023 45 2025:KER:41744 Secondly -- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or --

Thirdly -- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or --

Fourthly -- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk or causing death or such injury as aforesaid."

In the light of Section 299 IPC, in order to constitute culpable homicide, the act of the accused must be either an act committed with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death. The ante-mortem injuries noted on the body of the deceased at the time of post- mortem examination do not show that the injuries found on the body were injuries inflicted with the intention of causing such bodily injuries as is likely to cause death. Even the learned Special Public Prosecutor who vehemently contended that the act committed by accused 1 and another, would amount to murder as defined under Crl Appeal Nos.827 & 943 of 2023 46 2025:KER:41744 Section 300 IPC, did not argue that the act was one committed with the intention of causing such bodily injury as is likely to cause death. The contention was only that the act was one committed with the intention of causing death and therefore, it is murder. The first and foremost aspect to be considered, therefore, is whether the proved facts would justify a finding that the first accused intended to cause the death of Subaida. In the absence of any direct evidence for the occurrence, this aspect needs to be considered based on the circumstances established in the case. The prosecution has no case that accused 1 and 2 carried any lethal weapon while entering the house of the deceased. Instead, the allegation is only that they carried a chemical substance in a small plastic bottle, and a black cloth. Similarly, as noted, the prosecution has no case that accused 1 and 2 caused any bodily injury to the deceased as is likely to cause the death. Instead, the allegation is only that the second accused covered her face from behind with a black cloth containing a chemical substance, while the first accused restrained her by holding her hands until she became unconscious and later while they were leaving the premises, they tied her hands, legs, and face with Crl Appeal Nos.827 & 943 of 2023 47 2025:KER:41744 cloth pieces, in such a manner that her nose and mouth were completely covered. The said allegations, according to us, are not sufficient to infer that accused 1 and another, intended to cause the death of Subaida. True, even if accused 1 and another, never had any intention to cause her death initially, the possibility of them intending to cause the death in the course of the transaction, cannot be ruled out. But, there are no materials on record in the case to make such an inference. According to us, the proved facts, at the most, are sufficient only to hold that accused 1 and another intended to rob the deceased of her gold ornaments, after making her unconscious.

36. The learned Special Public Prosecutor has brought to our notice the evidence of PW45, the police officer who conducted the inquest, that when he saw the dead body of Subaida, the face was tied with a black cloth and there were two other pieces of cloth beneath the same and the evidence of PW31, the doctor who conducted the post-mortem examination, that there was flattening of the face including nostrils and mouth and that smothering may cause, if cloths are tied on the face tightly. Placing reliance on the Crl Appeal Nos.827 & 943 of 2023 48 2025:KER:41744 said materials, it was argued by the learned Special Public Prosecutor that the said evidence is sufficient to hold that accused 1 and 2 intended to cause the death of Subaida. We do not agree. No doubt, the evidence tendered by PW45 would show that when he found the body of the deceased, the face was tied with a black cloth and there were two other pieces of cloth also beneath the same. According to us, merely for the said reason and also the fact that the cloth was tied tightly covering the face, it cannot be said that accused 1 and 2 intended to cause the death of Subaida. At the same time, from the proved facts, it could be inferred that accused 1 and 2 tied the face of the deceased with a black cloth after tightly tying two other pieces of cloth covering the face. From the said conduct of accused 1 and 2, according to us, they can certainly be attributed with the knowledge that the said act is likely to cause death. If that be so, the act committed by accused 1 and 2 would certainly fall within the third limb of Section 299 IPC. Needless to say, the act would amount to culpable homicide.

37. The next question is whether the culpable homicide committed by accused 1 and 2 would amount to murder. It Crl Appeal Nos.827 & 943 of 2023 49 2025:KER:41744 is trite that a culpable homicide falling within the third limb of Section 299 IPC would constitute murder only if it satisfies the requirement contained under the head "Fourthly" in Section 300 IPC. The head "Fourthly" in Section 300 IPC reads thus:

"If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

In order to satisfy the requirements of the said clause, the person committing the act should not only know that the act is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death and he shall commit such act without any excuse for incurring the risk of causing death or such injury as aforesaid. There are no materials in the case on hand to satisfy the dual conditions aforesaid namely that accused 1 and 2 knew that the act committed by them in tying the face of the deceased with cloth pieces tightly is so imminently dangerous that it must, in all probability, cause the death of the deceased or cause such bodily injury as is likely to cause death and that they did the act without any excuse for incurring the risk of causing death or such Crl Appeal Nos.827 & 943 of 2023 50 2025:KER:41744 injury as aforesaid. Even if there is any doubt on this aspect, the benefit of the same has to go in favour of accused 1 and 2. Needless to say, the first accused is liable to be convicted only for culpable homicide not amounting to murder under Section 304 Part II IPC for having caused the death of Subaida. In short, the prosecution has established beyond reasonable doubt, only the guilt of the first accused and another under Sections 452, 394 and 304 Part II IPC.

38. What remains to be considered is the aspect as regards the sentence to be passed against the first accused for the offence under Section 304 Part II IPC. Having regard to the peculiar facts of this case, especially the fact that the death of Subaida was caused while committing robbery of her gold ornaments, we are of the view that rigorous imprisonment for a period of ten years and a fine of Rs.25000/- would be the appropriate sentence to be passed against the first accused for having committed the said offence. Points (i) and (ii) are answered accordingly.

39. Point (iii): The main circumstances relied on by the prosecution to establish the guilt of the third accused in the case are the circumstances brought out in the evidence of PW1, the approver. Crl Appeal Nos.827 & 943 of 2023 51 2025:KER:41744 It is seen that in the light of Illustration (b) to Section 114 of the Indian Evidence Act that an accomplice is unworthy of credit, unless he is corroborated in material particulars, the Court of Session took the view that the evidence tendered by PW1 as regards the complicity of the third accused in the crime has not been corroborated in material particulars by other evidence, and it is on that basis, the third accused was acquitted by giving him the benefit of doubt. The learned Special Public Prosecutor persuasively argued that the view taken by the Court of Session, that the evidence of PW1 as regards the complicity of the third accused has not been corroborated in material particulars by the other evidence tendered by the prosecution, is unsustainable. According to the learned Special Public Prosecutor, every aspect of the evidence tendered by PW1 as regards the complicity of the third accused has been corroborated by the independent evidence let in by the prosecution. The learned Special Public Prosecutor has also relied on the call data records of the accused made available by PW41 to substantiate the said contention.

40. Before examining the correctness of the Crl Appeal Nos.827 & 943 of 2023 52 2025:KER:41744 submissions made by the learned Special Public Prosecutor, it is necessary to note that once the Court of Session acquits the accused in a case, the presumption of innocence in his favour is strengthened and reinforced. As such, it is settled that the appellate court may overrule or otherwise disturb the order of acquittal only if the appellate court has substantial and compelling reasons for doing so. It is also settled that if two reasonable or at least plausible views can be reached on the facts and evidence, one that leads to acquittal and the other that leads to conviction, the appellate court shall rule in favour of the accused [See Dhanapal v. State, (2009) 10 SCC 401]. It is also settled that the appellate court ought not interfere in the orders of acquittal, unless there is gross perversity in the appreciation of evidence, or patent illegalities. Let us now consider the sustainability of the submissions made by the learned Special Public Prosecutor, keeping in mind the said principles.

41. No doubt, it was categorically deposed by PW1 that he along with accused 1 to 3 went to the place called Periya on 16.01.2018 and that the deceased took them, on the said day, to a vacant house as they pretended to her that they are in search of a Crl Appeal Nos.827 & 943 of 2023 53 2025:KER:41744 house to be taken on rent and that she introduced to them PW6 for the said purpose. It was also deposed by PW1 that on the following day, PW1 along with accused 1 to 3 went to the house of the deceased in a red swift car taken on rent by the third accused, accused 1 and 2 entered the house of the deceased while he and the third accused were remaining inside the car and they later took accused 1 and 2 to 'MS Jewellery' after the occurrence from the house of the deceased and sold the gold ornaments robbed from the deceased in the said shop. As noted, the argument advanced by the learned Special Public Prosecutor is that the said evidence tendered by PW1 has been corroborated in material particulars by PW6, PW7, PW9 and PW11. Among these witnesses, PW6 is Umbu. In Ext.D5 previous statement, the stand taken by PW6 was that when he reached the vacant house as required by the deceased, two persons were seen talking to the deceased outside the car in which they came and one person was sitting inside the car. Identical is the stand taken by PW6 in Ext.D7 also that there was only one person in the car when the two persons found in the company of the deceased, dropped him at his residence. However, the evidence of PW6 was Crl Appeal Nos.827 & 943 of 2023 54 2025:KER:41744 that when he reached the vacant house, he saw two persons talking to the deceased; that later when they offered to drop him at his house in the car in which they came, he entered the back seat of the car and saw two other persons sitting in the back seat. It is thus established that the evidence tendered by PW6 as regards the number of persons who accompanied the deceased to the vacant house was not consistent with his previous statement namely, Exts.D5. The matter does not end there. As noticed, the evidence of PW35, the Judicial Magistrate who conducted the test identification parades was that PW6 identified the first accused and PW1 in the test identification parade conducted on 08.02.2018 and that PW6 also identified the second accused in the second test identification parade conducted on 21.02.2018. PW6 also affirmed the said facts in his evidence clarifying that among them, accused 1 and 2 were standing outside the car. If as a matter of fact, there were only three persons with the deceased on 16.01.2018 when PW6 reached the vacant house, going by the evidence tendered by him, they were accused 1, 2 and PW1. PW6 however deviated from the stand taken in Ext.D5 and deposed that he saw the third accused sitting in the Crl Appeal Nos.827 & 943 of 2023 55 2025:KER:41744 car when he entered inside the car. In the light of Ext.D5, according to us, it may not be safe to place reliance on the evidence tendered by PW6 that it was the third accused that he saw in the company of the deceased on 16.01.2018. If that be so, it cannot be said that the evidence tendered by PW1 as regards the presence of the third accused in the company of the deceased on 16.01.2018 when PW6 arrived at the vacant house, has been corroborated by the evidence tendered by PW6.

42. As noted, PW7 is a lady who was residing in the neighbourhood of the house of the deceased during the relevant period. Her evidence was that on 17.01.2018, while she was coming from Periya, she saw a red car near the house of the deceased at about 1.30 p.m and that there were two persons standing near that car at the relevant time and she identified in court the third accused as one among them. In cross-examination, PW7 clarified that she had no previous acquaintance with the persons who were standing near the car; that she did not inform the police their features and that she is seeing the third accused thereafter only in the court. PW7 also admitted that it was reported in the newspapers later that the Crl Appeal Nos.827 & 943 of 2023 56 2025:KER:41744 assailants of Subaida came in a red car and that it is based on the said information in the newspaper that she is giving evidence in the case. The relevant portions of the deposition of PW7 read thus:

"കാറിനു പുറത്തു നിൽക്കുന്നതായി കണ്ട രണ്ടു പേരെ മുന്പരിചയമില്ല. അവരെ തിരിച്ചറിയാനുള്ള ശാരീരിക അടയാളങ്ങളൊന്നും അന്വേഷണ ഉദ്യോഗസ്ഥനു പറഞ്ഞുകൊടുത്തില്ല ..........

നാട്ടുകാർ പറഞ്ഞാണ് കൊലപാതകത്തെപ്പറ്റി അറിയുന്നത് രണ്ടു മൂന്ന് ദിവസം കഴിഞ്ഞാണ് പത്രം വായിക്കുന്നത് അപ്പോൾ ഒരു ചുവന്ന കാറിന്റെ കഥ നിങ്ങൾ മനസിലാക്കി. അല്ലെ (Q) അതെ (A) പത്ര വാർത്തയുടെ അടിസ്ഥാനത്തിലാണ് police ന് മൊഴി കൊടുക്കുന്നത്. A3 യെ അന്നു കണ്ടശേഷം ഇന്നു കോടതിയിലാണ് കാണുന്നത്."

It is seen that PW7 has given evidence about 4½ years after the occurrence. As admitted by PW7, the third accused is not a person with whom PW7 had any previous acquaintance. As conceded by PW7, she had not stated to the police the features, if any, of the third accused so as to enable her to identify him almost about 4 ½ years after the occurrence. That apart, as admitted by PW7, there were newspaper reports about the assailants of the deceased, the particulars of the car in which they came to the house of the deceased etc. In the circumstances, we are of the view that in a case of this nature, it may not be safe to place reliance on the evidence tendered by PW7 to corroborate the evidence given by PW1 as Crl Appeal Nos.827 & 943 of 2023 57 2025:KER:41744 regards the complicity of the third accused in the crime. The learned Special Public Prosecutor brought to our notice the statement made by PW7 in re-examination that it is almost two weeks after she saw the car near the house of the deceased, that the newspaper report referred to by PW7 has been read by her, to contend that her statement in the cross-examination that she gave statement to the police based on newspaper reports is of no consequence. We are unable to accept this argument as the learned Special Public Prosecutor herself admitted that the statement of PW7 has been recorded by the police, long after the occurrence. If that be so, it cannot be said that the evidence tendered by PW1 as regards the presence of the third accused in front of the house of the deceased at about 1.30 p.m. on 17.01.2018 has been corroborated by the evidence tendered by PW7.

43. PW9 is the person, according to the prosecution, who arranged the red swift car bearing registration number KL-14-S- 9486 for the use of the third accused on rental basis and he deposed the said fact in his evidence. No doubt, the evidence of PW9 would corroborate the evidence of PW1 to the limited extent that the swift Crl Appeal Nos.827 & 943 of 2023 58 2025:KER:41744 car in which PW4 and others proceeded to the house of the deceased on 17.01.2018 was one that was taken on rent by the third accused from one Hamsa through PW9.

44. As noted, PW11 is the employee in the jewellery shop to which the first accused sold the robbed gold ornaments. The evidence given by PW11 was that the first accused came to his jewellery shop on 17.01.2018 along with three others and that PW11 purchased from the first accused, MOs 1 to 4 gold ornaments. PW11 identified the third accused as one among the persons who accompanied the first accused at the relevant time. Whereas, in the cross-examination of PW1, he clarified that for the purpose of selling the gold ornaments, only accused 1 and 2 had gone to the jewellery shop and that he along with the third accused were sitting in the car itself at a distance from where the shop could be seen. The relevant evidence reads thus:

"ഞങ്ങൾ നാലുപേരും Jewellery shop ൽ പോയില്ല. അസ്സീസും (A2) കാദറും (A1) ആണ് Jewellery യിൽ പോയത്. ഞങ്ങൾ shop ൽ കാണാവുന്ന ദൂരത്തിൽ കാറിൽ ഇരിക്കുകയായിരുന്നു."

If what is stated by PW1 is correct, the evidence given by PW11 that the third accused who was identified by him in court, went to the Crl Appeal Nos.827 & 943 of 2023 59 2025:KER:41744 shop along with the first accused, cannot be accepted as correct. Needless to say, it is not safe to place reliance on the evidence tendered by PW11 as regards the presence of the third accused in his shop at the time when the first accused sold the robbed gold ornaments to him.

45. In short, corroboration is available to the evidence of PW1 insofar as it relates to the complicity of the third accused in the crime, only to the limited extent of the evidence tendered by PW9 that the car in which PW1 and others went to the house of the deceased on 17.01.2018, was one taken on rent by the third accused. Apart from the evidence of PW1, there is only the evidence of PW41, the Nodal Officer of the Telecom Service Provider that accused 1, 3 and PW1 were in frequent contact over phones on 16.01.2018 and 17.01.2018 and that the mobile number of the third accused was at Periya between 12.28.56 hours and 13.25.28 hours on 17.01.2018. If we eschew the part of the evidence tendered by PW1 insofar as it relates to the complicity of the third accused in the crime, which is not corroborated in material particulars, what remains is the evidence that the car in which PW1 and others went Crl Appeal Nos.827 & 943 of 2023 60 2025:KER:41744 to the house of the deceased on 17.01.2018 was one taken on rent by the third accused; the evidence that the third accused was a close associate of the first accused and PW4; the evidence that there was frequent calls between accused 1, 3 and PW1 over phone during the relevant period and the evidence that the mobile number allotted to the third accused by the Telecom Service Provider was within the telecom tower covering the area 'Periya'. Inasmuch as the prosecution relies on circumstantial evidence to prove the guilt of accused 1 and 3, it is trite that the facts established by the circumstances shall form a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. The circumstances aforesaid, according to us, do not form a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and are not sufficient to hold that in all human probability, the act must have been done by the third accused. Needless to say, the view taken by the Court of Session to acquit the third accused is a possible view Crl Appeal Nos.827 & 943 of 2023 61 2025:KER:41744 and the same does not call for interference in the appeal. Point (iii) is answered accordingly.

In the light of the findings rendered on the points, Criminal Appeal No.943 of 2023 is dismissed and Criminal Appeal No.827 of 2023 is allowed in part. The conviction of the first accused under Section 302 IPC is altered to Part II of Section 304 IPC and he is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for three months.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

JOBIN SEBASTIAN, JUDGE.

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