Subash M. Varghese vs State Of Kerala Represented By The on 6 April, 2011

[Cites 29, Cited by 42]

Kerala High Court

Subash M. Varghese vs State Of Kerala Represented By The on 6 April, 2011

Bench: P.Bhavadasan

        

 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT:

                THE HONOURABLE MR.JUSTICE P.BHAVADASAN
                                          &
          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937

                              CRL.A.No.830 of 2011
                              --------------------------
 AGAINST THE JUDGMENT IN SC 457/2010 of PRINCIPAL SESSIONS COURT,
                         ERNAKULAM DATED 06-04-2011


APPELLANTS/ACCUSED 1 & 2:
---------------------------------

       1.     SUBASH M. VARGHESE, S/O. VARGHESE,
              AGED 31 YEARS, MATTAPPILLIL HOUSE,
              SOUTH TO THE ST.MARY'S JACOBITE CHURCH, ODAKKALY,
              ERNAKULAM KARA, ASAMANNOOR VILLAGE.

       2.     AMBILY, AGED 25 YEARS,
              W/O.SUBASH M.VARGHESE, MATTAPPILLIL HOUSE,
              SOUTH TO THE ST.MARY'S JACOBITE CHURCH, ODAKKALY,
              ERNAKULAM KARA, ASAMANNOOR VILLAGE.

              BY ADV. SRI.K.V.SABU

RESPONDENT/COMPLAINANT:
---------------------------------

        STATE OF KERALA REPRESENTED BY THE
        PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
        ERNAKULAM.

        BY SMT.JASMINE V. H., PUBLIC PROSECUTOR.


        THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:



                        P. BHAVADASAN &
                 RAJA VIJAYARAGHAVAN V., JJ.
                 -Crl.- - --- - ----- --- - - -----
                   -

             Dated this-the-6th day-of January, 2016.
                 - - -Appeal.-No.830 -of- -2011-



                            JUDGMENT

P. Bhavadasan, J.

This is the story of an young man, who set out to become rich overnight and fell into a trap laid by the first accused.

2. Now on to the facts of the case in detail.

Ajas, an young man aged about 28 years and married to PW2 about five years prior to the date of the incident, was lured by the first accused by making him believe that he would get double the amount if he entrusted a definite amount to the first accused. It is a pity to note that even otherwise Ajas was doing well in certain businesses run by himself and was leading a moderate life. But as greed would take over, he too became gullible.

3. The prosecution would say that on 17.5.2009 collecting about 5,00,000/- of which 4,00,000/- was from Crl.Appeal.830/2011.

PW4, the deceased set out to the house of the first accused to have the money doubled by the next day. He never returned.

4. PW1, father of the deceased on 20.5.2009 laid Ext.P1 First Information Statement complaining about his missing son. He informed the police that on 17.5.2009 at about 3 p.m. the deceased had gone out of the house stating that he was going to meet Subhash, his friend. Ajas set out from house on 17.5.2009 and did not return on 18.5.2009,. That panicked PWs. 1, 2, 3 and 4, and they tried to get in touch with Ajas. That was of no avail. Of course, on 17.5.2009, it is stated that Ajas had called his wife. That was the last time she heard directly from Ajas.

5. PW59 recorded statement of PW1 and on that basis registered Crime No. 1126 of 2009 of Kothamangalam Police Station under the caption 'man-missing'.

6. Investigation was initially taken over by PW52. He was the Circle Inspector of Police attached to Crl.Appeal.830/2011.

Kothamangalam Police Station from 4.6.2009 till 17.9.2009. On 17.9.2009 investigation was handed over to the Crime Branch. He had called the first accused to the police station several times and questioned him. He had questioned PWs 1, 2 and 4 in connection with the investigation of the case.

7. On 22.9.2009 PW60 took over investigation. He was attached to CBCID and he was the Dy.S.P. at the relevant time. He was entrusted with the investigation on the basis of an order in a writ petition filed before this Court wherein observation was made by this Court regarding the poor manner in which the investigation was being carried on and directed a better investigation to be done in the matter. In pursuance to the order thereof, the DIG of Police (Administration) issued an order dated 16.9.2009 entrusting the investigation to him.

8. PW60 conducted search of the house of the deceased and PW4. The search list prepared by him in respect Crl.Appeal.830/2011.

of the house of Ajas is marked as Ext.P64 and search memo is Ext.P64(a). The search list of the house of PW4 is Ext.P65 and the search memo is Ext.P65(a). He also seized the passport of PW4. He also recorded statements of PWs. 47 and 57.

9. Later on, it appears that PW61 took over investigation and he was attached to the Crime Branch of CID. He was holding the rank of Dy.S.P. He took over investigation on 22.1.2010. He had submitted Ext.P66 report before court. He on 29.1.2010 at about 4.30 p.m. seized the vehicle bearing Registration No. KL 44/6561 alleged to have been used by the first accused as per Ext.P37 mahazar. He procured the assistance of PW 51, Scientific Assistant attached to the Forensic Laboratory and had the blood stain samples collected from the Dicky of the car as per Ext.P55 mahazar. M.Os. 31 and 33 are the samples so collected. According to him, he arrested the accused on 30.3.2010 at 11.30 a.m. from near North Railway Station and he prepared Ext.P67 arrest memo. Crl.Appeal.830/2011.

He seized the various articles found in the possession of the first accused. The mahazar prepared for the said purpose is Ext.P43. According to PW61, when he returned to his office along with the accused and on questioning him, it was revealed that the second accused was also actively involved, resulting in the arrest of second accused also. According to PW61, based on the alleged confession statement marked as Ext.P8(a) as led by the first accused, they went to the compound of a house where the first accused had earlier stayed on rent and at the instance of the first accused exhumed the skeletal remains of the deceased as per Ext.P8 mahazar. He also procured the assistance of PW 51, the Scientific Assistant, who collected various samples as per Ext. 46 mahazar and those are M.Os. 36 to 38. He had the photographs taken of the exhumation and seized various articles found at the place as per Exts. P60 and 61 mahazars. Inquest was conduced on the spot and the body was handed Crl.Appeal.830/2011.

over for postmortem.

10. PW13 conducted autopsy. Ext.P15 is the initial report filed by him and after getting the chemical analysis report he submitted Ext.P16 report.

11. He had the rent deed Ext.P5, relating to the house in question seized as per Ext.P4 mahazar. He also seized a packet containing rat poison produced before him by PW6 as per Ext.P3 mahazar. He had the mobile call details of 985983956 used by the first accused at the relevant time collected and duly certified by PW9 and that was seized as per Ext.P59 mahazar. He also had the call details of the mobile used by the deceased, i.e., 9847861385 produced before him by PW1 seized as per Ext.P13 mahazar. As per Ext.P14 mahazar, ID card, call details etc. submitted to him by PW12 were seized. He also collected the customer application, ID proof and call details used for getting mobile connection number 9747689451 by the first accused and they are Crl.Appeal.830/2011.

Exts.P11 and P11(a) and P12.

12. In the meanwhile, the blood stain samples collected and the skeletal remains were submitted to DNA test and Ext.P22 is the report so submitted by the authority concerned. From the report, it is revealed that the skeletal remains on DNA comparison and the blood samples collected from the house of the first and second accused were found to belong to the son born to PWs. 1 and 3. Thus it was revealed from the chemical analysis report that the blood samples collected from the house, where the first accused had stayed at the relevant time, on DNA test, was identified as one belonging to the deceased. PW61 then recorded statements of various witnesses and he filed Ext.P77 report before court incorporating the relevant provisions of IPC and showing accused Nos. 1 and 2 as accused in the case. He completed investigation and laid charge before court. Crl.Appeal.830/2011.

13. The court before which final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a court of Sessions committed the case to Sessions Court, Ernakulam.

14. That court, after following the preliminary procedures, framed charges for the offences punishable under Sections 302, 394 read with Section 397 and 201 read with Section 34 of Indian Penal Code.

15. Charge was read over to the accused who pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs. 1 to 61 and had Exts.P1 to P78 marked. The defence had Ext.D1 marked from their side. M.Os 1 to 44 were got identified and marked.

16. After the prosecution evidence was closed, the accused were questioned with regard to the incriminating items of evidence brought out in evidence against them. While admitting some of the questions put to them and while Crl.Appeal.830/2011.

denying the major portion of the questions, the first accused also added that in the month in which the alleged incident is said to have taken place, on 15th of the said month he and his wife had gone to his house to meet his mother's sister. Since his mother's sister was not feeling well, he left his wife there and returned to his house. He was engaged in the business of procuring admission to various courses for various candidates and he went to Wayanad in connection with the said work. On 18th morning, he returned to Kothamangalam. On the same day, he went to Idukki for admission purposes and returned home. On the morning of 19th, he went to his house and thereafter, proceeded to Bangalore along with his wife. They went from Thrissur via Coimbatore. On the day on which the incident is alleged to have taken place, he denied his presence as well as the presence of his wife in the house in question. He also added that in connection with the case, he and his wife had been brutally tortured, that they are totally innocent and Crl.Appeal.830/2011.

they have nothing to do with the alleged incident.

17. Finding that they could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They examined D.W.1.

18. The trial court, on evaluation of the evidence, enumerated 23 circumstances in paragraph 122 of the judgment, which, according to the learned Sessions Judge, led to the irresistible conclusion that the death of Ajas was caused by the accused and the circumstances were so conclusive that no other conclusion was possible. The court finding that the circumstances so proved were sufficient to lead to the conclusion that it was the accused and the accused alone who were responsible for the acts committed which resulted in the death of the deceased and found them guilty on all counts.

19. The first accused was sentenced to undergo imprisonment for life and to pay a fine of 5 lakhs with a default clause of 4 years rigorous imprisonment for the Crl.Appeal.830/2011.

offence under Section 302 read with 34 of IPC. He was also sentenced to undergo imprisonment for life and to pay a fine of 5 lakhs with a default clause of 4 years rigorous imprisonment for the offence under Section 394 read with 397 of IPC. He was also sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of 2 lakhs with a default clause of two years rigorous imprisonment for the offence under Section 201 read with Section 34 of IPC. The second accused was sentenced to undergo imprisonment for life and to pay a fine of 2 lakhs with a default clause of two years for the offence under Section 302 read with Section 34 of IPC. She was also sentenced to undergo imprisonment for life and to pay a fine of 2 lakhs with a default clause of 2 years rigorous imprisonment for the offence under Section 394 read with Section 397 of IPC. She was also sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of 1 lakh with a default clause of one year rigorous Crl.Appeal.830/2011.

imprisonment for the offence under Section 201 read with Section 34 of IPC. Substantive sentences were directed to run concurrently. Set off as per law was also allowed.

20. Assailing the conviction and sentence imposed on the first and the second accused, learned counsel appearing for the appellants contended that there has not been a proper appreciation of the evidence in the case and the conclusion is based on conjectures and surmises rather than proved circumstances.

21. Learned counsel emphasized the fact that even according to the prosecution, the death occurred on 18.5.2009 and the body was exhumed only on 30.3.2010, i.e. almost after an year of death. It was not as if according to the learned counsel that the first accused was booked for the first time by PW61. He was repeatedly questioned by various Investigating Officers and they could not find any evidence as against him. Till PW61 had taken charge of investigation, Crl.Appeal.830/2011.

there was nothing against the first accused to proceed against him and soon after PW61 had taken charge, according to the learned counsel for the appellants, evidence was effectively manipulated and concocted and the first and the second accused were falsely implicated. It was pointed out by the learned counsel that even though prior to the investigation being taken over by PW61, the first accused was repeatedly questioned and the scene of occurrence searched, nothing incriminating could be located to implicate the accused persons.

22. Learned counsel went on to point out that the court below has not considered the delay in lodging the FIS for which no reasonable explanation is offered. The fact that Ajas went from his house on 17.5.2009 is not a matter in dispute. When he did not return on 18.5.2009 and even on 19.5.2009, the inmates of the house did not feel it necessary to lodge a complaint before the police and they waited till 20.5.2009 to Crl.Appeal.830/2011.

lodge the complaint. This unusual delay has not been explained and this aspect has been lost sight of by the court below.

23. Learned counsel pointed out that to invoke the last scene theory, the lower court relied on the evidence of PWs 7 and 53. Referring to their evidence, it is pointed out that PW53 was introduced by PW61 and till then no one had questioned those witnesses. Apart from the artificiality in their evidence, referring to the cross examination of PW53, it was contended that none of the crucial aspects spoken to by her in chief examination find a place in her statement under Section 161 Cr.P.C. given to PW61. Learned counsel also emphasized that it is significant to notice that neither in the scene mahazar nor in the plan prepared, the house of PW7 is shown. This assumes importance, according to the learned counsel, in the light of the fact that PW53, who is the daughter-in-law of PW7 says that on 17.5.2009 at about 9.30 Crl.Appeal.830/2011.

- 10.00 in the night, she had occasion to see the deceased along with the first accused entering the house of the first accused. It is not possible to ascertain from the scene mahazar or the plan so prepared as to where the house of PW7 is located so as to ascertain whether the statement of PW53 that she could see the deceased along with the first accused is probable and possible.

24. Learned counsel then pointed out that considerable reliance is placed on Ext.P2, a diary extract said to have been maintained by the deceased, which, according to the prosecution showed four phone numbers in which deceased could be contacted when he left on 17.5.2009. Learned counsel went on to point out that apart from the fact that the handwriting of the author who is said to have made the entries is not proved, there is also no evidence to show that those numbers pertained to the mobile phone held by the first accused.

Crl.Appeal.830/2011.

25. Criticizing the collection of blood samples from the house where the accused were alleged to have resided at the time of incident, learned counsel went on to point out that the manner and method of collecting blood samples is far from satisfactory. It is pointed out that even going by the prosecution case, the blood stain samples were covered by paint and it is inconceivable that the blood samples could have been collected from such a place. It is also significant to notice, according to the learned counsel, that even going by the prosecution case and the evidence adduced in the case, it is seen that earlier i.e., prior to the taking over of investigation by PW61, other investigating officers had visited the scene of occurrence and they had not detected any such stains. This, according to the learned counsel, suggests that the blood stain was planted. According to the learned counsel, it is also significant to notice that at the time when the blood samples were collected from the alleged place of incident, a Magistrate Crl.Appeal.830/2011.

was staying in the said house. For reasons best known to the Investigating Officer, he did not feel it necessary, for authenticity, at least, to have the Magistrate as a witness to the collection of samples. At any rate, his wife was present in the house and at least she should have been made a witness for the collection of blood samples. This is a deliberate omission and that has been lost sight of by the court below.

26. Regarding the exhumation, the criticism levelled is that the report of the Doctor concerned, i.e. PW13 does not indicate the time of death, time of burial etc. Learned counsel pointed out that the fact that the exhumation was done one year after the incident cannot be lost sight of in this context. Severe criticism was levelled also against the DNA test conducted and it was pointed out that on the facts of this case, no reliance can be placed on Ext.P22 report.

27. Relying on a statement made by PW51, learned counsel for the appellant pointed out that the exhumation etc. Crl.Appeal.830/2011.

are clearly a stage managed one. PW51 in her evidence had stated that she had been informed on the previous day, i.e. on 29.3.2010 to be present on 30.3.2010. According to the learned counsel, the accused was arrested only on 30.3.2010 at about 12.45 and the confession namely Ext.P8(a) which led to the recovery of the skeletal remains could have been extracted only thereafter. If that be so, it is inconceivable that PW51 could have been informed on the previous day to be present on 30.3.2010. This fact, according to the learned counsel, clearly shows that the entire exhumation etc. are manipulated and stage managed to suit the convenience of the prosecution.

28. Finally, learned counsel appearing for the appellants contended that the case is based on circumstantial evidence alone and the law relating to circumstantial evidence is well settled. Learned counsel referred to the decisions reported in Jose v. State of Kerala (1984 Crl.L.J. 748), Ammini Crl.Appeal.830/2011.

v. State of Kerala (1998 Crl.L.J. 481), Ramesh Chand v. State of Uttar Pradesh (1985 Crl.L.J. 530), State of Maharashtra v. Annappa (1979 Crl.L.J. 1089), Manjunath Chennabasapa Madalli v. State of Karnataka (2007 Crl.L.J. 2964) and Shankarlal v. State of Maharashtra (1981 Crl.L.J. 325). An evaluation of the evidence in this case will not meet the standards laid down in the above decisions. Reliance was placed on the decision reported in State of Maharashtra v. Annappa (1979 Crl.L.J. 1089) also for the proposition that long delay in recovering the body breaks the link in the chain and it could not thereafter be said that chain is complete so as to lead to the irresistible conclusion that it was the accused and the accused alone who was responsible for the death of the deceased.

29. Relying on the decision reported in Kanhai Yadav v. State (2004 Crl.L.J. 423), learned counsel contended that even accepting the evidence of PW53, the last scene Crl.Appeal.830/2011.

theory alone could not be invoked to mulct liability on the first and the second accused.

30. It is also contended that since the exhumation was done in the presence of a large body of persons, it has no legal significance. Learned counsel, referring to the various circumstances which according to the court below led to the conclusion that accused Nos. 1 and 2 are guilty of the offence, pointed out that none of the said circumstances are convincingly established and they are based on mere presumptions and assumptions. Learned counsel therefore contended that conviction and sentence cannot stand.

31. Meeting the above arguments, learned Public Prosecutor pointed out that the court below has considered each of the 23 circumstances narrated by the said court in detail and has given convincing and cogent reasons regarding its conclusions. The link so established forms a complete chain in itself leading to the irresistible conclusion that it is Crl.Appeal.830/2011.

the accused alone who were responsible for the death of Ajas and it is inconsistent with the hypothesis of innocence of the accused. Referring to the answers given at the time of being questioned under Section 313 Cr.P.C., learned Public Prosecutor pointed out that the accused had no consistent case regarding the familiarity of the first accused with the deceased. At one point of time, he would characterize him as a total stranger, at a later point of time, he would accept that he was acquainted with him. The details of telephone calls which were made and received by the deceased while he had gone to the house of the first accused and also the call details of the telephone which was attended to by the first accused would also reveal that there was close acquaintance between the first accused and the deceased and also that the family members of the deceased had enquired about the whereabouts of Ajas. Learned Public Prosecutor pointed out that the court below has adverted to this aspect in Crl.Appeal.830/2011.

considerable detail and has also referred to the inconsistent versions regarding the absence or presence of the deceased with him at the relevant time. His inconsistent stand at the time of examination under Section 313 Cr.P.C. is a telling circumstance which goes against him.

32. The criticism levelled against the DNA test is without any basis. No questions were put to the Scientific Officer who proved Ext.P22 regarding the manner in which the test was conducted and it is significant to notice, according to the learned Public Prosecutor that Ext.P22 gives in detail the steps followed in conducting the test and the reason for arriving at a conclusion made mention of therein. None of those facts were taken objection to at the time of examination of PW14 or even PW13 who conducted the postmortem.

33. Learned Public Prosecutor pointed out that the result of the DNA test conducted, details of which are contained in Ext.P22, established beyond doubt that the body Crl.Appeal.830/2011.

exhumed was that of Ajas and also that the blood samples collected from the house where the accused were said to have resided at the time when the incident had taken place also belonged to Ajas. These facts speak for themselves and these are telling circumstances for which no explanation is offered by the accused persons. It was these circumstances which found favour with the trial court and there are no grounds made out to interfere with the finding of the court below. Learned Public Prosecutor placed considerable reliance on the decision reported in Dharam Deo Yadav v. State of U.P. ((2014) 5 SCC 509) and contended that the facts of this case resemble well with the facts of the above decision.

34. We have heard learned counsel for the appellants and the learned Public Prosecutor in considerable detail and have perused the records. There can be no dispute regarding the fact that the case is built upon circumstantial evidence. It is not necessary to refer to the catena of decisions Crl.Appeal.830/2011.

relating the approach to be made by a court in case built on circumstantial evidence. It is sufficient to refer to the decision reported in Prakash v. State of Rajasthan (AIR 2013 SC 1474) wherein it was held as follows:

"4. In the case on hand, the prosecution case rests solely on the basis of circumstantial evidence. It was contended by the learned amicus curiae for the appellants that in the absence of direct evidence, the slightest of a discrepancy, depicting the possibility of two views would exculpate the accused of guilt, on the basis of benefit of doubt. Before considering the materials placed by the prosecution and the defence, let us analyse the legal position as declared by this Court on the standard of proof required for recording a conviction on the basis of circumstantial evidence. In a leading decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622), this Court elaborately considered the standard of proof required for recording a conviction on the basis of circumstantial Crl.Appeal.830/2011.

evidence and laid down the golden principles of standard of proof required in a case sought to be established on the basis of circumstantial evidence which are as follows:

(Paras 152 and 153 of AIR) "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (AIR 1973 SC 2622) where the observations were made: (Para 19 of AIR) "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the Crl.Appeal.830/2011.

mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be 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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

5. Though learned counsel for the appellants referred other decisions, since the above principles have been followed in the Crl.Appeal.830/2011.

subsequent decisions, we feel that there is no need to deal with the same elaborately. With the above "five golden principles", let us consider the case of the prosecution and find out whether it satisfies all the tests."

35. It is well settled that the benefit of doubt should go to the accused. As to what constitutes benefit of doubt was considered in the decision reported in Ramesh Harijan v. State of U.P. (AIR 2012 SC 1979).

36. It is not every lingering or fanciful doubt that can be regarded as a reasonable doubt. A doubt must be reasonable and it must be such that a reasonable person would entertain. Doubts of fleeting nature approximating on vague hunches cannot pass muster for reasonable doubt.

37. The court below has enumerated 23 circumstances to reach the conclusion that offence has been committed by the accused herein.

Crl.Appeal.830/2011.

38. The evidence of PW4 shows that the first accused was familiar to the deceased and that the deceased had told him that the first accused had promised to double currency, if he so wished. The evidence of PW4 is also to the effect that he had given 4,00,000/- to Ajas as on 17.5.2009. His acquaintance with Ajas is spoken to by him in detail and he also deposes that they had several transactions between them. The evidence of PW4 is to the effect that on 10.5.2009, he had given 1,00,000/- to Ajas in his office. The evidence of PW4 shows that the brother of Ajas had joined B.S.F. and was undergoing training there. While so, he was successful in passing the physical test conducted for the recruitment of Sub Inspector of Police in Kerala Police Force and due to that reason, the brother of Ajas wished to give up his employment in B.S.F.. For doing so, he had to pay a sum of 40,000/-. PW4 says that on 14.5.2009, the deceased had taken his vehicle for the said purpose. On 17.5.2009, he returned the Crl.Appeal.830/2011.

vehicle and then PW4 handed over 3,00,000/- which he had withdrawn from his bank account a few days ago to Ajas. PW4 would further say that he had taken the deceased to his house on his motor bike. While leaving the deceased at his house, PW4 would say that he was told by the deceased that 5,00,000/- which he had, had to be handed over to Subash in the evening of 17.5.2009 and he was also told by Ajas that whenever Ajas meets Subash, the latter used to collect his mobile phone and switch it off and that would be returned only when he leaves the first accused.

39. As desired by Ajas, the deceased, PW4 would say that by about 3.00 p.m. in the noon on 17.5.2009, he reached the house of Ajas. Ajas came out of his house. But before mounting the vehicle, he went back to his house and returned with a small bag. PW4 would say that he was told by the deceased that Subash was waiting at Kolencherry and therefore they had to go to Kolencherry. PW4 had driven the Crl.Appeal.830/2011.

vehicle. When they reached near Sree Mahaganapathy temple at Mathirapally, the deceased asked the vehicle to be stopped and then he dropped some coins in the hundi and continued their journey. After passing Muvattupuzha, PW4 would say that Ajas contacted Subhash, i.e. the first accused, and then Ajas was instructed to come to Kolencherry and from there, to hire an autorickshaw to reach the house of the first accused. As directed, PW4 dropped the deceased at Kolencherry Medical Mission junction and then he hired an autorickshaw and left the place. PW4 would say that he waited there for two hours and on 3 or 4 occasions, he tried to contact Ajas, but without success. He returned to Mathirappally. He would say that he had to attend a marriage on 18th and he had gone in the evening of 17th to the said house and after taking food from that house, he tried to contact Ajas over phone. He was able to get Ajas on the line, who told him to wait and that he might get late in returning home. When PW4 enquired where the Crl.Appeal.830/2011.

deceased was, the phone was switched off. The next day PW1 came to his house and enquired about the whereabouts of Ajas. PW4 would depose that he had told PW1 what had transpired on the previous day. PW1 then told him that Ajas had called the inmates of the house late in the night on 17.5.2009 and told them that they may have their dinner and he would return only late in the night. The next day, PW4 attended the marriage. At about 10.30 a.m. PW2, wife of the deceased had called him. She informed him that though she was able to get through a call to the mobile phone of Ajas, it was attended to by Subash and stating that Ajas could not attend the phone at that point of time, switched it off. PW4 would say that he procured the number of Subash from PW2 and then he tried to get in touch with both Subash and Ajas, but without success. Later in the evening, he called Subash. It was attended to by a lady. PW4 would say that he asked the lady to hand over the phone to Subash and it was so done. Crl.Appeal.830/2011.

When PW4 enquired as to whether Ajas was with him, the reply was that he did not know any person by name Ajas and that he was at Bangalore and promised to get in touch with PW4 once he returned to Kothamangalam. PW4 would say that he told Subash that it was he who had given money to the deceased and had dropped him at Kolencherry. On the next day morning, i.e., 19.5.2009 at about 9 a.m. as per the evidence of PW4, PW47, George, the Municipal Councilor of the Ward called him and enquired about the details and PW4 narrated the entire details to him.

40. PW4 would further say that at the time when Ajas left his house, he had noted four numbers in his diary and that diary was brought to him by PW2. Only one of the numbers was seen responding at the relevant time and there was no response from the other numbers. On getting in touch with Subash, according to PW4, Subash told him that he was in Bangalore in connection with admission to the nursing course Crl.Appeal.830/2011.

and that he did not know Ajas at all. He handed over the phone to PW47. From the conversation, he came to know that they were familiar to each other and that he claimed that he heard Subash saying that ">^X XaM^Wm &Cm g<^Vg<G^, .fK %y_O_g\o?" Finally, Subash told him that he would return to Kothamanagalam within two days. PW4 would say that thereafter they had discussion between themselves and the relatives of the deceased and decided to lodge a formal complaint.

41. It will be useful at this point of time to refer to the evidence of PW1, who is the author of Ext.P1 First Information Statement. He is the father of the deceased. The deceased is the eldest among his children. He speaks about the family of the deceased and then says that usually, Ajas leaves home by 9 O'Clock in the morning and returns by 9.30 in the night. If he was late in coming home, he used to inform the house accordingly. He too would say that the brother of Crl.Appeal.830/2011.

Ajas, namely, Anas had obtained employment in the B.S.F. and that employment was given up on getting selection in Kerala Police Force. He too would say that Ajas had taken the vehicle belonging to PW4 for the said purpose. According to him, in order to resign from the B.S.F. employment, a sum of 40,000/- had to be deposited there. However, according to him, after completing all the formalities, on 16.5.2009, they returned home. The vehicle of PW4 was returned on the next day. PW1 says that on 17.5.2009, after filling fuel in his vehicle, Ajas returned home by 2.00. p.m.. While he was taking his bath, there was a call for him. Initially CW4 and then Subash had called him. CW2 had attended the phone. The reply was that after the bath, Ajas would call him back. Thereafter, PW4 came with a car to the house of Ajas by about 3.00 p.m. Ajas told the members of the house that he was going along with CW4 to Muvattupuzha. Thereafter he was not seen. PW1 would say that even though they tried to get Crl.Appeal.830/2011.

him over the phone, they did not succeed. At about 10.00 p.m. in the night, the deceased had called PW2 and told her that he would return late in the night. Thereafter even though efforts were made to get in touch with Ajas, they were not successful. He then speaks about various attempts made by them on the subsequent dates to get in touch with Ajas. He repeats what PW4 had stated in his evidence. On 18.5.2009 also, when no information could be gathered about the whereabouts of Ajas, they met PW47. At that time, PW4 was also along with them. They decided to wait for two more days before lodging a complaint. He speaks bout 40,000/- which Ajas had at the relevant time. He however feigned ignorance about any financial transactions between PW4 and Ajas. He identified the entries in Ext.P2 as of the handwriting of Ajas.

42. The next item of evidence regarding the phone call is that of PW2, who is none other than the wife of the deceased. She too speaks about the employment of her Crl.Appeal.830/2011.

brother-in-law, Anas, at Bangalore and the circumstances under which he decided to give up the job. She gave a similar version regarding the incident that had transpired on 17.5.2009 and also says that while her husband was taking bath, he had telephone calls from a person called Subash. When the information was passed on to the deceased, the deceased replied that he would call him back. Soon thereafter PW4 came in his car and deceased left the house. He came back and returned to the car with a small bag. When PW2 questioned the deceased regarding the purpose of taking the bag, she was told that it was to keep his umbrella. She would also say that the deceased had the habit of noting down the contact number whenever he left the house and on 17.5.2009 also, he had written four numbers against a person named Subash. She identified the entries in Ext.P2. She would also say that even though she tried to get in touch with her husband on several occasions in the evening of 17.5.2009, she Crl.Appeal.830/2011.

was unsuccessful. At about 9.30 in the night, the deceased had called her over the phone and told her that he would return late in the night. When she enquired about the whereabouts of her husband, he did not like the same and switched off the phone. She would also say that later in the night, she again tried to call her husband, but she was unsuccessful in contacting him. On 18.5.2009, at about 9.30 a.m., the relative of PW1, namely, PW37 informed PW2 that even though he tried to contact Ajas and his phone was heard ringing, it was not being attended to. Later on, she was informed that they had gone to Bangalore and Ajas was driving the vehicle. The person who attended the phone call denied that the number in which the phone call was made was that of Ajas. She would say that when she asked whether Ajas was there when the phone call was attended to, the reply given was that the person did not know Ajas at all and then the phone was switched off. She deposed that later on, when she Crl.Appeal.830/2011.

continued to call in the phone number of her husband and also tried to get in touch with Subash, both the phones were attended to by the same person. She later got in touch with PW4 and enquired as to where he had taken her husband on the previous day. She was given to understand that PW4 had taken him to Kolencherry. PW4 told her that when he dropped the deceased at Kolencherry, the deceased had promised to return within an hour and even after waiting for a long time, when the deceased did not return, PW4 left the place. On 18.5.2009, when PW4 visited the house of PW2, Ext.P2 was shown to him. PW4 got in touch with Subash and PW4 was informed that Ajas had never got in touch with him and he did not know a person by name Ajas. On 19.5.2009, PW47 along with PW4 came to their house and they got in touch with Subash in his telephone number. She claimed that PW47 told her that Subash was familiar to him and he was an accused in a criminal case. She would also say that Subash informed Crl.Appeal.830/2011.

PW47 that Subash was then at Bangalore and by about 3.00 p.m., he would return to Mathirapally and thereafter they would go together to lodge a complaint. By about 4.00 p.m., since nobody turned up, PW2 claimed that she phoned Subash. She would say that Subash was rough to her and then asked her why she had contacted PW47 and made him to call him and then asked her to lodge a complaint, if she was aggrieved in any manner. Later on, when she again tried to get in touch with Subash, the phone was attended to by his wife. She then speaks about the money that the deceased had carried with him on 17.5.2009 and also about the dress worn by him at the relevant time. She then says that on 20.5.2009, PW1 had gone to the Station and lodged a complaint. But that yielded no result. Even though the first accused was apprehended and questioned, he was let off by the Police. She identified the first accused in dock and also the cloths worn by her husband at the relevant time.

Crl.Appeal.830/2011.

43. PW3 is the wife of PW1 or in other words, the mother of the deceased. She would say that Ajas was found missing from 17.5.2005 onwards. According to her, on 17.5.2009, when Ajas left the house, she had given him 40,000/- and thereafter, she had not met Ajas. According to her, on 20.5.2009, they got in touch with Subash from the land-line of their house. Subash picked up the phone and gave it to his wife. PW3 claimed that she asked her whether her son had gone over to their house. The reply was in the negative. PW3 then says about having given blood samples for DNA test.

44. PW37, Abdul Karim, is the Mama referred to by PW2 in her evidence. He too speaks about the employment of the brother of the deceased at B.S.F. and the reason for him to leave the job. He would say that on 14.5.2009, he, PW20 and Ajas went to Bangalore and they returned on 16.5.2009. In the night of 16.5.2009, Ajas had phoned him and told him Crl.Appeal.830/2011.

that he had reached his house. PW37 would say that on 17th evening, he had called Ajas to inform him that the amount had to be deposited to enable his brother to leave his job. But the reply he got was that the call was not reachable. Even though he repeatedly tried to get in touch with Ajas, it was of no avail. He claims to have called PW1, who told him that Ajas had gone out of the house and he had not returned so far. On 18.5.2009, between 9.00 and 10.00 a.m., PW37 claims to have called Ajas over his phone. He would say that a person picked up the phone. Since he was in an agitated mood as Ajas had not attended his calls on previous day, he talked in a rough voice to Ajas. The reply given by the person who attended the phone was that they were at Bangalore and since PW37 felt that it was not the sound of Ajas, he asked who was on the phone. When he disclosed his identity, he was told that Ajas was driving the vehicle and when he asked the phone to be handed over to Ajas, it was cut off.

Crl.Appeal.830/2011.

45. PW47 is the Councilor about whom reference was made by PWs 1, 2 and 4. He would say that on 18.5.2009, PW1 had approached him and informed him that Ajas was missing. He would say that on 19.5.2009, he reached the house of PW1 and he found that Ajas had not returned. When he was given to understand that Ajas had last left along with PW4, he called PW4 to the house of PW1 and asked him about the details. PW2 showed him the diary in which phone numbers had been written by Ajas. In his presence, PW4 tried to contact Ajas in all the numbers and when the call was made in a particular number, it was responded to. The phone was handed over to him. He would say that initially a lady spoke to him and later on, it was handed over to Subash. He claims that Subash introduced himself as a person who was along with MLA V.I. Poulose and then PW47 claims to have recognized Subash. PW47 would then say that he enquired about Ajas and then Subash replied that Ajas was with him Crl.Appeal.830/2011.

and that they were going to Bangalore for the purpose of admission to the nursing course and that they would return to Mathirappally on the next day. He passed on the information to PW1 and advised him that they could wait for two days and thereafter lay the complaint.

46. That calls were made in the numbers to and from the numbers belonging to Ajas and the first accused is evidenced by the other records in the case. The clinching item of evidence is furnished by PW12. He is the Assistant Manager of Legal Cell of Idea Cellular Limited. He speaks about the details of phone calls made between 16.04.2009 to 31.5.2009 from the mobile number 9747689451. According to PW12, the most of the calls from the above number had gone to mobile number 9847861385. PW12 would categorically say that that mobile phone stood in the name of Ajas. He would say that calls were made from the phone belonged to Ajas only till 18.5.2009. As per his evidence, going by Ext.P12, on Crl.Appeal.830/2011.

17.5.2009, a call had gone from the number 9747689451 to 9847861385. On the same day, from 9847861385 a call had gone to the other number mentioned earlier. As per item No.452, according to PW12, on 18.5.2009, a call had gone from the number 9496243955 to 9847861385. He also speaks about other calls made from the phone belonging to Ajas. He is specific about the item number 451 in Ext.P12 which shows that a call had gone from 9846828792 to 9847861385 on 17.5.2009 at about 9.55 p.m.. The tower position is at Kuthukuzhy. As per item 450, a call had gone from 9847861385 to 9847953995 in which case also the tower was at Kuthukuzhy.

47. The evidence so collected by the prosecution regarding the calls that had gone from the mobile of Subash and that of Ajas clearly indicate that they were acquainted with each other. It may be now relevant at this point to refer to the answers given by the accused at the time of being questioned Crl.Appeal.830/2011.

under Section 313 Cr.P.C. Of some importance is the answer given to question number 44 wherein the call made by PW47 was referred and put to the accused for his explanation. The first accused admitted that he had received such a call and he was asked whether it was subash and he replied in the affirmative and the person, who called him, told him that it was George and then the first accused told him that it was subash who had replied to the call and asked him for the reason for calling him. The first accused stated that PW47 told him that PW4 had informed him that Ajas had gone along with the first accused. He also stated that he did not know Ajas at all. Question number 48 related to the telephone calls made by PW2 and her attempt to contact the first accused. The reply given by the first accused was that his wife told him that there were several such calls and that finally his wife attended to the call. Question number 43 with reference to the deposition given by PW2 as to the call made on 18.5.2009 in the presence Crl.Appeal.830/2011.

of PW4, the reply given by the first accused was that he did receive a call on that day and he was asked whether Ajas was with him. He replied that he knew no person by name Ajas and he asked him who was called him. The reply given was that the call was from Kothamangalam and then cut off call. To question number 80 with reference to the statement made by PW4 regarding the conduct of the first accused in obtaining the mobile phone of deceased as soon as he met the first accused and would return the same only after when the deceased left the first accused, the answer given by him was that the said claim made by PW4 is not correct but Ajas had come to him to show him a house.

48. The trial court has debated on this issue at a considerable length. It has come to the conclusion that the accused had no consistent case regarding his familiarity with Ajas. At one point of time, he would say that Ajas was a total stranger, while at a later point of time, he would accept that Crl.Appeal.830/2011.

Ajas was familiar to him at least as a person who had come to show him the house. We are not forgetful of the rule that answers given by an accused while questioned under Section 313 Cr.P.C. cannot constitute evidence, but it has been held in several decisions of the Apex Court (See AIR 2010 SC 2839, AIR 2007 SC 848, (2014) 4 SCC 747) that answers given can be taken note in appreciating the evidence in the case. On going through the judgment of the lower court, the conclusion drawn by the court below based on the evidence of PWs 1, 2, 3, 4, 37 and 47 and PW12 and the answers given by the accused when questioned under Section 313 of Cr.P.C. clearly show that the deceased was familiar to the first accused and that he was giving different versions at different points of time regarding the availability of Ajas with him. While at one point of time, he would say that Ajas was a total stranger to him, at least when questioned with reference to the evidence of PW47, he admitted that Ajas was with him and they were Crl.Appeal.830/2011.

going to Bangalore. Therefore, in the light of the above items of evidence, the court below was perfectly justified in coming to the conclusion that Ajas was familiar to the first accused.

49. Therefore, the criticism levelled against Ext.P2 document may not have much of a relevance. The main criticism levelled against the acceptance of Ext.P2 is that the handwriting of the author is not proved.

50. It is well settled that the handwriting of a person may be proved by himself or by a person who has seen him writing the same or by a person who is familiar with the handwriting of the author or by expert's evidence. The entries in Ext.P2 is proved by PWs1 and 2. Even assuming that the evidence of PW1 may not as such be acceptable, the evidence of PW2 stands on a different footing. She categorically says in her evidence that her husband was in the habit of noting down the telephone numbers in which he could be contacted whenever he went out of the house and that he did so on Crl.Appeal.830/2011.

17.5.2009 also. She identified the entries in Ext.P2 as those made by her husband.

51. There is no challenge to this version made by PW2 regarding the entries in Ext.P2. When PW2 has categorically stated that the entries in Ext.P2 is in the handwriting of her husband, there is no challenge to the same by the defence and the prosecution is relieved of the burden of further proving that the handwriting was that of Ajas. This contention has therefore necessarily to fail.

52. The court below, based on the above items of evidence, has come to the conclusion that there is in fact, an admission to some extent by the first accused that Ajas at some point of time in the night of 17.5.2009 and also thereafter was with him. The court below is perfectly justified in coming to the conclusion that the first accused was not disclosing the true state of facts and he was giving inconsistent answers and contradictory versions about his Crl.Appeal.830/2011.

familiarity with Ajas and his presence. From the evidence referred to above, it can be seen that at one point of time, while he feigned total ignorance about Ajas, at a later point of time, he accepted that Ajas was with him and they had gone to Bangalore in relation to an admission of nursing course and that they would return on the next day to Kothamangalam. This Court has not omitted to note the fact that at the same breath, the first accused has also stated that Ajas was not with him. But these answers do not go together and the irresistible conclusion is that Ajas was very familiar to the first accused and that at least on 17.5.2009 and subsequently till some time, they were together.

53. Having thus established that Ajas was familiar to the first accused and exploding the defence that Ajas was a total stranger, the court below then moved on to the evidence of PWs 7 and 53. PW7 claims to be a neighbour of the first accused and the second accused who were staying at the place Crl.Appeal.830/2011.

of incident at the relevant time. PW53 is the daughter-in-law of PW7. The evidence of PW53 is to the effect that in the night of 17.5.2009 at about 9-9.30 while she was attempting to close the window of her house, she happened to see Ajas coming along with the first accused whom she identified by photograph in court and on knocking the door by the first accused, the second accused had opened the door and let Ajas inside the house.

54. The evidence of PW7 is to the effect that on the next day morning, while she was about to go to the Church, she happened to see the first accused coming out of his house being nervous and looking around and then returning to the house and then she saw him leaving the house in a car.

55. The criticism levelled against the evidence of PW7 is that her house is not shown anywhere in the scene mahazar or in the plan. That may be true. But there is no suggestion to PW7 that she was not a neighbour of the first Crl.Appeal.830/2011.

accused and she had no occasion to see him. In fact, she was not cross examined at all and her statement in the chief examination stands unimpeached.

56. As far as PW53 is concerned, the criticism levelled against her evidence is that in cross examination, it was brought out that most of the crucial statements made by her in chief examination have not been stated by her to the Police officer who recorded her statement under Section 161 of Cr.P.C.. It is therefore contended that those omissions amount to contradictions and no reliance can be placed on the evidence of PW53.

57. Though there may be some substance in the above criticism, the manner of proof of such contradictions have not been satisfied in the case on hand. The method by which contradictions and omissions are to be proved are settled by the decision reported in Rahul Mishra v. State of Uttarakhand and Another (2015 (9) SCC 588) which reads as Crl.Appeal.830/2011.

follows:

"18. Section 145 of the Evidence Act reads as under:

"145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved: but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

19. Under Section 45 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-

examination. The attention of witness is drawn to that part and this must reflect in his cross- Crl.Appeal.830/2011.

examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. It he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance Crl.Appeal.830/2011.

with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."

58. In cross examination of PW53, even though it was suggested to her that most of the statements made by her in chief examination are absent in her statement to the Police which she denied, there were no attempt from the side of the defence to confront the Investigating Officer with Section 161 statement of PW53 and extract from him that there were crucial omissions amounting to contradictions. That means the proof with regard to the omissions amounting to contradictions does not meet the standards required by law. The result is that the evidence of PW53 also stands.

59. The lower court has taken aid of the evidence PW53 to come to the conclusion that the deceased was last seen in the company of the first accused. In the light of the facts mentioned above and since there is no reason to reject her evidence, it could not be said that the lower court was Crl.Appeal.830/2011.

unjustified in reaching the conclusion that PW53 had in fact seen the deceased going along with the first accused to his house on 17.5.2009.

60. The cumulative effect of the evidence with regard to the telephone calls already made mention of and the evidence of PWs 7 and 53 is that the only conclusion possible is that Ajas, the deceased, was in the company of the first accused on 17.5.2009 and on subsequent dates. The circumstances so relied on by the court below is fully established.

61. The next major circumstance relied on by the court below is the exhumation of the skeletal remains of the deceased on the basis of the confession statement alleged to have been given by the first accused.

62. Before going into that aspect, one contention taken by the learned counsel for the appellants may be noticed at this point of time. It was very vehemently argued that there Crl.Appeal.830/2011.

was considerable delay in lodging the FIS and that cuts at the root of the prosecution case as no reasonable explanation has been offered for the delay.

63. From the narration of facts already made and from the evidence discussed with reference to the testimony of PWs 1, 2, 3, 4, 37 and 47, it follows that it could not be said that there was any undue delay in lodging the FIS. It is not necessary that as soon as a man is found missing, the relative should rush to the Police Station. It is only usual and natural that they make some enquiries about him and wait for some time to see whether he returns or not. It was only after PW47 intervened and met with failure in locating Ajas, the decision was taken to lodge the FIS. That too the decision was that they may wait for one more day and then lodge the FIS. In the circumstances, as disclosed from the evidence referred to above, it could not be said that there was undue delay in lodging the FIS. Even otherwise, the question of delay is to be Crl.Appeal.830/2011.

considered with reference to the facts of each case. It is no doubt true that FIS is considered as a virgin report of the incident and it is entitled to considerable weight. The test is to see whether there was any ill motive in lodging the FIS after considerable lapse of time with an intention to concoct a story. There is no straight jacket formula to determine whether the FIS is lodged belatedly or not. As already stated, it depends upon the facts of each case. The test is to see whether there was any reason for deliberately delaying the lodging of the FIS. In the case on hand, from the narration of the evidence, it could not, by any stretch of imagination, be said that there was any deliberate delay in lodging the FIS. It seems to be a natural course of event to lodge the FIS after the inmates of the house were convinced that Ajas had not returned even after four days of disappearance and there was something suspicious.

Crl.Appeal.830/2011.

64. Coming back to the evidence regarding exhumation, the portion of the confession statement relied on by the court below is marked as Ext.P8(a). The court below has considered the evidence in considerable detail. Before going into the details of exhumation, the criticism levelled against that evidence may be considered. It is contended very vehemently that it was a stage managed exhumation and that would be evident from the evidence of PW51.

65. It is contended relying on the evidence of PW51 that she was informed on the previous day i.e. on 29.3.2010 that she has to be present on the subsequent date. This is highlighted to explode the prosecution case that it was based on the confession statement namely, Ext.P8(a) that exhumation was done. The contention is that accused was arrested only on 30.3.2010 and the confession statement was made only at about 12.45 in the noon on the said date. If that be so, according to learned counsel for the appellants, it is Crl.Appeal.830/2011.

inconceivable that PW51 could have been given instructions to be present on the next day i.e. on 30.3.2010.

66. Of course, there is a sentence to that effect in the evidence of PW51. But her evidence read as a whole would indicate that she has been consistently assisting the investigating officer in picking up scientific evidence as would be evident from her evidence. She inspected the vehicle which was seized by the investigating officer, PW61 and she had also taken part in search of the house where the incident had taken place. A stray sentence picked out of context from the evidence of PW51 cannot be given undue significance and importance to come to the conclusion that exhumation was a stage managed one or that the concealment was already known to the investigating officer. The mahazars prepared by PW61 with regard to the seizure of the vehicle and also for having received the sample taken by Scientific Assistant namely, PW51 would clearly reveal that she was in active Crl.Appeal.830/2011.

association with the investigating officer in collecting evidence regarding the crime. It will be imprudent on the part of the court to place reliance on a stray sentence and to discredit the evidence of exhumation when read as a whole, it stands scrutiny. Therefore, the above criticism cannot be accepted.

67. Ext.P8 is the mahazar prepared with reference to exhumation. It is a contemporaneous document. It gives the details regarding the exhumation done. Of course, only skeletal remains could be exhumed as a result of the confession made by the accused. What is significant is that the body was seen buried in the compound of a house where the accused had on an earlier occasion resided and it was uninhabited at the relevant time. The prosecution evidence is to the effect that the accused had travelled to various places carrying the body and unable to dispose it of, finally buried it in the place from where it was exhumed. Another criticism levelled against the exhumation is that the first accused had Crl.Appeal.830/2011.

been questioned by various officers prior to being questioned by PW61 and they were unable to get any confession from him. Here one may at once notice that there is nothing to show that the first accused was ever arrested prior to the arrest made by PW61 and it is significant to notice that in fact one of the officers goes to the extent of saying that he did not try to make a thorough search of the place of incident at all.

68. It is in this context one will have to view the necessity for a relative of deceased to move this Court for appropriate reliefs. It was as per the direction issued from this Court that PW61 was ultimately put in charge of the investigation. The fact that things might have moved fast after PW61 took over investigation by itself is not a ground to doubt the prosecution case. True, there is evidence to show that the first accused was questioned on an earlier occasions. But, the mere fact that he was left off or he was not implicated or his role was not suspected does not mean that PW61 had an Crl.Appeal.830/2011.

axe to grind against him. There is no such suggestion also.

69. The court below, after discussing the evidence of PW61 and the witnesses who were present at the relevant time, chose to believe that the discovery was made in pursuance to the confession statement made by the accused falling within the ambit of Section 27 of Indian Evidence Act.

70. After having re-evaluated the evidence, we find no reason to disagree with the findings of the court below in this regard. There can be no manner of doubt that the place of concealment was discovered on the basis of the confession statement made by the accused. This is indeed a clinching item of evidence as against the accused.

71. As already stated, the only skeletal remains could be exhumed and that was subjected to postmortem and other tests by PWs 13, 14 and 18. Among whom PW14 had collected blood stains of PW1 and PW3 as per Exts.P17 and P18. Necessarily, the prosecution had to establish the identity Crl.Appeal.830/2011.

of the skeletal remains as that of Ajas and for that purpose they went to conduct DNA tests. The postmortem was done by PW13.

72. Ext.P22 is the report regarding DNA test conducted by PW18. It is necessary to refer to this document in some detail for the reason that severe criticism is levelled against the DNA test conducted by the Laboratory.

73. It may at once be noticed that there is no suggestion to either PW14 or PW18 that the samples of blood collected were not in accordance with the procedures laid down thereof or that the tests that need to be conducted to arrive at a conclusion were not properly done. As already stated, Ext.P22 marked through PW18 gives in considerable detail the various tests conducted to arrive at a conclusion that the skeletal remains is that of Ajas, son of PWs 1 and 3. It is unnecessary to extract the entire details for the simple reason that that has already been referred to in detail by the lower Crl.Appeal.830/2011.

court. Suffice to say that after narrating the tests actually done at the Laboratory and the reasons given thereof, the final conclusion drawn is that "deceased male person to whom items 1, 2, 3, 7 and 9 belonged is the biological offspring of Ms.Aysha and Mr.Hassainar to whom items 15 and 16 belonged". Items 1, 2 and 3 are the skeletal remains of Ajas and items 7 and 9 are blood samples collected from the place of incident i.e. from the frame of the door and also from the wall of the room in which the incident is alleged to have taken place.

74. As already stated, there is no challenge as to the nature of test done or as to the veracity of the report. Even though it was contended that the procedure was not properly followed, it is not shown as to what is the irregularity committed in conducting the test and arriving at a conclusion as mentioned above. More significantly there was not even a remote suggestion to PW18 that these tests were not properly Crl.Appeal.830/2011.

done or that he had omitted to conduct any crucial tests. No irregularity in conducting tests is even suggested to PW18. His evidence in this regard therefore stands unimpeached.

75. One may here refer to the decision relied on by the learned Public Prosecutor in Dharam Deo Yadav v. State of Uttar Pradesh ((2014) 5 SCC 509) wherein the acceptability of DNA test was discussed in detail. In paragraph 36, it was held as follows:

"36. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made up of a double stranded structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. The most important role of DNA profile is in the identification, such as an individual and his blood relations such as mother, father, brother, and so on. Successful identification of skeleton remains can also be performed by DNA profiling. DNA usually can be obtained from any biological Crl.Appeal.830/2011.

material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory. Close relatives have more genes in common than individuals and various procedures have been proposed for dealing with a possibility that true source of forensic DNA is of close relative. So far as this case is concerned, the DNA sample got from the skeleton matched with the blood sample of the father of the deceased and all the sampling and testing have been done by the experts whose Crl.Appeal.830/2011.

scientific knowledge and experience have not been doubted in these proceedings. We have, therefore, no reason to discard the evidence of PW19, PW20 and PW21. The prosecution has, therefore, succeeded in showing that the skeleton recovered from the house of the accused was that of Diana, daughter of Allen Jack Routley and it was none other than the accused, who had strangulated Diana to death and buried the dead body in his house".

76. It could not now be said that the test conducted in the Laboratory is merely an opinion evidence in the light of high pedestal on which scientific evidence is placed in the recent time and it is considered to be conclusive atleast as regards some aspects.

77. As already stated, Ext.P22 is the report in the case on hand. It conclusively establishes that the skeletal remains is that of Ajas who is the son of PWs 1 and 3 and that the blood samples collected by PW51 from the place of incident i.e. from the frame of the door and also from the wall Crl.Appeal.830/2011.

of the room was that of Ajas. Naturally and necessarily the accused need to explain the presence of blood stains of Ajas in the house.

78. It is not in dispute that during the relevant period i.e. from 17.5.2009 to 20.5.2009, the building was in possession of accused persons even though there is some evidence to show that after 18.5.2009 they were not seen in the house. That precisely is the prosecution case also. The prosecution has a case that after having committed the gruesome act, the body was taken to several places and it was buried finally in the compound already made mention of. It is true that evidence is to the effect that at a later point of time the father of the first accused surrendered the house. But, neither to PW7 nor to PW53 there is a suggestion that on the relevant date i.e. on 17.5.2009 and 18.5.2009, accused persons were not staying in the house.

Crl.Appeal.830/2011.

79. One may recollect here that PW53 says about having seen the deceased in the company of the accused and PW7 speaks about the panicked behaviour of the first accused on the next day. As already stated, there was no challenge to the statement given by PW7, and the evidence of PW53 and they stand scrutiny.

80. The court below has meticulously considered the above aspect and has come to the conclusion that there can be no doubt that the skeletal remains is that of Ajas and that the blood stains found in the place of incident also is that of Ajas. After having independently evaluated the evidence, we find no reason to take a different view as the finding of the court below in that regard is fully justified.

81. It was then contended that the postmortem report does not disclose as to the time of death or the age of the skull in the sense that as to when it was buried by the first accused. In the context of the case, that may have little Crl.Appeal.830/2011.

significance. The relevant aspect is to establish the identity of the corpus delicti from skeletal remains and for that purpose it is not necessary to assess the time of burial of the body and also the time of death of the person concerned.

82. One has to remember that the case is based on circumstantial evidence and there are certain things which are in the exclusive knowledge of the accused which the prosecution cannot be expected to establish independently. Once prosecution proves that the deceased was seen last in the company of accused persons and that the skeletal remains was discovered based on the confession statement given by the first accused and also that the skeletal remains is that of the deceased person, then the question as to when the death was caused is insignificant since that is within the exclusive knowledge of the accused persons.

83. Coming to the postmortem report namely, Ext.P15, it takes note of four antemortem injuries which are as Crl.Appeal.830/2011.

follows:

"1. Cut fracture 4x0.1cm over left frontal and parietal bone, parallel to midline, the front end 3cm in front of coronal suture. The cut was limited to outer table of skull.

2. Cut fracture through sagittal suture 6x0.1cm slightly towards right of midline and front end 2cm away from coronal suture. The wound was involving the outer table of skull. From the front end of this wound a fissure fracture 4cm long joins to the injury No.1 at its back end 1cm in front.

3. Cut fracture 8 x 0.2cm long involving right parietal bone just below parietal eminence. Lower edge at squamous temporal bone. From there fracture extends to petrous temporal bone 4cm long. Both ends join with back end of injury No.2 with a fissure fracture 4cm long. This injury communicates with cranial cavity and involves inner and outer tables of skull.

4. Superficial cut fracture 2 cm long over right frontal bone 1cm in front of coronal suture and 4cm to the right of midline".

Crl.Appeal.830/2011.

The final opinion reads as follows:

"All the bones are of human origin. All the bones could belong to one male individual- skeletonisation Precludes a definite opinion as to the cause of Death. He had sustained cut injuries to Head prior to Death".

84. The significance and relevance of this opinion will be considered at a later point of time. Suffice to say that four antemortem injuries have been noticed on the skull.

85. One may now refer to the evidence of PW13 in this regard who conducted postmortem. The evidence of PW13 is to the effect that four fractures which were noticed on the skull could have been inflicted by cutting with a sharp edged weapon. In cross examination, he denied the possibility of those injuries being sustained in a fall. It is true that the weapon alleged to have been used is not recovered. But, that is of little importance. What is significant is that all the four injuries noticed on the skull are antemortem injuries and Crl.Appeal.830/2011.

therefore it is clear that they were inflicted injuries. Even assuming that the weapon is not recovered, that by itself does not dilute the evidence of PW13.

86. It is necessary to point out one aspect in this context. Learned counsel appearing for the appellants drew the attention of this Court to the final report laid by the Police under Section 173(2) of the Code of Criminal Procedure. The narration of the incident as contained in the said report is that the first the accused persons administered rat poison to the deceased which had no impact on him. Thereafter they inflicted injuries using a chopper on the head and neck with the intention of appropriating 5 lakhs which Ajas had at the relevant time. Further allegation in the report is that thereafter the body was brought to the terrace on the first floor and set ablaze using patrol and thereafter the body was dropped down. Then both of them carried the body to various places and travelled to Thodupuzha - Mundakayam - Crl.Appeal.830/2011.

Peermade and ultimately buried it at the place already made mention of. Learned counsel pointed out that there is absolutely no evidence of rat poison having been administered either in the ocular evidence or medical evidence adduced by the prosecution and that stands unestablished. It is also pointed out that the allegation regarding setting on fire the body is also unsubstantiated, so also dropping of body from the first floor. These lacunas in the evidence of the prosecution, according to the learned counsel for the appellants, go a long way in exploding the prosecution case.

87. First of all, report under Section 173(2) Cr.P.C is only an opinion by the Police. It is the court charge which really the accused is called upon to meet. In order to ascertain the charge, we sought for the charge framed by the court. But, unfortunately, we are given to understand that court charge is missing from the records.

Crl.Appeal.830/2011.

88. The question is whether any prejudice has been caused to the accused because of the said fact. It is significant to notice that in the order sheet, it is specifically mentioned that charge was framed for the offences under Sections 302, 394 read with Sections 397 and 201 read with Section 34 IPC. It was read over to accused and their statements recorded. This specific statement was not taken objection to by the defence either in the court below or before this Court and it is not shown that, even assuming that there was no court charge as such framed, any prejudice has been caused to the accused. In any case, situation is taken care of by Section 464 Cr.P.C which reads as follows:

"464. Effect of omission to frame, or absence of, or error in, charge.- (1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of Crl.Appeal.830/2011.

appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge.

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction".

89. The provision is very clear that even in the absence of charge, it may not be necessary to set aside the findings in appeal or any of the grounds made mention of therein. But, if any prejudice has been caused to the accused, Crl.Appeal.830/2011.

it may do in accordance with what is stated in the provision. In the case on hand, as already stated, since there is no claim made by the accused that there was no charge framed as such by the court below and that it has caused considerable prejudice to him, the question does not call for any deliberation. There is nothing to show that the accused were misled by the absence of any charge. Even assuming there was such an omission, we are convinced that such failure has not caused any prejudice to the accused. Under the above circumstances, even though we are not convinced that there was no charge, even assuming that charge as such was not framed, that is not a ground to interfere with the findings of the court below.

90. The conclusion is therefore irresistible that four fractures noticed by PW13 on the skull of late Ajas were inflicted injuries.

Crl.Appeal.830/2011.

91. Before going into the question as to what is offence committed by the accused persons, it will be useful to refer to the part played by the second accused in this regard.

92. One shall not forget that second accused is the wife of the first accused. The only item of evidence which led to the implication of second accused seems to be the confession statement of the co-accused namely, the first accused that she was also involved. As is well established, the confession statement of the co-accused is a very brittle piece of evidence or a vague link to fasten liability on her. There is absolutely no evidence to show that she has contributed in any manner to the gruesome act committed by the first accused. Of course, she might have gone along with her husband when he left the house. But that is far from from saying that she had a part to play in the incident. One of the grounds relied on by the court below is that she was seen opening the door to let in the first accused who was accompanied by the deceased. Crl.Appeal.830/2011.

One has to remember at this point of time that it was late in the night that the first accused had come along with the deceased to his house and there is nothing to show that even assuming that the first accused had any intention to do away with deceased, the second accused was a privy to the same. No evidence whatsoever is there to come to the conclusion that there was a common intention shared by the first and the second accused was to do away with Ajas.

93. It is significant here to notice that there is no allegation that on any previous occasion any such attempt has been made by the accused together to rob money from any person. In fact evidence is to the effect that for the sake of procuring admission, the first accused had received amounts and on failure to procure admission, he had returned the same to the person concerned. There is nothing to show that the second accused had any criminal intention with the first accused to do any act which is contrary to law. Therefore, the Crl.Appeal.830/2011.

finding as against the second accused has to be set aside.

94. Coming now to the most important question as to what is the cause of death, one has to necessarily refer to Ext.P16. Of course, four fractures noticed by PW13 are antemortem injuries. The dimension of the injuries are also given. It is true that when the doctor who conducted postmortem was examined as PW13, he has stated that injury No.3 found on the skull is necessarily fatal. In fact, we find that there is no serious discussion about this aspect by the court below and the court below has held that from the facts and circumstances of the case, it is evident that the injuries must have been contributed to the death of deceased. In this context, the final opinion given by the doctor who conducted autopsy is of some relevance.

95. Before adverting to that aspect, one may refer to the view of learned author Modi in his book 'Medical Jurisprudence and Toxicology', 23rd edition at page 749, in Crl.Appeal.830/2011.

which he refers to the necessity for the doctor to conduct postmortem examination to mention about the cause of death from wounds. The relevant portion reads as follows:

"To substantiate a charge of murder or culpable homicide, it is necessary to determine that the injury inflicted on the deceased was actually the cause of death, and that it was such as was likely, or sufficient in the ordinary course of nature, to cause death".

96. It is not necessary to dwell upon this aspect for the reason that it is well settled that cause of death has to be mentioned by the doctor who conducts postmortem and his opinion is of considerable value and importance. It is a question for medical science to determine the cause of death.

97. It will be useful at this point of time to refer to two decisions of this Court in this regard. In the decision in Antony v. State of Kerala (1993 (2) KLT S.N. 30 Case No.31), it was held as follows:

"It is the paramount duty of the prosecution to establish that the injuries inflicted by the accused Crl.Appeal.830/2011.

are sufficient in the ordinary course of nature to cause death or likely to cause death inasmuch as the intention or knowledge of the person is to be gathered only from the nature of the injuries. This requirement cannot under any circumstances be dispensed with for the reason that an offence of culpable homicide under S.299 IPC would be attracted only when a person causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as likely to cause death or with the knowledge that he is likely by such act to cause death".

98. A similar issue was considered in the decision in Simon v. State of Kerala (1996 (1) KLT 406) wherein it was held as follows:

7. The definition of 'murder' given under S. 300 of the I. P. C. clearly stipulated that the bodily injury inflicted should be proved to be sufficient in the ordinary course of nature to cause death. The only plausible exceptional circumstance is given in me illustrations of S. 300, which reads:

"(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his Crl.Appeal.830/2011.

death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, give him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death".

Here, it is not known due to what cause deceased Lonappan died. It might have been due to the serious injuries sustained by him or it might have been caused due to some other reason. The accused could be found guilty only if it is proved that they had caused injuries to Lonappan and he died as a result of such injuries. So long as the reason for death is mysterious and unknown the accused under these circumstances cannot be found guilty of murder. There may be cases where the circumstances by itself would prove the cause of death and there need not be any express evidence for that. If the assailants caused extensive injuries and the head itself was chopped off and the body of the victim was found in a truncated form there need not be any investigation regarding Crl.Appeal.830/2011.

the cause of death as it is plain and evident from the circumstances of the case. So also in a case where the accused caused the death of a person and disposed off the body and the corpus delicti itself is not available for finding out the cause of death, the accused cannot escape from the clutches of law on the ground that there was no evidence regarding the cause of death of the victim. But, in the case of this nature, where the injured sustained multiple injuries and died while undergoing treatment in the hospital, the question regarding cause of death looms large and the prosecution should establish that the deceased died as a result of the injuries caused by the assailants and those injuries were sufficient in the ordinary course of nature to cause death. Such an evidence is lacked in this case".

99. Learned Public Prosecutor, on the other hand, relied on a passage from the 24th edition of Modi's 'Medical Jurisprudence and Toxicology', at page 326, which reads as follows:

Crl.Appeal.830/2011.

"(viii) It is almost impossible to infer the cause of death from a bone or bones, unless there is evidence of fractures or injuries which would, have in a living person, proved fatal, eg, fractures of the skull bones or of the upper cervical vertebrae or a deep cut into any of these bones suggesting the use of heavy cutting instrument, such as a gandasa or fracture of several ribs. Disease of the bones, such as caries or necrosis, or any firearm injuries should also be noted, if present".

100. After having gone through the above statements, one fails to understand how it can be of any help to the prosecution. That does not rule out the necessity of the doctor to mention the cause of death as such. It only makes mention of the difficulty in arriving at a conclusion in that regard. In fact, the passage relied on by the learned Public Prosecutor may go against the prosecution for the simple reason that what is stated therein is that if in a living person such injuries were seen inflicted and were sufficient to cause Crl.Appeal.830/2011.

death, then such a conclusion can be drawn in this case also.

101. It is no doubt true that PW13, at the time of evidence, has stated that injury No.3 is necessarily fatal. Then it follows it up by saying his opinion that he is unable to give definite opinion as to the cause of death.

102. Learned Public Prosecutor contended that 'necessarily fatal' means that it is of such a nature that is likely to cause death and that inference is irresistible.

103. We find it hard to accept that contention. If that was so, there was no necessity for the doctor to express his opinion that it is not possible to give a definite opinion regarding the cause of death. At least a doctor could have said that the said injury i.e. injury No.3 found on the skull was sufficient in the ordinary course of nature to cause the death of the person concerned. Even that is not stated by the doctor concerned. The question as to whether a particular injury is likely to cause death or is sufficient in the ordinary course of Crl.Appeal.830/2011.

nature to cause death is not a matter of inference but a matter of proof and the medical evidence goes a long way in establishing the said fact.

104. We are thus unable to accept the finding of the court below that the prosecution has established that this is a case of culpable homicide amounting to murder. There is nothing to show that the injuries, even assuming are inflicted by the first accused, they either cumulatively or individually was the cause of death.

105. The question then remains as to what is the offence committed by the first accused. Obviously, injuries caused fall within the definition of grievous injuries under Section 320 IPC. In the light of the fact that PW13 has specifically stated that the injuries must have been inflicted with a sharp-edged weapon means that a dangerous weapon was used. The act falls within the ambit of Section 326 IPC. We therefore reach the conclusion that the finding of the court Crl.Appeal.830/2011.

below that the offence under Section 302 IPC is made out cannot be sustained in view of the discussion made above. Only the ingredients of Section 326 IPC are made out in the case on hand.

106. As regards the offence under Sections 394 and 397 IPC are concerned, we find little evidence in this regard. There is nothing to show that deceased was carrying any amount with him at the time when he entered the car of PW4 except for the statement by PW4 that deceased had earlier said that money was taken by the first accused on 17.5.2009. There is nothing to show that at the relevant time of infliction of injuries, deceased was in possession of 5 lakhs as alleged by the prosecution.

107. It is significant in this regard to note that the evidence of PW2 is to the effect that the deceased had returned to the house after going out to join PW4 and had taken a bag along with him and when asked the purpose of Crl.Appeal.830/2011.

the same, he said that it was for carrying umbrella. Nowhere in her statement it is stated that her husband has been carrying any amount at the time when he left the house on 17.5.2009 along with PW4. The court below comes to the conclusion that recovery could not have been made probably because amount might have been expended by the accused persons. It is not a matter for presumption at all. First of all, it has to be shown that at the relevant time when the deceased met the first accused and assuming that he was taken to the house of the first accused, deceased was in possession of cash as alleged by the prosecution. There is no such evidence in this regard.

108. In the result, while agreeing with the court below that the injuries found on the skull of the deceased were in fact inflicted by the first accused, we are unable to sustain the conviction of the second accused for any of the offences made mention of in the charge and we hold that she is entitled Crl.Appeal.830/2011.

to be acquitted of all the charges. Hence she is acquitted of all the charges. She shall be released forthwith if not wanted in any other case.

109. In the result, while acquitting the second accused of all the charges levelled against her, the conviction of the first accused for the offence under Section 302 IPC stands altered to one under Section 326 IPC and he is acquitted of the charges under Section 394 read with Section 397 IPC.

110. The next question is whether the first accused can be found guilty of the offence under Section 201 of IPC. Section 201 of IPC reads as follows:

"201. Causing disappearance of evidence of offence, or giving false information to screen offender.- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from Crl.Appeal.830/2011.

legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;

if a capital offence.- shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

if punishable with imprisonment for life.- and if the offence is punishable with a [imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

if punishable with less than ten years' imprisonment.- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the Crl.Appeal.830/2011.

offence, or with fine, or with both."

111. On a reading of the above provision, it may apparently appear that the accused could not be taken in. The provision envisages only another person other than the accused.

112. But the word "whoever" appearing in the provision has been interpreted as one that takes in the accused also.

113. The conviction of the first accused for the offence under Section 201 IPC is confirmed.

114. Coming to the question of sentence, there can be no manner of doubt that the act committed by the first accused is a gruesome act and no leniency is warranted.

115. After taking note of the various aspects, it is felt that sentence of rigorous imprisonment for 10 years for the offence under Section 326 IPC and a fine of 75,000/- in default to suffer rigorous imprisonment for a period of two Crl.Appeal.830/2011.

years and sentence of rigorous imprisonment for three years and a fine of 25,000/- in default, to suffer rigorous imprisonment for six months for the offence under Section 201 IPC will meet the ends of justice.

Thus, while setting aside the conviction and sentence passed by the court below as against the first accused for the offence under Sections 302 and 394 read with Section 397 IPC, the first accused is convicted under Section 326 IPC and he is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of 75,000/- in default of payment of which he shall suffer rigorous imprisonment for two years. If the fine amount is realised, a sum of 65,000/- shall be paid to PW2 as compensation. The conviction of the first accused for the offence under Section 201 IPC is confirmed and he is sentenced to suffer rigorous imprisonment for three years and to pay a fine of 25,000/- in default of payment of which he shall suffer rigorous Crl.Appeal.830/2011.

imprisonment for six months. The substantive sentences shall run concurrently. Set off as per law will be allowed.

This appeal is disposed of as above.

P. BHAVADASAN JUDGE RAJA VIJAYARAGHAVAN V JUDGE sb/smp/ds

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