Kerala High Court
Ullas vs State Of Kerala on 8 February, 2013
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934
CRL.A.No. 1450 of 2008 ( )
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AGAINST THE JUDGMENT IN SC.507/1997 of ADDITIONAL DISTRICT & SESSIONS
COURT (FAST TRACK -I), TRIVANDRUM
AGAINST THE ORDER/JUDGMENT IN CP.22/1996 of J.M.F.C.,KATTAKADA
APPELLANT/5TH ACCUSED:
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ULLAS, S/O. PRASANNA
HIMAJA BHAVAN, NETTUKALTHERY, MUKUNTHARA DESOM
KALIKKADU VILLAGE, NEYYATTINKARA
THIRUVANANTHAPURAM DISTRICT
BY ADV. SRI.GOPAKUMAR R.THALIYAL
S. VENUGOPAL
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
R, BY ADV. PUBLIC PROSECUTOR, SHRI R RANJITH
SHRI JIKKU JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-1--2013,
ALONG WITH CRA. 1791/2008 AND CRA. 1981/2008, THE COURT ON
8-2-2013 DELIVERED THE FOLLOWING:
K.T.SANKARAN &
M.L.JOSEPH FRANCIS JJ.,
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Crl. Appeal Nos.1450, 1791 and 1981 of 2008
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Dated this the 8th day of February 2013
JUDGMENT
Joseph Francis J., Crl. Appeal No.1450 of 2008 is filed by the 5th accused (Ullas), Crl. Appeal No.1791 of 2008 is filed by the first accused (Shibu) and third accused (Ambeesan) and Crl.Appeal No.1981 of 2008 is filed by the second accused (Raghu) in S.C.No.507 of 1997 on the file of the Additional Sessions (Fast Track-1) Court, Thiruvananthapuram. The offences alleged against the accused are under Sections 120B, 302, 364, 382, 201, 397, 404 and 414 read with Section 34 of the Indian Penal Code.
2. The case of the prosecution is briefly as follows:
Accused Nos.1 to 4 entered into a criminal conspiracy between 10.3.1993 and 11.3.1993 on the upper floor of the building at Konganad, in which the second accused was residing on a rental basis. In this conspiracy to find out a source for Crl. A.1450, 1791 & 1981/08 :2: arranging money to meet their needs, they decided to hire a taxi under the pretext of going on a trip and finish off the driver and dispose of the car for meeting their financial crunch. Thus, around 2.45 p.m. on 11.3.1993 they hired an Ambassador Car bearing Registration No.KBT 1558 when driver Ganesan was parking the same at Kuttichal junction. The driver was informed that they have to purchase films from Nagercoil.
From Nagercoil, the car was diverted to Madurai under the pretext of purchasing generator and films. The 2nd accused was conducting a theatre on rent at that time. The first accused was a driver by profession. Around 11.30 p.m. on the same day, while the car was proceeding through Thirunelveli - Madurai road, accused Nos.1 to 4 finished off the driver by strangulating his neck by using a piece of coir and also inflicting blows with a hammer on the left side of his chest and sternum. As a result of that, his left third, fourth and fifth ribs and sternum were broken. The first accused took control of the vehicle. They removed the dress and chapels from the dead body and threw away. The 2nd accused took the gilt chain having gold elas and gold ring from the body, while the 3rd Crl. A.1450, 1791 & 1981/08 :3: accused took watch. They dumped the naked dead body along the side of the sub way leading to Kumarapuram Railway Station starting from Thirunelveli - Madurai National Highway in Chittambaranoor District. Then they reached Punalur in the car and the 2nd accused alighted there. The 5th accused joined them when they reached Kollam. From there, the 4th accused went to his house. The first accused contacted PW41 Ashkar who was conducting scrap iron business at Kollam and made an attempt to dispose of the car to him for dismantling. He was not prepared to purchase the car since the accused was reluctant to furnish its connected papers. After failing to dispose of the car, accused Nos.1, 3 and 5 moved with the same to Coimbatore, then Ootty, Mettupalayam, Gudalloor, Mysore, Thalassery and Bangalore in an attempt to dispose of the car. They occupied lodges at Gudalloor on the way. For meeting the expenses, they disposed of the valuable and removable items from the car at different stations to different persons. The police who have conducted the investigation have recovered all those items from different stations. Thus, after completing the investigation, charge was laid before the Crl. A.1450, 1791 & 1981/08 :4: Judicial First Class Magistrate Court, Kattakada against all the five accused under the aforesaid sections. Thereafter, the 4th accused committed suicide and hence the charge against him abated. The learned Magistrate committed the case against accused Nos.1 to 3 and 5 to the Sessions Court, Thiruvananthapuram.
3. The Sessions Court, Thiruvananthapuram made over the case to Additional Sessions Court (Fast Track - I), Thiruvananthapuram for trial and disposal. Before the Additional Sessions Court, on the prosecution side, PW1 to PW64 were examined, Exts.P1 to P71 were marked and MOs.1 to 26 were identified. After closing of prosecution evidence, the accused were questioned under Section 313 Cr.P.C.
4. On the defence side, Exts.D1 to D5 series were marked. The Additional Sessions Court, on considering the evidence on record, found that accused Nos.1 to 3 were guilty of offences under Sections 120B, 302, 364, 397, 382, 201 and 404 read with Section34 of the Indian Penal Code. The 5th accused was found guilty under Section 414 of the Indian Penal Code. Accused Nos.1 to 3 were convicted and sentenced to Crl. A.1450, 1791 & 1981/08 :5: undergo imprisonment for life under Section 302 read with Section 34 of the Indian Penal Code and to pay a fine of `25,000/- each and in default to undergo additional simple imprisonment for a period of three years each. Under Section 364 read with Section 34 of the IPC, they were sentenced to undergo rigorous imprisonment for five years each and to pay a fine of `5,000/- each, in default to undergo additional simple imprisonment for a period of one year each. Under Section 382 read with Section 34 IPC accused Nos.1 to 3 were sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of `1,000/- each, in default to undergo additional simple imprisonment for a period of six months each. Under Section 397 read with Section 34 of the IPC, the accused Nos.1 to 3 were sentenced to suffer rigorous imprisonment for a period of four years and to pay a fine of `2,000/- each, in default to undergo additional simple imprisonment for a period of one year each. Under Section 201 read with Section 34 of the Indian Penal Code, accused Nos.1 to 3 were sentenced to suffer imprisonment for a period of three years and to pay a fine of `1,000/- each, in default to undergo additional simple Crl. A.1450, 1791 & 1981/08 :6: imprisonment for a period of six months each. Under Section 404 read with Section 34 of IPC, accused Nos.1 to 3 were sentenced to suffer simple imprisonment for a period of two years each. Accused No.5 was sentenced to suffer simple imprisonment for a period of two years under Section 414 of IPC. The substantial sentences were ordered to run concurrently.
5. Against the conviction and sentence, accused Nos.1 and 3 filed Crl. Appeal No.1791 of 2008, the second accused filed Crl. Appeal No.1981 of 2008 and the 5th accused filed Crl. Appeal No.1450 of 2008.
6. Heard the learned counsel for the appellants and the learned Public Prosecutor.
7. The learned counsel for the appellants submitted that there are fatal illegalities in the trial as the whole prosecution case is based on the confession alleged to have been made by the 5th accused to PW6 and PW7. It is true that the alleged confession made by the 5th accused to PW6 and PW7 might have helped the Investigating Officer to ensure that the investigation is proceeding in the right direction. However, Crl. A.1450, 1791 & 1981/08 :7: the prosecution case is not based on the confession made by the 5th accused before PW6 and PW7 as they have turned hostile and the alleged confession is not proved against any of the accused.
8. The learned counsel for the appellants submitted that the court charge does not comply with Sections 211, 212 and 213 of the Criminal Procedure Code and the charge against one accused is conflicting with the other accused, for example, as against accused Nos.1 and 3. This argument is also not sustainable in view of Section 215 of the Cr.P.C. which provides that any error in the charge will not be material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. If the accused had any complaint regarding any irregularity in the charge, they could have pointed out the same to the trial court and that court could have altered the charge under Section 216 Cr.P.C. Moreover, Section 464 of Cr.P.C. provides that no finding, sentence or order of court shall be deemed to be invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity unless a failure of justice has Crl. A.1450, 1791 & 1981/08 :8: in fact occasioned thereby. The appellants have no case that any failure of justice was occasioned due to the irregularities in the charge. The only irregularity pointed out by the learned counsel for the appellants is that the 5th accused is also charged under Section 302 of the I.P.C. along with the other accused.
9. The learned counsel for the appellants submitted that it is not proved that the dead body recovered from the limits of Nalatumputhoor Police Station is that of Ganesan and none else and the superimposition is not exact science and it is really an elimination process. This argument will be considered while dealing with the evidence on record. The learned counsel for the appellants submitted that the superimposition is normally conducted by forensic surgeons who are better well versed in anatomical sciences and radiological examinations and that PW56 who conducted superimposition is only a Biologist.
10. The learned Public Prosecutor submitted that that mention of Biology denotes only a department and that PW56 is a forensic expert as stated by him in his deposition. Crl. A.1450, 1791 & 1981/08 :9: The defence counsel did not challenge his qualification, experience and competence while PW56 was examined before the trial court. Therefore, no useful purpose will be served at the appellate stage by challenging the competency of PW56 in conducting superimposition.
11. The learned counsel for the appellants submitted that it is not proved that for superimposition, the photograph and negative of Ganesan were used and that there is no evidence for it. CW2 handed over the photograph to the Police as spoken to by PW63. CW2 is no more and no other witness identified the photograph of Ganesan. This argument will also be considered while dealing with the evidence adduced in this case. The learned counsel for the appellants submitted that the photograph of the dead body before and after inquest and negative of the same are not produced. The learned counsel submitted that the cardinal feature for identification is the height of the person concerned. PW54, who conducted the post mortem has not taken the actual height of the dead body. The learned counsel for the appellants submitted that the hyoid bone of deceased should Crl. A.1450, 1791 & 1981/08 :10: have been subjected to forensic examination to ascertain the age of the deceased, whether the person concerned was aged above 40 years or below 40 years, as fusion of hyoid bone takes place after 40 years and in this case, hyoid bones were fused as stated by PW54. The learned counsel for the appellants submitted that there is no evidence to show that the injuries found on the body of the deceased were sufficient to cause death. The learned counsel for the appellants submitted that the conspiracy aspect is not proved. All these arguments will be considered while discussing the various aspects of the case. The learned counsel for the appellants in Crl.Appeal No.1450 of 2008, relying on the decision of the Apex Court in Hari Ram v. State of Rajasthan and another (Crl. Appeal No.907 of 2009 dated 5th May, 2009) argued that the 5th accused was a juvenile on the date of the alleged incident as he had not completed the age of 18 years and when the Juvenile Justice (Care and Protection of Children) Act, 2000 came into force, the provisions of the said Act would apply in his case with full force. Paragraph 37 of that decision reads as follows :
Crl. A.1450, 1791 & 1981/08 :11: "Of the two main questions decided in Pratap Singh's case (supra), one point is now well established that the juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate. The effect of the other part of the decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, whereunder the provisions of the Act were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of the offence. The law as now crystallized on a conjoint reading of Sections 2(k), 2(l), 7A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1st April, 2001, would be treated as juvelines, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted."
12. In the present case, at the time of occurrence in 1993, the 5th accused was aged only 17 years. In view of the principles laid down by the Apex Court, the 5th accused is entitled to get the benefits under the new Act, even though the Crl. A.1450, 1791 & 1981/08 :12: 5th accused is not claiming any benefit under the new Act. The learned counsel for the appellants submitted that the alleged recovery of articles is not proved by adducing convincing evidence. The learned Public Prosecutor supported the judgment of the court below in general.
13. One of the main contentions of all the accused is that the decomposed dead body of a male person found on 20.3.1993 as abandoned among wild growth within the property of one Andammal in Nalatumputhoor Village in Tamil Nadu within the limits of Nalatumputhoor Police Station was not the dead body of Ganesan, but of some other person. Ext.P49 is the certificate issued by PW55 Headmistress, N.K.M. Government H.S., Dhanuvachapuram stating that the date of birth of Ganesan is 9.1.1959 as per school records and that he appeared for the SSLC examination in March, 1978. Ext.P40 is the F.I. statement given by CW1 Komalam, wife of Ganesan stating that Ganesan was found missing with the taxi car from 11.3.1993 and that he was aged 34 years and he had an artificial denture on the middle portion of his upper jaw. PW1, who was the mother of Ganesan also stated that there was an Crl. A.1450, 1791 & 1981/08 :13: artificial denture on the middle portion of the upper jaw of Ganesan. PW1 deposed that while Ganesan was studying in the school, he fell down and a portion of the tooth in the upper jaw was broken and therefore, it was removed and an artificial denture was fixed. PW30 is a classmate of Ganesan. He deposed that while Ganesan was studying in the school, he lost a portion of his tooth due to a fall and an artificial denture was fixed on the middle of upper jaw.
14. According to the prosecution case, Ganesan was found missing with the car from 11.3.1993. An unidentified decomposed dead body of a male person was found at Nalatumputhoor on 20.3.1993. PW12 Subramanian was the S.I. of Police, Nalatumputhoor Police Station, who prepared Ext.P5 inquest report. PW54 Dr.Palaniappan conducted post mortem of the dead body on 20.3.1993 itself. Ext.P45 is the post mortem certificate prepared by PW54. In Ext.P45 post mortem certificate, it is noted as follows :
"Skin was not found in the inter scapular area with irregular size of 3" x 4" another below left scapular with the size of 2" x 3 " another over the medial aspect of the right scapula, another over the Crl. A.1450, 1791 & 1981/08 :14: lumbar spine with irregular edge, over the face, left angle of mandible, head of mandible are exposed. Left ear intact. Mouth is wide open. Tip of the nose was destroyed. Eye was decomposed covered with mud. Posterior aspect of thigh, calf muscles except popiliteal region muscle are exposed over the front. Skin was not found over the medial aspect of both clavicle. Over the sternal base with irregular edge with size of 8 x 4". Another hole with the size of 2"
x 3". Supra sternal. Length of scalp hair was 4"
black. Well maintained mustache. The hair over the chin. Both eyeballs putrefied."
In Ext.P45, it is further stated that there was a denture on the upper jaw of the dead body. In Ext.P45, the age of the deceased is noted as 25 years. PW57 is the Asst. Professor of Forensic Medicines attached to the Medical College Hospital, Thiruvananthapuram who had examined the bones and skull of the said dead body forwarded to ascertain the age of the deceased. In Ext.P52 report the witness has stated that the age would come about 38.6 +/- 5 years, which would show that the age would come approximately in between 33.6 and 43.6. Here the actual age of Ganesan was around 34. Thus the scientific evidence adduced through PW57, coupled with Crl. A.1450, 1791 & 1981/08 :15: Ext.P52 report points to the fact that the age of the human being involved in Ext.P6 FIR at Nalattumputhoor would come around 34 years. Thus it can be seen that the person might have met with death around the day on which Ganesan disappeared and the age of the person met with death would also be the same age of Ganesan.
15. PW56 is the Assistant Director, Biology Division, Forensic Science Laboratory, Thiruvananthapuram who has furnished Ext.P51 report after superimposing the life size print of the face photograph of Ganesan (MO 24) with the life size diapositive print of the skull and mandible of the dead body (on fixing the craniophore) in question. PW56 has stated that the artificial denture left central incisor of the upper jaw was found kept in position of the upper jaw. Ext.P52 is the report furnished by PW57, the Asst. Professor of Forensic Medicine and Police Surgeon, Medical College Hospital, Thiruvananthapuram who had received the skull, mandible, right femur and the artificial denture taken from Nalattumputhoor crime Ext.P6 through the Judicial First Class Magistrate's Court, Kattakkada for fixing the stature and age of Crl. A.1450, 1791 & 1981/08 :16: the person of the dead body. The doctor has also noted socket of the left upper central incisor had resorbed and an artificial tooth contained in the denture (which could be well apposed with the palatal surface of upper jaw) seen in its place.
16. PW35 is Koil Mani, Tahsildar, Kovilpetty. He has deposed that on 14.6.1993 he was on leave and Ext.P28 letter was signed by Tahsildar-in-charge Mr.Shanmughasundaram for and on behalf of him. The witness would further say that he was conversant with the signature of Mr.Shanmughasundaram. Ext.P28 is nothing but a letter addressed to the Medical Officer, Government Hospital, Kovilpetty (PW54) by which the doctor was asked to forward the material objects (skull and mandibles etc.) duly packed and sealed to the Judicial First Class Magistrate's Court, Kattakkada through Sri.K.P.Balachandran(PW63) Detective Inspector, Crime Branch, Thiruvananthapuram. The letter was marked to PW63, the Judicial First Class Magistrate's Court, Kattakkada, PW64 Dy.S.P., CBCID, Thiruvananthapuram. In Ext.P28, it is also stated that the S.P., Thiruvananthapuram had requested to transfer and hand over all the records in Nalattumputhoor Crl. A.1450, 1791 & 1981/08 :17: crime (Ext.P6) and as well as human remains skull mandible, etc. collected by the doctor who conducted post mortem for expert examination by Kerala Forensic Science Laboratory, Thiruvananthapuram. On the basis of that, PW63 has collected all the connected records from the Tahsildar, Kovilpetty and the human remains from the doctor, PW54.
17. PW63 produced those items before the Judicial First Class Magistrate's Court, Kattakada on preparing Ext.P56 report. From the Judicial First Class Magistrate's Court, Kattakada, the skull and femur were forwarded to the Forensic Medicine of Medical College Hospital, Thiruvananthapuram and PW57, Dr.Sreekumari, the Asst. Professor of Forensic Medicine, Medical College Hospital, Thiruvananthapuram had received the skull, mandible and femur as sent by Sri.N.Rajan, Judicial First Class Magistrate, Kattakkada vide letter No.D/542/93 dated 28.6.1993 for determination of sex, age and stature of the deceased and for any useful information with regard to the denture through the Head Constable, CBCID and after examination, PW57 has forwarded a certificate to the committal court along with femur, while the skull, mandible Crl. A.1450, 1791 & 1981/08 :18: including the teeth and denture placed in position have been forwarded to the Director, Forensic Science Laboratory, Thiruvananthapuram for superimposition. PW56, the Assistant Director, Biology, had conducted superimposition and filed Ext.P51 report in which it is stated that he had received those articles in sealed packets from the Forensic Medicine, Medical College Hospital, Thiruvananthapuram (PW57) and it contains the skull and its mandible, 12 teeth in the upper jaw along with the artificial denture of left incisor.
18. PW40, Joy is a photographer of 'Starstudio' who had taken the photo of Ganesan. He has spoken that he knew Ganesan in person and he has taken his photo in the year 1992. According to the witness the negative of the photograph was handed over to the police. Ext.P32 is the mahazar proved by the witness which was prepared by PW63 Sri.Balachandran, the Investigating Officer. PW40 has put his signature in Ext.P32 mahazar also.
19. PW40 deposed that along with the negative, a photograph of Ganesan was also handed over to PW63. According to the prosecution, the photograph was obtained Crl. A.1450, 1791 & 1981/08 :19: from CW2, none other than the father of Ganesan. CW2 is no more. Ext.P55 is the mahazar proved by PW63 by which the photo and a cover in which the photo was kept were recovered from CW2.
20. PW63 is K.B.Balachandran, who was working as Detective Inspector, Crime Branch, Thiruvananthapuram, who assisted PW64. PW63 deposed that on 22.6.1993 at 3 p.m., he seized the passport size photograph of deceased Ganesan, produced by CW2, the father of Ganesan, after preparing Ext.P55 mahazar. PW63 deposed that on 25.6.1993 at 3 p.m., he seized the negative of the black and white photograph of Ganesan produced by PW40 on preparing Ext.P32 mahazar. PW63 deposed that on 16.6.1993 he met Kovilpetty Tahsildar in Tamilnadu and he entrusted with him a cover containing records, the sealed cover produced by the doctor, who conducted post mortem and cardboard packet and he produced those items before the Judicial First Class Magistrate Court, Kattakada. Ext.P56 is the report produced before that court. PW54, the doctor, who conducted the post mortem deposed that he received Ext.P47 report from the Sub Crl. A.1450, 1791 & 1981/08 :20: Inspector, instructing him to collect the skull, hyoid bone and femur for further analysis and on the basis of that instructions, he collected those items and those items were produced before Judicial First Class Magistrate Court, Kattakkada through the Investigating Officer. PW56 was working as Assistant Director, Biology Division, F.S.L., Thiruvananthapuram. PW56 developed life size passport size photograph of Ganesan as MO24 and also prepared life size diapositive print of skull and mandible as MO25. MO25(a) is the negative from which MO25 was developed. The observation of PW56 is as follows :
1. The eyes were within the orbital cavities.
2. The eyebrows corresponded to the upper orbital margin.
3. The root of the nosal bone corresponded to Nasion.
4. The nosal spine was just above the tip of nose.
5. The upper alveolar margin was just below the tip of nose.
6. The gonions corresponded to the maxillary eminences.
7. The gnathion corresponded to symphysismenti.
8. The outlines of the jaw and jaw bones were congruous granting due allowance for soft tissue thickness.
Crl. A.1450, 1791 & 1981/08 :21:
9. The ratios calculated from the anthropometrie measurements taken from the face and skull tallied. On the basis of this observation, PW56 came to the conclusion that the skull and mandible could have belonged to the person whose photograph was given. When PW56 was examined, the accused had no case that the photograph was not that of deceased Ganesan and that the skull and mandible were not collected by the doctor who conducted the post mortem of decomposed body. PW56 deposed that the superimposition is not done for elimination purpose alone.
21. In the decision reported in Ram Lochan Ahir, v. State of W.B. (AIR 1963 Supreme Court 1074), it was held that a superimposed photograph of the deceased over the skeleton of a human body (skull) recovered from a tank was admissible under S.9 of the Evidence Act to prove the fact that the skeleton was that of the deceased.
22. In the light of the discussion made above, we are of the view that the Additional Sessions Court was perfectly justified in finding that the dead body obtained from Nalattumputhoor was the dead body of Ganesan. Crl. A.1450, 1791 & 1981/08 :22:
23. The next question to be considered is as to whether the death of Ganesan was suicide or homicide. PW54 Dr.V.C.Palaniappan who conducted post mortem on the dead body opined that cause of death may be strangulation over the neck and impact on the chest bones which caused the fracture of 3rd, 4th and 5th ribs of left side. The final opinion of PW54 after receiving chemical analysis report after analysing viscera and other parts of deceased is that the death was due to injury as stated in the postmortem report. From the post mortem report, it is proved that the death of Ganesan was a homicide.
24. PW64 Ramakrishna Pillai, who was working as D.Y.S.P., Crime Branch C.I.D., Thiruvnananthapuram investigated the case as per the order of D.G.P. Dated 6.4.1993. He deposed that he arrested accursed nos. 1 to 5 on 14.5.1993 and produced them before Court and the Court gave accused to Police custody on 15.5.1993 and he questioned the accused in detail. When PW64 questioned third accused Ambeesan he told him that he would show the place where the dead body was abandoned if he was taken to that place and on the basis of that statement as led by the third accused, they Crl. A.1450, 1791 & 1981/08 :23: went to Kumarapuram Railway Road in Nalatturnputhoor village in Chittambaranoor District in Tamil Nadu and reached at the spot and prepared Ext.P9 mahazar on 19.5.1993 in the presence of witnesses. PW13 who was an attesting witness to Ext.P9 mahazar turned hostile. But he admitted his signature in Ext.P9. PW64 deposed that on 20.5.1993 at 5.00 P.M. third accused Ambeesan gave a confession statement to the effect that he had pledged the wrist watch used by deceased Ganesan to one person belonging to Sankar Nagar in Mettupalayam village for `150/-, that he would show the person to whom it was pledged if he was taken to that place and on the basis of that statement as led by the third accused they reached that place and the third accused pointed out one Yoosuf, son of Abdul Rehman and the wrist watch produced by CW32 Yoosuf was seized on preparing Ext.P12 mahazar and Ext.P12(a) is the relevant portion of the statement given by the third accused. PW64 identified MO2 as the watch thus seized. PW16 is the attesting witness to Ext.P12 mahazar. PW16 identified third accused as the person who was present at the time of seizure of MO2 watch.
Crl. A.1450, 1791 & 1981/08 :24:
25. On the same day, when the first accused was questioned by the investigating officer about the stepney tyre of the car bearing Reg.No. K.B.T. 1558 he told that he had sold the tyre in a tyre shop at Coimbatore city and that he would show the tyre shop and the person to whom the tyre was sold and on the basis of that statement as led by the first accused they went to that place and the shop owner who was examined as PW14 identified first accused and he gave MO8 tyre to the police. Ext.P11 is the seizure mahazar prepared in connection with the seizure of MO8. Ext.P11(a) is the relevant portion of the statement which led to the recovery of MO8 tyre. PW14 identified first accused as the person who sold MO8 tyre to him.
26. On 21.5.1993 at about 3.30 P.M., PW64 questioned first accused and he told that the cooling paper found in the car bearing Reg.No. K.B.T. 1558 was pledged with one Johnson who was working in the Barlia Toll Gate in Neelagiri District and he would show the person to whom it was pledged and on the basis of that statement PW64 went to that place as led by the first accused and the first accused identified PW42 Johnson and PW42 produced a cooling paper which was marked as MO6. Crl. A.1450, 1791 & 1981/08 :25: Ext.P33 is the mahazar prepared in connection with that seizure. PW42 Johnson identified first accused as the person who entrusted MO6 cooling paper.
27. PW42 was the collection agent in the check post at Burliar in Tamilnadu in the year 1993. He was examined to prove that the accused reached there with the car and borrowed `50/- from him by pledging the cooling paper marked as MO6, which was recovered from him by the Police. PW43 was conducting a pan shop near the said check post. He put his signature in Ext.P33 recovery mahazar. The recovery was effected as per Ext.P33(a) disclosure statement of first accused.
28. PW64 deposed that on 22.5.1993 when the first accused was questioned about the stereo in the car he told that he had sold it to one Narayanan who was conducting a tea shop at Ootty. On the basis of the statement MO7 stereo was seized from PW17 Narayanan. PW17 Narayanan who is a Malayalee was conducting tea stall at Ootty under the name 'Neelagiri tea stall'. MO7 car stereo was recovered under Ext.P13 recovery mahazar from him and he identified the first Crl. A.1450, 1791 & 1981/08 :26: accused as the person from whom it was purchased. PW18 is a staff of the tea stall of PW17 who put his signature in Ext.P13 recovery mahazar.
29. PW64 deposed that on 25.3.1993 on the basis of the disclosed statement given by the first accused, MO8(a) Car tyre, MO9 wheel disc and MO10 tube were seized from PW14. Ext.P63(a) is the portion of the statement given by the first accused which led to the seizure of those items. PW64 deposed that PW3 identified the tube and disc. When the third accused was questioned by PW64 about the aerial fitted in the Car, the third accused told that he sold the same to CW51 Rehmathulla and on the basis of that statement MO5 aerial was seized from CW51. Ext.P64 is the seizure mahazar and Ext.P64
(a) is the relevant portion of the statement given by third accused. When PW64 asked third accused about the fancy break light of the car he told that it was sold to PW38 and on the basis of that statement MO26 break light was seized from PW38. Ext.17 is the mahazar and Ext.P17(a) is the relevant portion of the statement given by third accused in connection with the seizure of break light. PW38 turned hostile. Crl. A.1450, 1791 & 1981/08 :27:
30. PW64 deposed that on 28.5.1993 on the basis of the statement given by fourth accused Surendran MO13 hammer and MO14 torch light used for the commission of crime were seized on preparing Ext.P18 mahazar and Ext.P18(a) is the statement given by fourth accused. PW64 deposed that on 29.5.1993 on the basis of the statement given by the second accused Raghu ................ gilt chain and gold ring worn by deceased Ganesan were recovered. When second accused was questioned he confessed that ............. ............... .......... ...... .. ........ .... ..................... ................. ....... ................... ............... ......... ............................. ............................ .......... ..................... ....... ............................ ....................... ......................... ............ . .......................................... ............................... .......................... ...... ............................................................................. ................ ..... .......... ........ ... ........................................... ........................... .... ................................ ............................................................... .............. ..................... .......... ........ ....................... ................. .. Crl. A.1450, 1791 & 1981/08 :28:
31. PW64 deposed that on the basis of the statement given by the 2nd accused, he along with the second accused went to the house of PW28 Rahana Beevi and in the presence of PW28 and other attesting witnesses, second accused produced MO1 elas, MO3 gold ring and MO4 chain. Ext.P24 is the mahazar prepared for recovering those items. Ext.P24(a) is the statement of second accused leading to the seizure of MO1, MO3 and MO4. PW28 Rahana Beevi deposed that the second accused resided on rental arrangement in the first floor of the house belonging to her. PW32 Rajan who is an attesting witness to Ext.P24 mahazar turned hostile. But he admitted his signature in Ext.P24.
32. In the decision reported in Modan Singh v. State of Rajasthan (A.I.R. 1978 SC 1511), it was held that if the evidence of investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version.
33. In the present case since the evidence of PW64 Investigating Officer is convincing regarding the recovery of Crl. A.1450, 1791 & 1981/08 :29: MOs, we are of the view that his evidence has to be accepted as true even though some of the attesting witnesses turned hostile due to one reason or the other.
34. PW1 is the mother of deceased Ganesan. She identified MO1 elas, MO2 watch, MO3 gold ring and MO4 chain in which elas was tied as the articles worn by deceased Ganesan. PW2 is the father-in-law of deceased Ganesan. Ganesan married CW1 who is the daughter of PW2. CW1 committed suicide knowing that her husband Ganesan was murdered. PW2 identified MO14 as the torch which was carried by deceased Ganesan when he left with the car.
35. PW3 Shihabudeen was examined to prove the ownership of the car bearing registration No.KBT 1558 who stated that it was in the name of the wife (CW8) of his brother (CW9). Through him the articles fixed in the car which have been allegedly disposed of by the accused at various stations, and thereafter recovered, have been identified. PW3 Shihabudeen had travelled with PW64, the Investigating Officer at various places for identifying the articles recovered. He deposed that the car is in the name of the wife of his brother. Crl. A.1450, 1791 & 1981/08 :30: He had seen Ganesan on the day Ganesan disappeared. According to the witness he owned an ambassador car at an earlier occasion and he had fitted, fancy items brought from gulf in the said car. He sold that car and at that time all those fancy items were removed and fitted in the car involved in this case. He had stated about the items fitted in that car as road star stereo, ariel, two side mirror glass, two show lights in front side, fancy wheel cup etc. It is relevant to note that all those items were not there in the car when it was found out at Thonnakkal. He said that cooling paper procured by him was not pasted on the glass and was kept inside it.
36. With the help of PW4, a taxi driver, the car involved in the case was taken to the Mangalapuram Police station from the estate road of Vidhyadharan where it was found in an abandoned stage. PW5 is the Head Constable attached to the said police station who had accompanied the Sub Inspector to Thonnakkal where the car was found as abandoned. Ext.P1 is the observation mahazar in respect of the car prepared by PW64. On the way to various places, the accused (nos.1, 2 and
5) had stayed in two lodges at Goodalloor and one among them Crl. A.1450, 1791 & 1981/08 :31: is Murali lodge. PW19 is the Manager of Murali lodge. He was examined to prove that the accused had occupied a room in Murali Lodge. Ext.P14 is the mahazar prepared in respect of MO11 register and MO11(a) is the relevant page of the register in respect of room No.20 which was occupied by the accused. PW20 was a staff of the Murali lodge and he put his signature in Ext.P14. PW21 is the owner of Palace lodge at Goodalloor and PW22 is his wife. In the said lodge the accused 1,3 and 5 occupied room No.4. Ext.P15 is the mahazar and Ext.P12 and MO12 and MO12(a) are the registers in respect of the lodge, proved by the witness.
37. Ambassador Car bearing reg. No. KBT 1558 was found as abandoned in the estate road of one Vidhyadharan at Thonnakkal within the jurisdiction of Managalapuram police station. PW46 was the finger print expert in the Finger Print Bureau of Thiruvananthapuram Rural. He has testified that on 26.3.1993 he was asked by the Managalapuram police to examine a car left abandoned and thus he inspected the car and developed a chance print from it and on 18.5.1993 the fingerprints of certain suspects have been forwarded to him. Crl. A.1450, 1791 & 1981/08 :32: On 20.5.1993 he examined those prints with the chance print developed from the car and filed Ext.P36 report stating that "one of the finger impressions developed from the car is identical with the right thumb impression of Shibu. S/o.Kuttappan (first accused). Ext.P37 is the detailed opinion furnished by the witness. The evidence of PW46 that he had inspected the car at the spot itself has been corroborated by the evidence of PW5, the Head Constable of Mangalapuram police station. He has spoken that on getting information that such a car bearing registration no. K.B.T. 1558 was found there as abandoned, that the Sub Inspector went to the spot, he followed him and thereafter the information was conveyed to the finger print expert and the finger print expert had taken chance prints.
38. On appreciating the evidence on record, we are of the view that the prosecution has succeeded in proving the following facts beyond reasonable doubt:
(i) The ambassador taxi car bearing Reg. No.K.B.T. 1558 was found missing with its driver Ganesan around 2.45 P.M. on 11.3.1993 from the taxi stand at Kuttichal Crl. A.1450, 1791 & 1981/08 :33: and decomposed dead body of Ganesan was found out on 20.3.1993 along the side of the sub way leading to Kumarapuram which starts from Madurai - Tirunalveli National Highway. The evidence on record proved that Ganesan was murdered.
(ii) Ganesan's personal belonging such as MO1 elas, MO2 watch, MO3 gold ring, MO4 gilt chain and MO14 torch light were also found missing and the dead body was in a naked state.
(iii) The car bearing reg. No. KBT 1558 which was found missing from 11.3.1993 along with its driver Ganesan, was found abandoned on 26.3.1993 at Thonnakkal, Thiruvananthapuram after a gap of 15 days.
(iv) Ext.P1 and Ext.P39 mahazars in respect of the car proved that all removable valuables items in the car, which were not necessary for running a car, were removed.
(v) The chance print taken from the rear view mirror of the car on 26.3.1993 has been found as that of the right thumb impression of the first accused Shibu. The first Crl. A.1450, 1791 & 1981/08 :34: accused has no explanation how his finger print was found on that car.
(vi) The first accused met PW41 Ashkar at Kollam for disposing of an ambassador car for dismantling and when PW41 insisted to see the records of the car, the first accused could not produce the same.
(vii) MO1, MO3 and MO4 which were personal belongings of deceased Ganesan had been recovered from the room in which the second accused was residing, on the basis of disclosure statement given by the second accused.
(viii) The prosecution case is that accused nos. 1 to 4 had hired the car under the pretext of purchasing film from Nagercoil. Second accused was conducting a Cinema theatre at that time.
(ix) MO8 stepney tyre of that car was sold by accused no.1 to PW14.
(x) MO2 wrist watch owned by deceased Ganesan was recovered from Mettupalayam as per the statement given by the third accused and the third accused has no Crl. A.1450, 1791 & 1981/08 :35: explanation how that watch reached his hands.
(xi) Third accused has supplied the information in respect of the place where the dead body of Ganesan was abandoned.
(xii) MO7 stereo used in the car was recovered from PW17 on the basis of disclosure statement given by the first accused.
(xiii) MO6 cooling paper kept in the car was recovered from PW42 on the basis of the disclosure statement of the first accused.
(xiv) On 14.3.1993 around 5.45 P.M. the first accused Shibu, third accused Ambeesan and fifth accused Ullas occupied room no.4 at the Palace Lodge in Goodallur and they vacated the room on the next day.
(xv) On 21.3.1993 the first accused and the third accused occupied room no.20 of New Murali Lodge at Goodallur and they vacated the room only on 24.3.1993.
(xvi) MO5 aerial was recovered on the basis of disclosure statement given by the third accused.
(xvii) MO8(a), MO9 and MO10, the old stepney tyre, Crl. A.1450, 1791 & 1981/08 :36: disc and tube which were identified by PW3 as that of that car, were recovered on the basis of disclosure statement given by the first accused.
39. In the decision reported in Baiju v. State of Madhya Pradesh (A.I.R. 1978 S.C. 522), it was held that in the case in question the prosecution succeeded in proving beyond any doubt that the commission of the murders and the robbery formed part of one transaction, and the recent and unexplained possession of the stolen property by the accused appellant justified the presumption that it was he, and no one else, who had committed the murders and the robbery. The stolen property was recovered from the house of the appellant or at his instance within a week's time from the date of commission of the offence. The appellant was given an opportunity to explain his possession, as well as his conduct in decoying the persons who died at his hand, but he was unable to do so. The question whether a presumption should be drawn under illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner of its Crl. A.1450, 1791 & 1981/08 :37: acquisition by the owner, the nature of the evidence about its identification, the manner in which it was dealt with by the appellant, the place and the circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision. Further there was ample justification for reaching the inevitable conclusion that it was the appellant and no one else who had committed the four murders and the robbery. In the face of the overwhelming evidence on which reliance has been placed by the High Court, it is futile to argue that the murders could not have been committed by a single person.
40. In the decision reported in Earbhadrappa v. State of Karnataka (A.I.R. 1983 S.C. 446), it was held that the nature of presumption under illustration (a) to S. 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession of stolen property sufficient to justify the presumption of guilt Crl. A.1450, 1791 & 1981/08 :38: varies according as the stolen article is or is not calculated to pass readily from hand to hand. Where the accused was charged for murder and robbery, mere fact that a period of one year had lapsed between the commission of offence and discovery of stolen articles would not lead to the presumption that the accused was only a receiver of stolen property and had not committed murder, particularly when accused was absconding during that period.
41. In the present case the murder of Ganesan and robbery of his belongings and the car are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) to Section 114 of the Evidence Act is that not only the accused nos. 1 to 4 committed the murder of deceased Ganesan, but also committed robbery of his belongings and the car which form part of the same transaction. In that transaction they have committed other offences also charged against them. Therefore we are of the view that the learned Additional Sessions Judge was perfectly justified in convicting accused nos.1 to 3 for the offences under Sections 120-B, 302, 364, Crl. A.1450, 1791 & 1981/08 :39: 397, 382, 201 and 404 read with Section 34 of the Indian Penal Code. Since the Additional Sessions Court awarded only reasonable sentence for the above offences, we are not interfering with the sentence in respect of accused nos.1 to 3.
42. According to the prosecution case, the fifth accused committed an offence under Section 414 of the Indian Penal Code, by assisting the accused in concealing the stolen property. Accused nos. 1, 3 and 5 are near relatives. According to the prosecution case, the fifth accused found the other accused only when they reached at Kollam after the murder of Ganesan. The evidence on record does not show that the fifth accused was aware of the murder of Ganesan or that the car was a stolen one. In order to punish the fifth accused under Section 414 of the Indian Penal Code, he should have voluntarily assisted in concealing or disposing or making away with the property which he knows or has reason to believe to be stolen property. There is no evidence to show that the fifth accused committed the offence under Section 414 of the Indian Penal Code. Therefore the conviction and sentence of the fifth accused under Section 414 of the Indian Crl. A.1450, 1791 & 1981/08 :40: Penal Code has to be set aside by allowing Crl. Appeal No.1450 of 2008. Since the fifth accused is not found guilty under Section 414 of the Indian Penal Code, there is no necessity to deal with his case under the provisions of Juvenile Justice Act, 2000.
Accordingly Crl. Appeal No.1450 of 2008 is allowed and the conviction and sentence of the fifth accused under Section 414 of the Indian Penal Code is set aside and he is acquitted and set at liberty. The fifth accused is already on bail and therefore there is no necessity to direct his release.
Crl Appeal Nos. 1791 and 1981 of 2008 are dismissed confirming the conviction and sentence imposed on accused nos.1, 2 and 3 by the learned Additional Sessions Judge (Fast Track Court No.1), Thiruvananthapuram.
SD/ K.T. SANKARAN, (JUDGE) SD/ M. L. JOSEPH FRANCIS, dl/ (JUDGE)