Kerala High Court
Thomas Joseph @ Roshan vs State Of Kerala on 30 January, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 31ST DAY OF OCTOBER 2017/9TH KARTHIKA, 1939
CRL.A.No. 259 of 2012
AGAINST THE JUDGMENT IN SC.NO.195/2009 IST ADDLITIONAL SESSIONS JUDGE,
THODUPUZHA, DATED 30.1.2012
APPELLANT/ACCUSED:
THOMAS JOSEPH @ ROSHAN
S/O.JOSEPH,
PERINGALAM THARAPPEL HOUSE,
NEAR AMBADI ESTATE, VELLARAMKUNNU KARA,
PERIYAR VILLAGE.
BYADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT/STATE:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM (CRIME NO.192/07 OF
KUMILI POLICE STATION, IDUKKI DISTRICT).
BY SPECIAL PUBLIC PROSECUTOR
SMT.AMBIKA DEVI. S.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.9.2017,
THE COURT ON 31-10-2017, DELIVERED THE FOLLOWING:
A.M.Shaffique & P.Somarajan, JJ.
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Crl. A. No.259 of 2012
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Dated this the 31st day of October, 2017
JUDGMENT
Somarajan, J.
The accused came up with this appeal challenging the conviction and sentence passed against him in the judgment dated 30.1.2012 in S.C.No.195/2009 of the I Addl. Sessions Judge, Thodupuzha.
2. The accused was charge sheeted and tried alleging offence under Sections 302, 354 and 201 IPC in connection with the death of a minor girl aged 17 years, whose body was found in a water tank situated about 21.39 metres north of her house. The alleged incident happened on 1.6.2007 between 9.30 a.m. and 12.45 p.m..
3. The case unfolded through the prosecution is as follows:
The incident happened while the young girl Vidya was residing along with her parents at Kumily (Odamedu in Periyar village). The Crl. A. No.259 of 2012 :: 2 ::
accused is her neighbour. Her father was working as a salesman in a toddy shop at Pampady. Her mother hailed from Kottayam. The victim completed her plus two course and went to her mother's house for holiday and returned on 31.5.2007. The alleged incident took place on the next day, i.e. on 1.6.2007. Her mother left the house by 9.30 a.m. to remit electricity charges. On the way, she met the accused and had some casual talk. When she returned to the house by 12.45 p.m., the minor girl was found missing and the enquiries made by her in the neighbouring houses went in futile. So, she informed the matter to her husband through telephone and he along with some of his friends and neighbours made an extensive search in the neighbourhood. Thereon, the body of the minor girl Vidya was found in the water tank, situated 21.39 metres north to their house. Though she was immediately removed to the Periyar Hospital, death was confirmed and her body was removed to the Primary Health Centre, Kumily. One of their neighbours thereon gave Ext.P1 FIS to the Kumily Police Station and Ext.P8 FIR was registered initially under S.174 Cr.P.C. Later on, the offence under Sections 354 and 201 IPC were added and after the completion of investigation final report was submitted.
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4. The prosecution has examined PW1 to PW20, got marked Exts.P1 to P25 and identified MO1 to MO21. The learned Sessions Judge found the accused guilty for the offence punishable under S.302 IPC and convicted thereunder and sentenced to undergo imprisonment for life by the impugned judgment which is under challenge in this Appeal.
5. There is no eye witness to the alleged incident. Hence, the prosecution heavily relied on the circumstantial evidence. The circumstances relied on by the prosecution are the following: (1) The accused had chance of knowing that the girl was in the house while her parents were away (deposition of PW2). (2) After the alleged occurrence the accused was found to be highly tensed and nervous. He was found to be non-attentive and was found walking in the courtyard of his house highly tensed mood and indifferently entered in the house and gone out of the house (the deposition of PW6). (3) The accused had applied dettol and kerosene over his body after removing the shirt and also applied over the shirt and lunki just after the incident. (deposition of PW6). (4) Accused had Crl. A. No.259 of 2012 :: 4 ::
prepared a cow dung solution under the guise of using the same to the pepper wine plants, but he used the same and poured the same over the courtyard of his house instead of applying the same to the pepper wine plants. It was done by him just after the occurrence. (oral deposition of PW6). (5) On the next day the accused found to be highly tensed and nervous on getting information that the police is going to employ a sniff dog. (6) On getting the said information, the accused went away and absconded from his house. (7) The accused along with PW6 though went to the place where the dead body was found lying in a tank, but he did not make any attempt to help the other persons to remove the injured from the water tank or to bring her body to the jeep so as to remove her to the hospital. On seeing the body, he immediately went away from the said place. (8) The accused fully and completely abstained from the house of the deceased and funeral functions though he had maintained a cordial relationship and intimacy with the family of the deceased. On an earlier occasion, he had taken prominent role in the funeral function connected with the death of the victim's grandfather and he was all along there in the house of the victim and attended the funeral function and no explanation was forwarded by the accused in his Crl. A. No.259 of 2012 :: 5 ::
313 examination why he had abstained from the house of the deceased and the funeral functions. (Deposition of PW3, PW4, PW5, PW6, PW8 and 313 statement.) (9) Human blood stain of AB group found on the foot wears seized from the house of the accused. (Ext.P20, oral deposition of PW10, Ext.P6 mahazar.) (10) Hairs similar to the scalp hair collected from the accused found to be similar to that of the hairs taken from the churidar of the deceased and the stone recovered from the place of occurrence. (Oral deposition of PW17, PW20 and Ext.P25). (11) Blood stained stone recovered from the water tank was found to be removed from the place identified by the accused. (12) The medical evidence supports the prosecution case of homicidal death.
6. It was submitted by the appellant that: (1) the circumstance alleged were not proved convincingly, (2) that the circumstance are not complete and not free from other hypothesis rather than what is consistent with the guilt of accused, (3) that the main circumstances were brought in evidence by way of embellishments, (4) chances of manipulation cannot be ruled out especially when the material objects were received by the court after Crl. A. No.259 of 2012 :: 6 ::
considerable delay, (5) no satisfactory evidence was brought out by the prosecution, (6) even no theory of last seen suggested by the prosecution, (7) the recoveries alleged to have been made will not come under the purview of S.27 of the Evidence Act and that (8) PW4 was one of the suspects at the initial stage of investigation and his involvement has not been satisfactorily ruled out by the prosecution.
7. PW1 is the first informant who gave Ext.P1 FIS before the Sub Inspector of Police, Kumily on 1.6.2007 at 6.30 p.m.. By that time, the body of the victim was found in a nearby water tank situated on the back side of the house of the victim. The Body was removed from the water tank. It was PW4 who detected the body of Vidya in a nearby water tank. There is no much dispute with respect to the cause of death of the victim as spoken by PW19, the doctor who conducted autopsy on the body of the deceased and issued Ext.P22 postmortem examination report. The opinion of PW19 Doctor regarding the cause of death is that the death was due to head injuries sustained by the victim. According to him, the ante- mortem injury Nos.1 to 5 and 16 sustained to the head could be possible by hitting with a weapon like MO7 and that it could be Crl. A. No.259 of 2012 :: 7 ::
possible to produce all these injuries by MO6 also. The other injuries noted in the postmortem examination report as ante-mortem injuries 8 to 15 could be possible by dragging the victim on a rough surface. It has also come out in evidence that the house of the victim is situated within an area of one acre of landed property situated with uneven surface and there were granite stones in that property. It has also come out from the oral evidence of PW2, PW3 and PW4 that the property in the backside of the said house is lying in a lower level slanting towards the tank (pond) situated on its backside and there are stone built kayyalas on the side of the property. The property on the backside of the house of the victim is slanting towards the pond and there were granite stones and rough surface slanting towards the pond. This would probabilise the origin of ante-mortem injuries 8 to 15 by dragging of the body of the injured through the rough surface as spoken by PW19 Doctor. The oral evidence tendered by PW19 Doctor who issued the postmortem report would satisfactorily prove that the death of Vidya is a homicidal death.
8. The version given by PW2 that she had seen accused on her Crl. A. No.259 of 2012 :: 8 ::
way for remitting electricity charge by 9.30 a.m., that her daughter was found missing when she came back to the house by 12.45 p.m. and subsequently her body was recovered from the tank situated on the backside of the house with the injuries on her head would sufficiently show that the incident happened in between 9.30 a.m. and 12.45 p.m. on the ill-fated day. At that time, both PW2 mother and PW3 father were not in the house. Her younger two children were playing outside the house. She saw both the children playing outside the house when she had gone out of the house to remit electricity charges and when she returned back they were found playing in the house compound. The house compound is having an extent of more than one acre. It was deposed by PW4 and also well evident from the scene mahazar that the back courtyard is filled up by heavy growth and slanting towards the pond. This would show the possibility of an attack on the victim while she was alone in the house either at the backyard of the house or somewhere near to that place. The fact that the victim was alone in the house and her father and mother were away from the house was known to the accused and the presence of the accused at the time when PW2 had gone out of the house are established by the prosecution through the oral evidence tendered by PW2 and PW3. Even according to PW2 and PW3, they were in cordial relationship with the accused and never had an Crl. A. No.259 of 2012 :: 9 ::
occasion to have some enmity or hatredness. No material contradiction or omission were brought out during the cross examination of PW2 and PW3. On the other hand, they are in agreement with the sequence of incident which happened as alleged by the prosecution.
9. The oral evidence tendered by PW6 one Rahul is having high probative value as he was a close friend of the accused. He used to visit the house of accused frequently. On the alleged day, i.e., on 1.6.2007, PW6 went to the house of the accused after 10 a.m., for the purpose of recharging the battery of his mobile phone and to watch TV programme. At that time the accused was there in the house and he was found changing TV channels one by one. He was found highly tensed and nervous. His body was found soaked with sweat. Immediately, the accused went out of the house but within no time he returned. Again he went out of the house stating that he wants to bring some cow dung solution to the pepper wine plants. Thereafter, he brought some cow dung solution and poured it on the front courtyard, instead of pouring the same to the pepper wine plants. He came back to the house by 12.35 p.m.. PW6 came back to his house and had his food. Then by 2.15 p.m., he again went to the house of accused. Thereon they heard a sound and accused enquired whether it is from the house of PW3. Then they went Crl. A. No.259 of 2012 :: 10 ::
to the backyard of the house of PW3 and found the removal of body of the victim from the tank situated on the backside. The accused did not offer any help to the person who attempted to remove the body of the victim and even he did not join with other persons to remove the injured from the tank to the jeep. But, he immediately returned to his house. When PW6 went to the house of accused again, he had seen the accused applying kerosene and dettol over his body after removing the shirt. He had also applied dettol and kerosene over his shirt also. On the next day by 11 a.m., PW6 again went to the house of accused. By that time there were some talk that the police is going to employ a sniff dog. Hearing the said news the accused again became nervous. Tension was writ large on his face. The sniff dog employed came up to the property of Roshan, the accused herein. But by that time, the accused absconded the place stating that he had to go Chemmannu. All these circumstances were brought out through PW6 by the prosecution. Nothing was brought out to discredit his evidence. No material omission or contradiction was brought out. On the other hand his evidence is found to be so reliable as he is a close friend of the accused and a frequent visitor of the accused. His presence in the house is highly probable. At that time there was no electric connection to his house and that is why he used to go to the house of accused for watching TV programme as well as for recharging Crl. A. No.259 of 2012 :: 11 ::
the battery of the mobile phone. The fact that the accused was found highly tensed and nervous and he had applied kerosene and dettol over his body after removing the shirt and also the shirt as spoken by PW6 would sufficiently show that he was having something to conceal from the notice of others either by smell or sight. It is not explained by the accused during his examination under 313 Cr.P.C.. what is behind his unusual behaviour in applying kerosene and dettol over his body and shirt on the ill-fated day after 10 a.m. This has to be co-related with the fact spoken by PW2 that she had seen the accused in his compound which is abutting into the property by 9.30 a.m., on that day. The oral evidence tendered by PW6 that he had found the accused nervous and highly tensed at that time would sufficiently show that the accused was trying to conceal something from the notice of others fearing evil consequences. At that time, the accused was found soaked with sweat. All these would show that he was in a frightened stage when PW6 had seen him on the ill-fated day after 10 a.m.
10. The unusual behaviour of the accused is further evident from the fact that he was wandering in and out of the house as well as in the court yard in a highly disturbed manner. Further, he had gone out of the house under the guise that he wanted to bring some cow dung solution to Crl. A. No.259 of 2012 :: 12 ::
the pepper wine plants and under that guise he brought some cow dung solution and poured over the front courtyard of his houe instead of using the same to the pepper wine plants. This would also show that he wants to eliminate something from the courtyard of the said house which could be detectable either by smell or by sight. No explanation was forwarded by the accused during his examination under S.313 why he had applied cow dung solution over the front courtyard of the house.
11. The accused went to the place of occurrence on hearing the sound and had seen the removal of the injured victim from the tank. Though he is a nearest neighbour of PW2 and PW3 maintaining a very cordial relationship, he did not offer any help or join with others who tried to bring the victim from the tank. He did not offer any help to remove the victim to jeep. But he immediately went away from that place, for which also no explanation is forthcoming during his examination under Section 313 Cr.P.C..
12. On the next day, he absconded from his house by 11 a.m. when he heard about employment of a sniff dog by the police. At that time also he was found frightened and highly tensed. The sniff dog went up to the compound of the accused.
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13. The oral evidence tendered by PW2 and PW3 regarding absence of the accused and non-participation in the funeral of the victim is yet another circumstance pointing towards the guilt of the accused. On a former occasion, he had afforded all sorts of help in connection with the death of the grandfather of the victim and lighted a lamp near to the body of the deceased in his free volition and remained in the said house till the completion of funeral. But, he abstained from attending the house of the victim and even the funeral of the victim and all along kept away from that place. All the neighbours including the father and near relatives of the accused except the accused herein, participated in the funeral and attended the kith and kin of the deceased. It was supported by the oral evidence tendered by PW8, the aunt of PW2 and gave sufficient corroboration to the oral evidence tendered by both PW2 and PW3 in that behalf. For which, no explanation whatsoever forwarded by the accused during his examination under Section 313 Cr.P.C.
14. The oral testimony given by PW6 regarding the non-helping attitude of the accused when the body of the victim was removed from the pond and brought the same to the jeep was also spoken by PW4 Biju the neighbour who detected the body of the victim from the tank and assisted in bringing back the body from the tank to the jeep. This has to be read Crl. A. No.259 of 2012 :: 14 ::
along with the fact that the residence of the accused is the next one situated in the adjoining property of the victim and it is the nearest house and it could be possible to see the said house from the house of the victim. PW4 has also deposed that at the initial stage his name was also taken as a suspected person. PW4 was actually summoned to the place by his father through telephone and he came to the place as instructed by his father through telephone. On getting information, he had also joined with others to have a search in the property. This version of PW4 stood as supported by the oral evidence tendered by PW2 and PW3 and nothing was brought to our notice to show the involvement of PW4 in the alleged incident.
15. The oral evidence tendered by PW4 stood as supported by the oral evidence of PW5 Aneesh who had given full support to the version given by PW4. He along with PW4 accompanied the victim to the hospital after her removal from the tank. He is also a witness to Ext.P2 inquest conducted over the body of the victim. Both PW4 and PW5 denied the suggestion of the accused that he had also joined to remove the injured to the hospital in a jeep. All these circumstances would squarely come under the purview of S.8 of the Evidence Act and are relevant.
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16. Human blood stain of AB group found on the foot wears seized from the house of the accused. Ext.P6 is the mahazar. PW10 is the witness to Ext.P6 mahazar and the recovery of MO5, a pair of blood stained chappels, MO2 shirt and MO3 kaily from the house of accused in furtherance of the disclosure statement alleged to have been given by the accused while he was under the police custody. No human blood was detected on MO2 and MO3 shirt and kaily which are item Nos.16 and 17 as per Ext.P20 FSL report. Hence it cannot be brought under the purview of S.27 of the Evidence Act especially when it was not lying concealed but recovered from the house of the accused. MO5 series, a pair of chappels, stained by blood, alleged to have been recovered under the disclosure statement cannot be brought under S.27 of the Evidence Act on the reason that it was recovered from the house of the accused and it would be within the reach of investigating officer if a proper search was conducted in the house of the accused. Further it was not lying concealed as it was kept under the lower side of the bed in the house of accused. It is item No.18 in Ext.P20 and origin of the blood is not detected though it was stained by blood Crl. A. No.259 of 2012 :: 16 ::
and hence it cannot be brought under the purview of S.27 of the Evidence Act. It was brought to our notice that there is some inordinate delay in forwarding MO2 shirt, MO3 kaily and MO5, a pair of blood stained chappels, and contended that no reliance can be placed on these documents as well as the FSL report and took support from the decision of a Division Bench of this Court in Yohannan @ Biju v. State of Kerala (2016 (4) KHC 881). It was also contended that when the prosecution is relying on circumstantial evidence, discovery of any incriminating material has to be proved with clear and corroborative evidence and that each link in the chain of circumstantial evidence need to be established and drawn our attention to the decision of the Apex Court in Vijay Thakkur v. State of Himachal Pradesh (2014 KHC 4606: 2014 (2) KLD 785: 2014 (11) SCALE 63: 2014 (4) KLT SN 102: 2014 Crl.LJ.4906: 2014 (14) SCC 609). As discussed in earlier paragraphs, no reliance can be placed on the alleged recovery of MO2, MO3 and MO5 as they did not satisfy the requirement of an incriminating factor attached to it.
17. The scalp hairs collected from the accused was found Crl. A. No.259 of 2012 :: 17 ::
similar to the hairs taken from the churidar of the deceased and the stone recovered from the place of occurrence. PW17 is the Asst. Director of Biology, Forensic Science Laboratory, Trivandrum, who prepared FSL report regarding the comparison made on scalp hairs collected from the accused and the hairs taken from the churidar of the deceased and the stone taken from the place of occurrence which are item Nos.2(a), 4, 13, 15(b) (1) and (19). The report says that (1) the hairs in item 2(a) are human scalp hairs which are similar to the sample scalp hairs in item No.19. (2) the hairs in item 4 and 13 are human scalp hairs which are similar to the sample scalp hairs in item No.19. This would clearly show and stood as an incriminating circumstance against the accused and no explanation was forwarded by the accused during his examination under S.313 Cr.P.C. in that behalf.
18. It is settled that in a case of the prosecution based on circumstantial evidence, the circumstance from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in forming a chain without any gap. It must be consistent only with the hypothesis of guilt of the accused, totally Crl. A. No.259 of 2012 :: 18 ::
inconsistent with his innocence. The Apex Court had reiterated that principle in so many cases. (See Hukum Singh v. State of Rajasthan, 1977 (2)SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, Earabhadrappa v. State of Karnataka, 1983 (2) SCC 330, State of U.P. v. Sukhbasi, 1985 Supp. SCC 79, Balwinder Singh v. State of Punjab, 1987 (1) SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989Supp. (1) SCC 560)).
19. The very same legal position was followed in the decision in C. Chenga Reddy v. State of A.P., 1996 (10) SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
20. It was again reiterated in Bodhraj @ Bodha and Others Crl. A. No.259 of 2012 :: 19 ::
v. State of Jammu and Kashmir, 2002 KHC 1050: 2002 (8) SCC 45: 2002 (3) KLT SN 137: 2003 (1) KLJ NOC 11: AIR 2002 SC 3164: 2002 CriLJ 4664, wherein the Court quoted number of judgments and held as under:
"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person."
21. Again the same view was taken in Nizam and Another v. State of Rajasthan (2015 KHC 4588).
22. The circumstance, while scrutinizing with all probable hypothesis, we are of the view that the circumstance brought by the prosecution are complete and consistent only with the guilt of the accused and no other hypothesis consistent with the innocence of the accused is possible. The circumstances are complete as starting from the time from which PW2 had seen the accused in the adjoining compound and he came to know about the presence of the Crl. A. No.259 of 2012 :: 20 ::
victim alone in the house. Though the prosecution tried to advance a case of indecent behaviour of his father towards ladies, we are of the opinion that in the instant case it has no role to play. The circumstances which were brought out from the time in which the accused was found in his compound near to the house of the victim till his absconding on the next day when the sniff dog was employed by the investigation team are complete in all respects pointing towards the guilt of the accused alone. Hence, there is no reason for any interference to the finding of guilt of the accused under Section 302 IPC and the conviction thereunder.
Sentence awarded being a lesser one there is no reason for any interference. Hence, the appeal lacks in merits, deserves only dismissal and we do so.
A.M. Shaffique Judge P.Somarajan Judge ahz/