Ouseph K.E. @ Jilson vs State Of Kerala on 27 March, 2024

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Kerala High Court

Ouseph K.E. @ Jilson vs State Of Kerala on 27 March, 2024

The accused in S.C.No.314 of 2014 on the files of the Additional Sessions Court - I, Kalpetta, are the appellants in this appeal. Among them, accused 1 and 3 are brothers. They stand convicted and sentenced for the offences punishable under Sections 120B, 449, 302, 392 and 201 read with Section 34 of Indian Penal Code (IPC).

2. The victim in the case is one Chinnamma. She was aged 68. Her husband passed away long back and after the marriages of her two daughters, Chinnamma was residing alone in her family house. The victim was involved in the activities of her Church and she was also an office bearer of one of the organisations of the Church. On 13.09.2014, when a priest tried to contact the victim over telephone, he could not Crl.A. No.1314 of 2016 -: 3 :- reach her. The priest then enquired with the elder daughter of the victim as to her whereabouts. The said daughter also could not reach the victim when contacted over telephone. She and her husband then proceeded to the house of the victim and when they inspected the house with the neighbours, it was found that the doors of the house were all closed. On being suspicious, when they entered inside the house after breaking open the door of the kitchen, it was found that Chinnamma was lying on the floor of her bedroom in a pool of blood with injuries on her head. The matter was informed by the son-in-law of the deceased to Meppadi Police and a case was registered on the basis of the said information.

3. The investigation in the case revealed that first and third accused who are relatives of the deceased and who had access to the house of the deceased along with the second accused, who is their friend, hatched a criminal conspiracy to commit murder of the deceased as also rob her ornaments and reached her house for the said purpose at about 10.45 p.m. on 12.09.2014. Thereupon, the first and third accused entered the house as usual, prepared and had a meal with the deceased and while the deceased was sleeping, at Crl.A. No.1314 of 2016 -: 4 :- about 2 a.m. on 13.09.2014, the first and third accused who were sleeping in another room and the second accused who was hiding until then outside the house, entered the bedroom of the deceased with a few pieces of rubble and a chopper. The first accused, thereupon hit on the head of the deceased using a piece of the rubble carried by him and when the deceased got up on account of the same, the second accused hacked her using the chopper carried by him and the first accused hacked her using a sickle which he found then beneath the cot of the deceased and the third accused hit the deceased on her head and face using another piece of rubble carried by him, multiple times. Thereupon, the accused left the house, after removing the gold chain, gold ring, ATM card and a few other belongings of the deceased which were kept by her on the table in her bedroom. A final report was accordingly filed alleging commission of various offences including the offences for which they are convicted.

4. On the accused being committed to trial, the Court of Session framed charges against them to which they pleaded not guilty. Thereupon, the prosecution examined 79 witnesses as PWs 1 to 79 and proved through them 120 Crl.A. No.1314 of 2016 -: 5 :- documents as Exts.P1 to P120. MOs 1 to 44 are the material objects in the case. Exts.D1 to D3 are respectively the portions of the statements of PWs 8, 15 and 30 recorded under Section 161 of the Code of Criminal Procedure (the Code) and Exts.D4 and D5 are the documents proved by the accused through a prosecution witness. When the incriminating circumstances were put to the accused in terms of the provisions contained in Section 313 Code, they denied the same and maintained that they are innocent. As the court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence and they examined 5 witnesses on their side at that stage and marked through them three documents as Exts.D6 to D8. The Court of Session, thereupon, on a consideration of the evidence on record, held that the accused are guilty of the offences referred to above, convicted and sentenced them to undergo, among others, imprisonment for life. The accused are aggrieved by their conviction and sentence and hence, this appeal.

5. Heard Sri.M.V.S.Nampoothiry, the learned counsel for the appellants and Smt.Ambika Devi, the learned Public Prosecutor.

Crl.A. No.1314 of 2016

-: 6 :-

6. There is no direct evidence in the case to prove the occurrence. The prosecution, therefore, attempted to prove the occurrence through circumstantial evidence, and it was on a finding that the circumstances proved in the case establish the guilt of the accused, that the Court of Session convicted the accused.

7. The essence of the submissions made by the learned counsel for the accused is that the circumstances proved in the case do not establish, conclusively, that it is the accused who caused the death of the victim and committed robbery of her ornaments. We are not referring here, the various arguments addressed by the learned counsel for the accused as we propose to deal with the same elaborately in the latter part of this judgement. The learned Public Prosecutor, however, supported the impugned judgment submitting that the circumstances proved in the case are sufficient to hold, conclusively, that it was the accused who caused the death of the victim.

8. The point that arises for consideration, therefore, is whether the circumstances proved in the case would establish beyond reasonable doubt that it was the Crl.A. No.1314 of 2016 -: 7 :- accused who caused the death of the victim and committed robbery of her ornaments.

9. Before delving into the point formulated for decision, it is necessary to consider the fundamental question involved in the case, namely as to whether the death of the victim was a homicide. PW54 was the doctor who conducted the autopsy of the body of the victim and issued Ext.P48 report. The ante-mortem injuries noted by PW54 at the time of autopsy as testified by her, are the following:

"1. Lacerated wound, 3.8x0.5x 0.8cm, bone deep, obliquely placed on left side of top of head with underlying cut, fracture of skull bone involving the outer table. Front inner end 9cm above left eye brow and 1.5cm outer to midline.

2. Lacerated wound, 4.5x0.2-2cm x 0.8cm, bone deep, transversely placed on left side of top of head.

Underlying skull bone showed cut fracture involving outer table. Injury was 1cm behind injury No. 1.

3. Lacerated wound, 9x0.3-4.5cm x 0.7cm, bone deep on top of head crossing midline. Injury was 2.5cm behind injury No.2.

4. Lacerated wound, 4x3x1.1cm bone deep, stellate shaped on back of midline of head Underlying skull bone showed depressed fracture (4.5x2.5x0.3cm). Injury was 7cm above occipital protruberance.

5. Incised wound, 9x1x0.9cm bone deep, obliquely placed, on left side of head extending to face. Margin of wound was bruised and hairs were cut. Back upper end 14cm above nape of neck and front lower end was 1.5cm front of tragus of left ear.

6. Incised wound, 7x1.5x0.6cm bone deep, transversely placed, on left side of back of head. Underlying bone cut Crl.A. No.1314 of 2016 -: 8 :- involving outer table of skull. Margins were contused. Front end 3.5cm below injury No. 5.

7. Incised wound, 3x0.5x0.3cm, transversely placed on left pinna of ear involving entire thickness. Injury was 3cm above ear lobule.

8. Incised wound, 14x1.2x1cm bone deep, transversely placed, on left side of face extending from right ala of nose, septum, left ala of nose up to 5cm inner to top of left ear. Underlying cheek bone was cut (0.4cm). Injury directed slightly upwards.

9. Incised wound, 9.5x0.6x0.8cm bone deep, transversely placed, on left side of face. Underlying bone showed cut fracture. Inner end 1.5cm above margin of left upper lip and 0.5cm outer to midline.

10. Incised wound, 3x0.5x0.6cm, on margin of left half of upper lip. The underlying teeth (lateral incisor, canine, premolar 1 & 2, molar 1 and 2) showed fracture separation. Stump of the above teeth with recently cut seen at gum margin.

11. Incised wound, 7x0.5x0.5cm, obliquely placed, on left side of chin. Underlying jaw bone (mandible) showed cut fracture. Lower outer end 2cm above jaw margin and 6cm outer to midline.

12. Incised wound, 4x0.2x0.2cm. transversely, placed, on right side of lower jaw. Inner end 0.5cm below margin of lower lip and 0.3cm outer to midline.

13. Incised wound, 5x0.5x0.5cm bone deep, transversely placed crossing midline on left side of lower jaw. Underlying jaw bone (mandible) showed cut fracture. Injury was 1cm below injury No.12.

14. Incised wound, 4x0.5x0.8cm, obliquely placed on left side of lower jaw. Lower inner end crossing midline. Injury was 0.5cm below injury No. 13.

15. Incised wound, 5.5x1x1.2cm, oblique on left side of lower jaw, crossing midline. Lower inner end 0.5cm below injury No. 14.

16. Incised wound, 3x0.6x1cm, vertical on left side of lower lip extending to chin. Margins were contused. Lower end was 1.2cm outer to midline.

Crl.A. No.1314 of 2016 -: 9 :-

17. Superficial lacerated wounds, 4 in number ranging from 2x0.2-0.4cm to 4x0.5cm over an area 7x4cm on upper part of left side of neck and chin.

18. On reflection of scalp, contusion, 16x12x1cm entire thickness on back and left temporal region of head. Fissured fracture of skull, 9cm long, vertical on middle of back of skull bone. Upper end continued as suture separation of sagittal suture.

19. Depressed fracture, 4.5x2.5x .3cm on occipital bone, 7cm above occipital protuberance, which was corresponding to injury No.4.

20. Diffuse subdural haemorrhage on entire cerebral and cerebellar surface. Thin subarachnoid haemorrhage on both cerebrum and cerebellum. Contusion (6x4x0.5cm each) seen on frontal lobes of both cerebrum (Injury No. 18,19,20 were corresponding internal injuries of injury No. 1 to 4).

21. Multiple linear abrasions ranging from (0.6x0.3cm) to (2.5x0.2cm) over an area 11x5cm on front of right shoulder 4cm below top of shoulder.

22: Lacerated wound 5x1.5x0.3cm on top of right shoulder, transversely placed.

23. Lacerated wound, 2.3x0.5x0.3cm on top of right shoulder, 2cm inner to injury No.22.

24. Lacerated wound 6x3.5x2.5cm on front of right arm, upper end 17cm below top of shoulder.

25. Lacerated wound, 3x2x0.7cm on front of right arm, 7cm above elbow.

26. Lacerated wound, 4x3x0.3cm inner aspect of right arm, upper end 12cm below armpit.

27. Superficial lacerated wound, 1.5x0.5cm on inner aspect of right arm, 10cm below armpit

28. Superficial lacerated wound, 3x0.5cm on inner aspect of right elbow.

29. Contusion, 3.6x3x2cm on front of left arm, 6cm below armpit.

Crl.A. No.1314 of 2016 -: 10 :-

30. Contusion, 3.5x2x2cm on front of left arm, 9cm below armpit

31. Contusion, 2.5x2x1.8cm on front of left arm, 10.5cm below armpit.

(Injury No 29,30 and 31 were grip by hand)

32. Abrasion, 2.5x2cm on outer aspect of left arm, 11cm below top of shoulder.

33 . Incised wound, 2x1x1.5cm on inner aspect of left arm, 10cm below armpit. At its lower end a linear abrasion of 3x0.4cm, vertically placed extending to an incised wound, 17x1-8xbone deep with underlying vertical fracture of left humerus (exposing the bone) extending up to forearm. Lower and 7cm below elbow.

34. Lacerated wound 8x2x2cm on front of left elbow and forearm. Lower end 16 cm above wrist.

35. Lacerated wounds, 3 in no. ranging from 1.5x0.2x0.2cm to 2.1x0.2x0.6 cm on front of middle of left index, middle and ring finder, transversely placed."

The cause of death of the victim was traumatic brain injury due to the combined effect of the multiple cut injuries on the head and face and blunt force injuries sustained to the head. According to PW54, injuries 1 to 20, except 17 are independently fatal in nature and sufficient in the ordinary course of the nature to cause death. It was deposed by PW54 that injuries 1 to 16 can produce injuries 18 to 20; that injuries 22 to 28 and 33 to 35 are defence injuries and that injuries 29, 30 and 31 were grip by hand. It was also deposed by PW54 that injury 33 could be caused by using sharp cutting heavy Crl.A. No.1314 of 2016 -: 11 :- weapon, that may be a curved weapon at its terminal part and that the said injury could be caused also while warding an attack in a flexed elbow. It was further deposed by PW54 that injury 18 could be caused by a blunt force impact or can be due to combined effect of multiple cut injuries. It was further deposed that the nature of injuries suggests that there was use of more than one weapon and therefore there is every chance for involvement of more than one assailant. It was further deposed by PW54 that injuries 1, 2, 22 to 26, 34 and 35 could be caused with the blunt part of the MO25, injuries 5 to 16 could be caused with the sharp edge of MO25 and injury 33 could be caused by MO20 as also by MO25. It was further deposed by PW54 that if MO19 and MO11 are used with controlled moving force, it can produce the injuries 3, 4, 18, 19 and 20. It was further deposed by PW54 that the sharp edge of MOs 19 and 11 can also cause the injuries 1, 2 and 3. In cross- examination, PW54 clarified that since it was found that the injuries were caused with more than one weapon that she deposed that more than one person was involved in the commission of the crime and also that she cannot rule out the possibility of the same person causing all the injuries noted in Crl.A. No.1314 of 2016 -: 12 :- Ext.P48. In the light of the evidence tendered by PW54, especially as regards the cause of death which remain unchallenged, there cannot be any doubt to the fact that the death of the victim was a homicide and we, therefore, affirm the finding rendered by PW54 in this regard.

10. Having considered the fundamental question aforesaid, let us now come back to the point formulated for decision. PW1 was a neighbour of the deceased. PW1 was also a member of the local body within whose limits, the deceased was residing. PW1 was present when the elder daughter of the deceased and her husband entered the house, after breaking open the door. PW1 deposed that he knew all the three accused and all of them were residing in the neighbourhood of his house. PW1 was also a witness to Ext.P1 inquest report and Ext.P2 scene mahazar prepared on the following day. PW1 deposed the said facts in his evidence. PW1 identified MO11 as the piece of rubble and MO18 as the button of a shirt found in the bedroom of the deceased. PW1 also identified MO19 and MO20 as the piece of rubble and sickle respectively, seized by the police from the courtyard of the house of the deceased. PW1 further identified MO23 as the lock of the kitchen door of Crl.A. No.1314 of 2016 -: 13 :- the house broken for the purpose of entering the house. PWs 2, 4 and 5 are neighbours of the deceased who deposed that they saw the deceased on 12.09.2014. Among them, PW2 has also deposed that the second accused was carrying out agricultural operations in a land of the deceased for some time and there was a dispute between them as regards the rent payable by the second accused to the deceased. PW3 is the husband of the elder daughter of the deceased who gave Ext.P4 First Information Statement in the case.

11. PW10 is a person who is running a jewellery in the name Shiny Jewellery. PW10 deposed that he knows the first accused and that he purchased MO28 gold ring from the first accused for a sum of Rs.7,500/-. PW10 also deposed that after two days, the police came to his jewellery shop with the first accused and seized MO28 from him as per Ext.P7 mahazar. PW11 is a witness to the seizure of MO28 gold ring. PW11 is a goldsmith who carries on his work in the veranda of the shop of PW10. PW11 deposed the said facts in his evidence and he also deposed that it was he who weighed MO28 before its seizure.

12. PW7 is another neighbour of the deceased. PW7 deposed that the mobile sim number 9847095437 used Crl.A. No.1314 of 2016 -: 14 :- by the deceased was one taken by PW7 in his name for the use of the deceased as directed by the daughter of the deceased when she gifted a mobile phone to the deceased. PW12 was the Manager of the Kalpetta branch of the State Bank of India and he deposed that Ext.P13 is the ATM card issued to the deceased and Ext.P14 is the communication issued by the Bank to the deceased informing her the PIN number of the ATM card.

13. PW14 is the elder daughter of the deceased and the wife of PW3. PW14 identified MO26 as the gold chain belonging to the deceased and MO28 as the gold ring usually worn by the deceased. PW14 deposed that she knows all the three accused and among them, the first and third accused are related to her and also that the deceased used to treat them as her own children. PW14 also deposed that the first and third accused had the freedom to come and stay with the deceased anytime. PW14 further deposed that the second accused was also very close to the deceased.

14. PW24 is a person who designs and supplies visiting cards. PW24 deposed that he was working for an establishment called "Mass Colour Lab" and while he was working in the said establishment, he designed and supplied Crl.A. No.1314 of 2016 -: 15 :- visiting cards to the first accused and that the copies of the same available with him were seized by the police as per Ext.P24 mahazar. Ext.P25 series are the visiting cards seized as per the said mahazar.

15. PW30 is an auto driver. PW30 deposed that he knows the accused; that on 11.09.2014, he consumed liquor with the second and third accused in the autorickshaw of the third accused and while doing so, when he went out of the autorickshaw for a while, he noticed that the second and third accused were talking. PW30 clarified that he did not overhear their conversation. PW39 is a close relative of the first and third accused. PW39 deposed that he knows the second accused as he was in the company of the first and third accused.

16. PW35 is a person who is running a business concern in the name 'Dreamland, King of Business Concern'. PW35 deposed that the first accused was his Marketing Manager and that the first accused was on leave on 12.09.2014. PW35 also deposed that on 17.09.2014, police came with the first accused to the office and the first accused had handed over to the police a gold chain kept by him in MO27 bag belonging to him. PW35 identified the said gold Crl.A. No.1314 of 2016 -: 16 :- chain as MO26 and MO39 as the shirt usually worn by the first accused when he comes to the office. PW40 is the Manager of the business concern referred to above. PW40 corroborated the evidence tendered by PW35 that the first accused was on leave on 12.09.2014.

17. PW55 was the Assistant Surgeon attached to the General Hospital, Kalpetta as on 17.09.2014. On that day, he had collected blood sample, body hair, scalp hair and nail clippings of the first and third accused as per the request made by the Investigating Officer. PW55 deposed the said facts in his evidence.

18. PW64 is the Nodal Officer of Idea Cellular Limited. PW64 deposed that mobile number 9744124723 is one allotted to PW76, the father of the first and third accused on Ext.P67 application and mobile number 9847095437 is one allotted to PW7. Ext.P64 is the call details of mobile number 9847095437 and Ext.P65 is the call details of mobile number 9744124723 for the period from 01.09.2014 to 16.10.2014. PW64 also deposed that on 11.09.2014 at 20:36:21 hours, there was a call from the number 9744124723 to the number 9847095437 and the duration of the said call was 386 seconds. Crl.A. No.1314 of 2016 -: 17 :- Similarly, it was deposed by PW64 that on 12.09.2014, at 19:23:59 hours, there was a call from mobile number 9744124723 to mobile number 9847095437 and the duration of the said call was 66 seconds. Even though PW76 claimed that he was using the mobile phone number 9744124723, the evidence tendered by PW24, and Ext.P25 series visiting cards designed and printed by PW24 for the first accused showing the mobile number of the first accused as 9744124723 would establish beyond doubt that the said mobile number was being used by the first accused.

19. PW74 is the Scientific Assistant attached to the Forensic Science Laboratory Unit at the District Police Office, Wayanad. PW74 deposed that on 14.09.2014, she visited the scene of occurrence and collected various objects. Ext.P85 is the report prepared by PW74 in this regard. Ext.P85 refers to the various objects collected by PW74 for forensic examination and the same includes blood samples and the hairs found therein. PW75 is the photographer attached to the District Police Office, Wayanad. PW75 deposed that he took photographs of the blood stained footprints found at the scene of occurrence.

Crl.A. No.1314 of 2016

-: 18 :-

20. PW79 is the investigating officer in the case. PW79 deposed that MO11 piece of rubble, MO18 button are among the objects recovered from the scene of occurrence at the time of holding inquest and MO19 piece of rubble and MO20 sickle were recovered from the courtyard of the house of the deceased at the time of preparation of the scene mahazar. It was also deposed by PW79 that the accused were arrested on 16.09.2014 and Exts.P13 ATM Card and P14 communication containing the pin of Ext.P13 ATM Card were seized from the third accused at the time of his arrest as per Ext.P32 mahazar. It was also deposed by PW79 that during interrogation, the second accused disclosed to him that he can show the place where a knife is kept by him and when he was taken to the place as directed by him, he took out from between the grilled bars of the shed behind his house, MO25 chopper and the same was seized by him as per Ext.P8 mahazar. Ext.P8(a) is the information which led to the discovery of the place where MO25 chopper was concealed by the second accused. It was further deposed by PW79 that during interrogation, the first accused disclosed to him that he can show the place where he has kept a pant and when he was taken to that place as directed by him, Crl.A. No.1314 of 2016 -: 19 :- the first accused took out a cover from the bushes on the side of the Bathery-Pulpally Public road and handed over the same to the investigating officer which was seized by PW79 as per Ext.P17 mahazar. MO33 is the plastic cover and MO34 is the pants seized as per Ext.P17 mahazar. Ext.P17(a) is the information which led to the discovery of the place where MO33 plastic cover and MO34 pants were concealed by the first accused. It was further deposed by PW79 that during interrogation, the first accused disclosed to him that he can show the place where he kept the gold chain, and when the first accused was taken to the business concern where he was working as directed by him, he took out MO27 black bag in which MO26 gold chain was kept and handed over the same to PW79 and the same was seized as per Ext.P11 mahazar by PW79. It was further deposed by PW79 that as per Ext.P11 mahazar, Ext.P9 series visiting cards of the first accused showing his mobile number as 9744124723 was also seized. Ext.P11(a) is the information which led to the discovery Ext.P9 series visiting cards, Ext.P10 bank account passbook of the deceased, MO26 gold chain of the deceased and MO27 black bag. PW79 further deposed that during interrogation, the first Crl.A. No.1314 of 2016 -: 20 :- accused disclosed to him that he can show the place where he threw the shirt and when he was taken to that place, he took out from a stream, MO39 shirt, and the same was seized as per Ext.P20 mahazar. Ext.P20(a) is the information which led to the discovery of MO39 shirt. It was also deposed by PW79 that one of the buttons of MO39 shirt was found missing then and MO18 button recovered from the scene of occurrence at the time of preparation of the inquest is found to be the missing button. PW79 further deposed that the third accused disclosed to him during interrogation that he can show the place where the key was discarded and when he was taken to the house of the deceased, he took out and handed over to PW79, MO24 key with key chain from a place on the south-western portion of the courtyard of the house of the deceased after conducting a search therein and the same was seized by him as per Ext.P3 mahazar. Ext.P3(a) is the information which led to the discovery of the place where MO24 key with key chain was discarded by the third accused.

21. PW77 is the Scientific Assistant attached to the Forensic Science Laboratory, Thiruvananthapuram. Exts.P90 to 94 are the reports furnished by the Forensic Science Crl.A. No.1314 of 2016 -: 21 :- Laboratory, of which Ext.P90 is issued from the Serology division, Ext.P91 is issued from the DNA division, Ext.P92 is issued from the Chemistry division, Ext.P93 is issued from the Physics division and Ext.P94 is issued from the Biology division. Based on Ext.P90 report, PW77 deposed that MOs 11, 19, 18, 20 and 34 contained human blood. It was also deposed by PW77 that though MO39 shirt contained blood, the same was insufficient to determine its origin and group. In Ext.P94 report, it is stated that type I hairs collected from the bedsheet found in the room adjacent to the scene of occurrence are found to be human scalp hairs similar to the sample scalp hairs of the first accused. Similarly, it is stated in Ext.P94 report that type II hairs collected from the bedsheet found in the room adjacent to the scene of occurrence are found to be human scalp hairs similar to the sample scalp hairs collected from the second accused.

22. PW78 was the fingerprint expert attached to the District Single Digit Fingerprint Bureau, Wayanad. PW78 deposed that on 14.09.2014, he inspected the scene of occurrence and developed two chance prints and marked three blood prints therein which were photographed by PW75, and Crl.A. No.1314 of 2016 -: 22 :- out of the same, only one blood print was fit for comparison. PW78 deposed that on 29.09.2014, he received footprint slips of the first accused from the Inspector of Police, Kalpetta and on comparison of the same with the blood print remained with him, it was found that the said blood print, marked as M3 is identical with the right foot impression of the first accused. Ext.P97 is the report drawn by PW78 in this regard. Ext.P86(c) is the enlarged photographs of the blood print and Ext.P98 is the enlarged photograph of the specimen print of the accused.

23. It is trite that the following conditions must be fulfilled, in order to hold that an accused in a case on circumstantial evidence is guilty of the offence for which he is charged:

(1) that the circumstances from which the conclusion of guilt is drawn are fully established, (2) that the facts so established are 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) that the circumstances are of a conclusive nature and tendency, (4) that they should exclude every possible hypothesis except that the accused is guilty, and (5) that there must be a chain of evidence so Crl.A. No.1314 of 2016 -: 23 :- 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.

As noted, one of the conditions to be fulfilled in order to hold that an accused in a case on circumstantial evidence is guilty of the offence, is that the circumstances from which the conclusion of guilt is drawn are fully established. In other words, if there is any doubt as to the genuineness of any evidence, the circumstance attempted to be proved making use of the said evidence shall not be taken into account.

24. The evidence tendered by PW79 as regards the discovery of the place from where MO24 key with key chain was discarded by the assailants after closing the kitchen door of the house from outside, is that when the third accused was taken to the house of the deceased based on the information furnished by him, he took and handed over to PW79, MO24 key with keychain from a place on the south-western portion of the courtyard of the house of the deceased, after conducting a search therein. The relevant portion of the deposition reads thus:

"....... കത ത ൽ വ ച വ ലവ ട ച നമ ത മസ ച രന ടവ വതക പട ഞ റ Crl.A. No.1314 of 2016 -: 24 :- മ റ യള സല# A3 ണ ചതന. അ വട ത രച ൽ നടത യ ശ,ഷ# A3 എടത എവ മൻപ ൽ ഹ ജര ക യ MO24 ത ശക ൽ Ext.P3 മഹസർ പ ര# ഞ ൻ ബന സ ൽ എടത. "

PW2 is a witness to Ext.P3 mahazar. The version of PW2 as regards the recovery of MO24 key with key chain was that when the third accused was brought to the house of the deceased, he took out a key from the southern side of the house. The relevant portion of the deposition reads thus:

"ഈ ശ സവല A3 വയ police arrest വചയ സ#ഭ സലത വ ണ ന. (The witness identified the A3 before the court) ട ട പടഞ റ ദർ,ന# ആണ. അതവ ഇടത ,ത (south) വ ചരന ഒര ത ശക ൽ A3 എടത police മമ വ ഹ ജര ക . "

(underline supplied) The extracted evidence of PW2 gives an impression that MO24 key was taken somewhere from the house itself, and not from the courtyard as spoken to by PW79. Be that as it may, in cross-examination of PW2, it has come out that there was a search by the police and also persons who assembled at the house of the deceased when the third accused was brought, in the courtyard of the house and it is in the said search, that the key was traced out. The relevant portion of the evidence reads thus:

"A3 യ# police ഉ# MO24 ശത ടതല# മറത# തരഞ ശന ക . അ വട ആള ൾ കട .

അ ര# തരഞ ശന ക . അശ ഴ ണ MO24 ത ശക ൽ ടയത (Q) അവത (A)."

Crl.A. No.1314 of 2016 -: 25 :-

The extracted portion of the evidence does not indicate as to who traced out the key. Of course, in re-examination, PW2 clarified that it was the third accused who had shown the place where the search was conducted and the key was handed over to the investigating officer by the third accused himself. The relevant portion of the evidence read thus:

"MO24 തരയ നള സല# ആര ണചവ ടത (Q) A3 ആയരന (A) ട ത ശക ൽ ആര ണ police ൽ എടത ഹ ജര കയത (Q) A3 ആയരന.(A)"

The extracted deposition of PW2 in the re-examination makes it clear that it was not the third accused who traced out the key. But, as noted, what was spoken to by PW2 in his chief- examination was that the key was taken out by the third accused from a place on the southern side of the house of the deceased itself and not from a place on the south-western portion of the courtyard of the house as deposed by PW79, that too, after conducting a search therein not only by him but also the police and others who assembled at the scene then. Needless to say, a doubt is cast on the veracity of the evidence tendered by PW79 in this regard. We are therefore of the view that it is not safe to place reliance on the evidence let in by PW79 in this regard.

Crl.A. No.1314 of 2016

-: 26 :-

25. Placing reliance on the decision of this Court in Sudheer Babu v. State of Kerala, 2013 (2) KLT 168, it was argued by the learned counsel for the accused that it may not be proper to find an accused guilty on the sole basis of a report that the hair samples collected from the scene of occurrence have resemblance with the hair samples collected from him. According to the learned counsel, other than Ext.P94 report of the Forensic Science Laboratory, that type II hairs collected from the bedsheet found in the room adjacent to the scene of occurrence are found to be human scalp hairs similar to the sample scalp hairs collected from the second accused, there is no evidence to connect the second accused with the crime. This Court had occasion to consider the scope of the evidence of this nature in Royson v. State of Kerala, 1990 KHC 528, and it was held therein that even though the said evidence has some imperfections, a study on the same enables an expert to identify any given hair with certainty. Paragraphs 37 and 38 of the judgment read thus:

"37. It was argued for the appellants, based on the decision in Ravi Achan's case (Criminal Appeal Nos. 43 and 51 of 1985) and the Textbook on. Medical Jurisprudence and Toxicology that hair analysis has not yet developed as a perfect science. It is true that on many aspects the science is having certain imperfections, but Crl.A. No.1314 of 2016 -: 27 :- atleast in certain aspects, the science could be considered to have attained atleast nearness to perfection. For example, in the text book of Criminal Investigation by John Adam and Collyer Adam, fifth edition by Richard Leofric Jackson, at page 110, it is said that the detailed structure of the medulla and its diameter, compared with that of the hair shaft as a whole, together with the distribution and character of the pigment, the scale pattern of the cuticle and the appearance of the hair in transverse section, all provide features which, in the aggregate, enable the expert to identify any given hair with certainty. From the microscopic examination itself, it may be possible to say whether the hairs are of the same or of different colours or size and from the examination it may help in deciding where the hairs come from.

38 Ravi Acharis case (Criminal Appeal Nos. 43 and 51 of 1985) was only considering the question whether hair analysis could be the sole basis for conviction. The answer was in the negative. We are not concerned with such a situation. Here, we are having overwhelming circumstantial evidence. Hair analysis is only one of the items. Maghar Singh v. State of Punjab (1975 (4) SCC 234), the opinion of hair analyses was accepted by the Supreme Court as the basis for conviction. The same view was taken by the Supreme Court in Kanhl Karsan Jadav v. State of Gujarat (AIR 1956 SC 821). The opinion given by PW 59 appears to us to be acceptable. In view of his opinion, it is clear that the hairs found in the car were similar to those found near the dead body with the only difference that the former hairs were pulled out, but the latter were not. That also fits in with the prosecution case. This is also, therefore, a strong link in the chain of circumstantial evidence connecting the appellants with the homicidal death of Chandran Nair. So also, that evidence connected the appellants with the offence punishable under S.201 of the Indian Penal Code."

No doubt, as indicated in the said judgment itself, the hair Crl.A. No.1314 of 2016 -: 28 :- analysis cannot be the sole basis of conviction and the same can certainly be one of the circumstances that would form a strong link in the chain of circumstantial evidence connecting the accused with the crime. Since the prosecution has established other incriminating circumstances also against the second accused, namely, Ext. P8(a) disclosure statement, which led to the discovery of the place where the MO25 chopper was concealed by the second accused, and that there is no explanation from the second accused as to how he came to know the said place from where the said object was concealed, as well as the evidence tendered by PWs 14 and 39 as regards the relation the second accused shared with the deceased and the first and third accused, the argument advanced by the learned counsel for the accused is only to be rejected.

26. It was also argued by the learned counsel for the accused that no reliance can be placed on the evidence tendered by PW10 that he purchased MO28 gold ring belonging to the deceased from the first accused. According to the learned counsel, PW10 admitted in his evidence that he Crl.A. No.1314 of 2016 -: 29 :- maintains records in his office such as stock register, cash book, bill book etc. and the same were not seized and produced by the investigating officer to corroborate the evidence tendered by PW10. No doubt, the investigating officer could have seized and produced the said records to corroborate the evidence tendered by PW10 that he purchased MO28 ring from the first accused. But, merely for the said reason, according to us, the evidence tendered by PW10 cannot be rejected.

27. From the discussion aforesaid, according to us, the following circumstances can be said to have been established in the case:

(i) that the deceased was residing alone in her family house and she was seen by her neighbours in the house till 12.09.2014;

(ii) that the first and third accused are distant relatives of the deceased who had the freedom to come and stay with the deceased at any time;

(iii) that the second accused is a person who was residing in the neighbourhood of the house of the deceased earlier and a close associate of the first and third accused; Crl.A. No.1314 of 2016 -: 30 :-

(iv) that the first accused was on leave from his office on 12.09.2014.

(v) that the death of the victim was a homicide and the cause of death was traumatic brain injury due to the combined effect of the multiple cut injuries sustained on the head, face and the blunt injuries to the head;

(vi) that the injuries found on the body of the deceased could be caused by MO25 chopper recovered based on the information furnished by the second accused;

(vii) that MO28 gold ring belonging to the deceased was sold by the first accused to PW10 and no explanation is offered by the first accused as to how he came to be in possession of MO28 gold ring;

(viii) that MO26 gold chain belonging to the deceased was recovered based on information furnished by the first accused from MO27 black bag kept in the business concern where he was working and there is no explanation from the first accused as to how he came to know that MO26 gold chain is kept in MO27 black bag;

(ix) that the first accused has contacted the deceased on 11.09.2014 at 20.36.21 hours and on 12.09.2014 at 19:23:59 hours and it was the first accused who had contacted Crl.A. No.1314 of 2016 -: 31 :- the deceased last on her mobile number;

(x) that Ext.P13 ATM card and Ext.P14 cover containing the PIN of the said ATM card were recovered from the third accused at the time of his arrest;

(xi) MO25 chopper was recovered based on the information furnished by the second accused and there is no explanation from the second accused as to how he came to know the place where MO25 chopper was concealed;

(xii) that there is no explanation from the first accused as to the presence of bloodstains on MO34 pants recovered based on the information furnished by him;

(xiii) that there is no explanation from the first accused as to how MO18 button of MO39 shirt recovered based on information furnished by him happened to be present at the house of the deceased, that too, with stains of blood on it;

(xiv) that there is no explanation from the first accused as to how hairs similar to his hairs were found on the bedsheet found in the room adjacent to the scene of crime;

(xv) that there is no explanation from the second accused as to how hairs similar to his hairs were found on the bedsheet found in the room adjacent to the scene of crime;

28. The learned counsel for the accused Crl.A. No.1314 of 2016 -: 32 :- persuasively argued that going by the prosecution case, the motive for the crime was to commit robbery of the ornaments and cash of the deceased. It was pointed out by the learned counsel that it has come out in evidence that the assailants had not removed all of the gold ornaments and cash kept by the deceased in the draw of the table in her bedroom. According to the learned counsel, it could be inferred from the said evidence that the motive of the assailants was not to rob the deceased of her ornaments and cash. It was argued by the learned counsel that in the absence of any satisfactory evidence as to the motive of the crime, the accused cannot be convicted in a case of this nature, especially when the case is attempted to be established on circumstantial evidence. No doubt, in a case on circumstantial evidence, motive assumes importance. But, merely for the reason that the prosecution could not establish the motive, accused are not entitled to be acquitted, if the evidence let in by the prosecution in the case satisfies the conditions to be fulfilled in a case on circumstantial evidence. Be that as it may, in the case on hand, merely for the reason that the entire ornaments and cash in the house were not removed by the accused after committing murder of the victim, Crl.A. No.1314 of 2016 -: 33 :- it cannot be said that the motive was not to rob the belongings of the deceased, as we cannot rule out the possibility of the remaining gold ornaments and cash kept in the table escaping the notice of the accused.

29. As noted, it was established by the prosecution that MO28 gold ring belonging to the deceased was recovered from the person, namely PW10 to whom MO28 gold ring belonging to the deceased was sold by the first accused and MO26 gold chain was recovered from MO27 black bag of the first accused kept by him in the business concern where he was working. The first accused has not offered any explanation as to how he happened to be in possession of the said ornaments. Section 114 of the Indian Evidence Act enables the court to presume that a man, who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. In this case, as noted, the accused has not accounted for the possession of the ornaments of the deceased which were recovered from him and also from the person to whom the same were sold by the first accused. As such, in the light of the provision contained in Section 114 of the Indian Crl.A. No.1314 of 2016 -: 34 :- Evidence Act, it can be safely concluded that it was the first accused who stole the said ornaments of the deceased. The larger question, however, is whether it can be concluded that it was the accused who caused the death of the victim merely for the reason that her ornaments were recovered from the first accused. In Raj Kumar v. State (NCT of Delhi), (2017) 11 SCC 160, the Apex Court held that even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home, unless there is some evidence to show that the theft/robbery and the murder occurred at the same time, i.e., in the course of the same transaction. The subsisting questions, therefore, are whether the circumstances established in the case on hand are sufficient to hold that the theft/robbery and the murder took place in the same transaction and if so, whether the second and third accused were also present with the first accused while the deceased was murdered.

30. No doubt, the first accused is a person who used to regularly visit the house of the deceased, but the presence of the blood stained footprints of the first accused in the bedroom of the deceased where her body was found, the Crl.A. No.1314 of 2016 -: 35 :- presence of blood stains on the button of MO39 shirt of the first accused recovered from the bedroom of the deceased and the presence of hair similar to the scalp hairs of the first accused on the bedsheet in the bedroom adjacent to the bedroom of the deceased are sufficient, according to us, to hold that the theft and murder took place at the same time as part of the same transaction. The said circumstances, however, are not sufficient to hold that the first accused committed the murder and robbery together with the second and third accused. As far as the second accused is concerned, it has come out from the evidence that MO25 chopper was recovered based on information furnished by the second accused. MO25 chopper did not contain any bloodstain. Of course, the prosecution has a case that the bloodstain therein was washed off by the accused after the occurrence. But, there is no evidence to find the said aspect of the prosecution. In other words, what could be inferred from the recovery of MO25 is only that some of the injuries sustained by the deceased were possible with a weapon in the nature of MO25 chopper, so as to connect the recovery with the occurrence. That apart, the only other material against the second accused is that he is a close Crl.A. No.1314 of 2016 -: 36 :- associate of the first and third accused and that hairs similar to the hairs of the second accused were recovered from the bedsheet found in the room adjacent to the bedroom of the deceased. Unlike the first and third accused, the second accused is not a person who had access to the house of the deceased. On the other hand, the evidence of PW2 would indicate that the second accused and the deceased were not in good terms as there was a dispute between them as regards the rent payable by the second accused to the deceased in respect of a property given on lease by her to the second accused. As such, in the absence of any explanation from the second accused as to how hairs similar to his happened to be present on the bedsheet found adjacent to the bedroom of the deceased, coupled with the facts that he is a close associate of the first accused and MO25 chopper was recovered based on the information furnished by him, it is sufficient, according to us, to hold that the second accused was very much with the first accused to commit the murder of the deceased.

31. Coming to the complicity of the third accused, there is no evidence which establishes the presence of the third accused at the scene of occurrence on 12.09.2014 as in the Crl.A. No.1314 of 2016 -: 37 :- case of the first and second accused. The only evidence against the third accused is that Ext.P13 ATM card and Ext.P14 communication of the bank as regards the PIN number of the said ATM card, were recovered from the third accused at the time of his arrest. Inasmuch as it is found that the first accused who is none other than the brother of the third accused committed theft of the belongings of the deceased, merely for the reason that an ATM card and the communication issued by the bank as regards the PIN number of the ATM card were recovered from the third accused, it cannot be found that he was among the assailants who committed murder of the deceased, for there could be several other reasons for the third accused to carry the said items, if at all the same were recovered from him. Needless to say, the evidence let in by the prosecution is not satisfactory, as far as the complicity of the third accused in the crime is concerned.

32. In this context, it is necessary to notice that one of the charges framed against the accused is that they hatched a criminal conspiracy to commit the murder of the deceased and rob her belongings. If the said case of the prosecution is accepted, it is immaterial whether the third Crl.A. No.1314 of 2016 -: 38 :- accused was physically present with the first and second accused to commit the murder of the deceased. We have examined the materials on record thoroughly and we do not find any evidence other than the evidence tendered by PW30 that on 11.09.2013, he consumed liquor with the second and third accused in the autorickshaw of the third accused and while doing so, when he went out of the autorickshaw for a while, he noticed that the second and third accused were talking with each other. We are afraid, the same is not sufficient to infer that there was a criminal conspiracy among the accused to commit the murder of the deceased and to rob her belongings. In order to establish the offence of criminal conspiracy, three essential elements must be shown namely, a criminal object, a plan or scheme embodying means to accomplish that object, and an agreement between two or more persons to cooperate for the accomplishment of such object [See Rajender v. State (NCT of Delhi), (2019) 10 SCC 623]. It is seen that other than the evidence tendered by PW30, the Court of Session has also relied on the evidence attempted to be proved by the prosecution that there was telephonic conversation between the first and third accused. There is no Crl.A. No.1314 of 2016 -: 39 :- satisfactory evidence in the case to indicate that, unlike in the case of the first accused, the third accused was using one of the mobile numbers obtained by his father, PW76, as alleged by the prosecution, which is stated to have been used by the third accused to contact the first accused. Be that as it may, even assuming that the said evidence of the prosecution can be accepted, it would only show that there was communication between the first and third accused. As they are brothers, in the facts and circumstances of this case, we do not think that such communications can be the basis of criminal conspiracy. In other words, the only evidence available to prove the criminal conspiracy is the evidence tendered by PW30 and according to us, the same is grossly inadequate to render a finding that there was a criminal conspiracy to commit the murder of the deceased. In other words, it has to be found that the prosecution has failed to establish that the accused hatched a criminal conspiracy to commit murder of the deceased and rob her belongings.

33. In the light of the discussion aforesaid, we affirm the finding rendered by the Court of Session that the first and second accused are guilty of the offences punishable under Crl.A. No.1314 of 2016 -: 40 :- Sections 449, 302, 392 and 201 read with Section 34 IPC and set aside the finding to that effect as against the third accused. We also set aside the finding rendered by the Court of Session that the accused are guilty of the offence punishable under Section 120B IPC.

In the result, the appeal is allowed in part, setting aside the conviction and sentence of the accused for the offence punishable under Section 120B IPC and the conviction and sentence of the third accused for the offences punishable under Sections 449, 302, 392 and 201 read with Section 34 IPC and affirming the conviction and sentence of the first and second accused for the offences punishable under Sections 449, 302, 392 and 201 read with Section 34 IPC.

Registry is directed to communicate the above order forthwith to the concerned prison, where the third appellant is undergoing incarceration.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

JOHNSON JOHN, JUDGE.

YKB

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