Kerala High Court
Ajith Kumar @ Aji vs State Represented By The on 21 January, 2011
Author: K.M.Joseph
Bench: K.M.Joseph, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2296 of 2006()
1. AJITH KUMAR @ AJI,
... Petitioner
Vs
1. STATE REPRESENTED BY THE
... Respondent
For Petitioner :SMT.AYSHA YOUSEFF
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :21/01/2011
O R D E R
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
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CRL.APPEAL No.2296 of 2006-D
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Dated, this the 21st January, 2011
J U D G M E N T
K.M.Joseph, J.
Appellant stands convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/-. He further stands convicted under Section 449 and Section 382 of the IPC and sentenced to further imprisonment for five years each thereunder besides fine of Rs.5,000/- on each count, the substantial sentences to run concurrently.
2. The case alleged by the prosecution briefly is as follows:
Deceased Elamma was residing alone in a four cents colony. On 18th August, 2003 she was found dead. Upon her brother (Pw1) being informed and confirming her death he lodged complaint. The body was in a putrefied stage and after postmortem it was confirmed that she was beaten to death. Investigation revealed that the appellant who was staying in the locality had on 13.8.2003 trespassed into the house of the deceased hit her on the head with a wooden log and after CRL.APPEAL No.2296 of 2006 -2- she was killed, robbed her of gold chain.
3. Before the Court of Sessions to which it was made over the prosecution examined Pws. 1 to 15. Exts.P1 to P22 were marked. Material Objects were identified and marked as MOs.1 to 13. The appellant did not adduce any defence evidence.
4. Learned counsel for the appellant would urge before us the following contentions. There is no reliable evidence against the appellant for the Court to enter the verdict of guilty against the appellant. The Court below has itself disbelieved the prosecution version about the recovery of wooden log with which it was alleged that the appellant caused the fatal injury. The only other item of evidence which is used against the appellant is the recovery of gold necklace. He would point out various circumstances in an attempt to contend that the recovery is suspect and further that even if it is found that the recovery is found acceptable there is no reliable evidence to establish that the chain was the one which belonged to deceased Elamma. He would contend that when the evidence against the appellant is only recovery in a case charged under Section 302 in particular, the Court would insist on the higher standard of proof and it would be entirely unwise and illegal to base the conviction on a CRL.APPEAL No.2296 of 2006 -3- suspect recovery. He would contend that Pw1 who is the brother of the deceased has in Ext.P1 FI Statement given on 18.8.2003 stated that he saw the deceased last on 15.8.2003. He would submit that this completely destroys the edifice of the prosecution case that the deceased was done away with on 13.8.2003. He submits that in order to square the death with the date on which MO-1 necklace was allegedly pawned, the prosecution has made an attempt to make the date of death as 13.8.2003. There is no evidence to show that the incident occurred on 13.8.2003. He would contend that the medical evidence adduced in the case would belie the prosecution case that the death took place on 13.8.2003. He would submit that the medical evidence would show that the death was caused between 72 to 120 hours before the postmortem. The postmortem was done on 19.8.2003. If that be so, he would submit that it is inconceivable that the death took place on 13.8.2003. He further contended that the medical evidence is to the effect that there will be liquefaction of the brain up to a maximum of 120 hours. He would contend therefore that it is not possible to accept the case of the prosecution that the death took place on 13.8.2003. In regard to the evidence adduced to prove that the deceased had a gold chain which was the chain MO-1 CRL.APPEAL No.2296 of 2006 -4- which was recovered on the strength of the alleged statement considered admissible under Section 27 of the Indian Evidence Act by the trial Court it is contended as follows:
PW1 is an aged man. It is difficult to believe that he could identify MO-1 as the necklace worn by his sister. Pw3, a neighbor of the deceased and a lady witness who has also purported to identify the ornament. It is contended by the learned counsel for the appellant Sri.V.K.Sidhik, that her evidence cannot be relied on as what she has said is not that MO-1 was the necklace worn by the deceased, but, she has said that it was like the ornament which was worn by the deceased. Furthermore, he would point out the following contradiction:
5. According to Pw1 and Pw5, the niece of the deceased who allegedly accompanied the deceased when she purchased the gold ornament, the purchase was made one year prior to the death and about one year ago respectively. On the other hand, Pw3 would state that she has seen Elamma wearing it and she showed it to her at the time of purchase and that she has said that she did not remember when. Then she said that it was two to three months before the death. The evidence of PW5, the niece of the deceased cannot be CRL.APPEAL No.2296 of 2006 -5- accepted for the following reasons it is contended. PW5 has stated that she has not touched MO-1 ornament with her hands. It is contended that the deceased was an elderly woman. She was deaf and not in a physically good condition. If actually PW5 had accompanied the deceased, she would have certainly played an active role having regard to the fact that she was a woman and of a younger age and she would have examined the gold ornament by taking it into her hands. It is contended that this would have been the normal behavior expected of a woman of her age if she had actually accompanied the deceased to purchase the ornament. It is also contended that when it was purchased it also had a golden cross. It is pointed out that the gold chain (MO-1) recovered pursuant to the alleged statement made by the appellant did not have a golden cross.
The cross is stated as having the dimension of 3 cm x 2 cm and is of gold colour. It is recovered on 20.8.2003 at the time when the scene mahazar was prepared, underneath two mats in the house of the deceased. It is pointed out that Pw1 has in his deposition stated that he saw the appellant in the police station on 18.8.2003 though the arrest as such is recorded only on 26.8.2003. The appellant was seen by Pw1 two to three days from 18.8.2003 also, it is pointed out. In CRL.APPEAL No.2296 of 2006 -6- regard to the recovery of the cross under the scene mahazar on 20.8.2003 it is contended that the evidence of Pw1 and Pw2 is that there is welding in the chain. It is contended that the necklace which is produced as MO-1 as having belonged to the deceased and which is recovered on the statement of the appellant under Section 27 of the Evidence Act which is apparently the very sheet-anchor of the prosecution case cannot be the ornament which was actually owned and worn by deceased Elamma. It is pointed out that the cross alone was allegedly recovered under the two mats. There is a possibility of the actual chain which was worn by Elamma having been given to somebody else. It is contended that the dimension of the cross would show that it was a big cross and the prosecution case is improbable. It is further pointed out that MO-1 is stated to be 'U' shape and there are two hooks. It is further contended that the case of the prosecution that the appellant had pledged MO-5 ring which belonged to Pw6 and the same was redeemed upon pledging MO-1 gold necklace cannot be believed. It is submitted that the appellant was deriving his livelihood as a coconut climber and it is incredible to suggest that he could not raise Rs.300/- for redeeming the gold ring which is alleged to have been pawned with Pw8. (It has come out in CRL.APPEAL No.2296 of 2006 -7- evidence that it was redeemed upon receipt of Rs.300/-). It is further contended that MO-2, two gold ear rings alleged to have been worn by the deceased Elamma would have been stolen if the prosecution case against the appellant is to be believed. Learned counsel for the appellant further submits that the weight of MO-1 as weighed by PW9 gold smith is 7.900 grams. But, it is pointed out that in the records of PW8 it is shown only as 7.750 grams. It is contended that the explanation of Pw8 by saying that usually it is shown in that fashion cannot be believed as in regard to MO-5 ring the weight was found to be 2.16 grams and it is the very same weight which is entered in his records. All these, he would submit is an attempt to point out that the recovery of the chain cannot be believed and connected with the chain allegedly worn by the deceased. Learned counsel for the appellant would submit that MO-2 ear rings was having a weight of 4 grams. (Learned counsel no doubt does not dispute the fact that there is no evidence to show the weight of the ornament). He would further submit that it is difficult to believe that the appellant would commit murder of Elamma for the purpose of committing theft. He would submit that actually Pw1 who is the brother of the deceased and Pw5 who is the niece of the deceased were cornered into giving CRL.APPEAL No.2296 of 2006 -8- deposition as given as they would have been threatened by the police to the effect that they would be dealt with otherwise.
6. He would further submit that without prejudice to the contention that the appellant is innocent and is entitled to acquittal, he would contend as follows:
There may have been scuffle and the deceased may have fallen to the bed and suffered injury leading to her death. It is contended that the medical evidence supports this version. It is further contended that Section 449 of IPC is inapplicable. It is submitted that there are wooden logs found in the premises where Elamma resided as is evident from the scene mahzar and the wooden log with which the injury may have been caused by using the wooden logs found inside the house that is the appellant would not have gone at any rate with the wooden log and there is no premeditation. There is only one injury and conviction under Section 302 IPC was not warranted at any rate. Learned Public Prosecutor supported the judgment.
7. PW1 is the brother of the deceased. He has stated, inter alia, as follows:
The deceased was not healthy and was undergoing treatment. CRL.APPEAL No.2296 of 2006 -9- She was residing alone. He saw her last on 11.8.2003 in the evening at 6 PM. (He deposes that the version given to the police that he saw her last on 15.8.2003, was a mistake). He would say that he had corrected it. The deceased used to wear a gold chain. That was missing. There is a cross on the gold chain. He identified MO1 gold chain. He deposed that another sister and a niece purchased MO1 one year back and gave it to the deceased. He was shown the gold chain in the police station. At that time, the accused was present. He has seen the accused near the house of the deceased earlier. In Cross-exmination he states that the body was decomposed. He denies the suggestion that on account of the foul smell, he did not go in to see the deceased. He denies having given statement about the death having taken place between 15.8.2003 and 18.8.2003. He has not touched the dead body. He went along for the post mortem. He noticed the ear ring on the dead body. Two-three days after, the cross was found CRL.APPEAL No.2296 of 2006 -10- under the mate. It is a small cross. He saw it being taken. He is not able to say how long or wide the cross is. He is unable to recollect the date on which the cross was recovered. When the body was taken for post mortem, he did not see the cross. On that day, in the afternoon, the cross was found. There was no distinctive marks in the cross worn by the deceased. In answer to the question whether the cross was definitely that which was worn by the deceased, he says, he cannot say. Then he says that if he sees the cross, he can say. The sister who purchased the gold chain told that it weighed one sovereign and that the gold chain was of "Dhruvam" size. These were mentioned one year before the death. He states that in the gold chain, there was one welding done. He says that he has not mentioned it to the Police Officer. He says that it is he who got the broken gold chain welded. This also, he has not mentioned to the Police Officer. He denies the suggestion that MO1 was not that worn by the deceased. He saw CRL.APPEAL No.2296 of 2006 -11- the accused on the 18th and on 2-3 days thereafter. It must have been on the 20th or 21st. The accused sets up a case that the deceased did not have any gold chain, which is denied by PW1. He has not gone to purchase the gold chain.
8. PW2 is a neighbour. He has deposed that he was present at the time of the inquest and is a signatory.
9. PW3 is a neighbour of the deceased. She has stated that she saw the deceased last on 13.8.2003. She came back after visiting her mother's house on 17.8.2003. The deceased used to go for domestic work. She was short of hearing. The deceased used to wear gold chain and ear ring. She saw the deceased from a distance and she did not notice whether the gold chain was there on the dead body. She states that she is able to identify the gold chain and ear ring worn by the deceased. She was shown MO1 gold chain and she states that the deceased used to wear gold chain like MO1. She was shown MO2 ear ring and she states that the CRL.APPEAL No.2296 of 2006 -12- deceased was worn ear ring like MO2. She has seen gold chain, like MO1 worn by Bindu. She says that the accused is a person from that area. She has not gone inside the house of the deceased. She would say that the deceased had shown the gold chain to her 2-3 months prior to her death. She says that the gold chain weighed a sovereign from what the deceased told her.
10. PW4 is a resident of the colony. He is a witness to the recovery of MO3 wooden log. The recovery was made after one week of the discovery of the death. He has witnessed the accused being brought in a police jeep and the accused taking out MO3 which was bloodstained. He says that some black and white gray hair were found in MO3. He has signed in the mahazar, marked as Ext.P3. He identified MO3 as the wooden log recovered through the accused.
11. PW5 is the niece of the deceased. She has testified that she had accompanied the deceased with another aunt of her to CRL.APPEAL No.2296 of 2006 -13- Shanker Jewellery at Alwaye to purchase MO1 gold chain. She says that the deceased used to wear gold chain and ear ring regularly. The deceased had ear ring earlier. The gold chain was purchased about a year prior to the death. Deceased did not have the capacity to go and buy the ornament by herself. She was short of hearing and her speech was incoherent and she had a limp. Along with the chain, a locket was also purchased. The speech of the deceased could be understood. The cross is the locket. The chain was about a sovereign and was of "Dhruvam" model. She is able to identify the ornaments worn by her aunt. She identifies the cross as the cross worn by the deceased. She also identifies MO1 as the chain worn by the deceased. She also identifies the ear rings. She was called to the police station and she identified the gold chain in the police station. At that time, the accused was present. They have purchased 22 carat gold which is the pure gold. She has seen the gold chain being worn by the deceased and CRL.APPEAL No.2296 of 2006 -14- not held in her hands. So also, she speaks about the cross. The chain was welded. It was done by the uncle. The fact of breaking of the gold chain and the welding has been informed by the deceased herself. There is no particular mark in the cross. There are many crosses like the cross. She came to know that the cross was obtained from the house of the deceased as told by PW1. She knows about the other fashion of the gold chain. Deceased liked the gold chain having "Dhruvam" fashion. She is not able to say whether the gold chain was there on the body of the deceased. In Re-examination, she would say that at the time of purchase of the gold chain and cross, she had taken them and examined them.
12. PW6 is a resident of the colony in question. She says that she knows the accused. She says that the accused used to come to her house. He used to come for plucking coconuts. She states that the accused borrowed her gold ring for pledging it, when he was in need of money. The ring was redeemed and given CRL.APPEAL No.2296 of 2006 -15- back. She deposes that she had given the ring 3-4 times for pledging. The ring was given back before the death of Elamma. She is not able to remember exactly when it was so done. She has given statement before the Magistrate and admits her signature in the statement. The gold ring is marked as MO5. She says that the accused is a labourer and it is from the income from his vocation that the accused has redeemed the gold ring and given it to her.
13. PW7 is the brother-in-law of the deceased. He is a signatory to Ext.P5 scene mahazar. MO6 is the mat. MO7 is another mat. He has stated about the search for the gold chain and it was not recovered. He identified MO1 as the gold chain belonging to the deceased and he speaks about the recovery of MO1 chain and subscribing to Ext.P6 seizure mahazar as a witness.
14. PW8 is a money lender. He is doing the business of giving loan on the strength of the pledging of gold ornaments. He CRL.APPEAL No.2296 of 2006 -16- states that the gold chain in question was pledged with him on 14.8.2003 and the pledged chain weighed 7 > grams. The accused was given a loan of Rs.2,250/=. He proves the entry in Ext.P7 ledger. He identified the accused as the person who brought the chain for pledging. He states that the accused has come to his Concern earlier also for pledging. He states that the accused gave a gold ring for pledging earlier. He pledged the ring on 30.7.2003. The ring weighed 1.2 gram. The accused was given loan of Rs.300/= on that occasion. He would say that the ring was redeemed on 14.8.2003. The accused came at about 11 AM for redeeming the ring. When the chain was pledged, a loan of Rs.2,250/= was given after adjusting Rs.300/= with interest due under the pledging of the ring. He has spoken about the paper work done by the accused for redeeming the gold ring. He has spoken about the paper work done in connection with the pledging of the gold chain and the signature of the accused person being CRL.APPEAL No.2296 of 2006 -17- appended. He identifies the MO1 chain. There was a gap in the hook of the chain and he had asked about it to the accused and that is how he identifies MO1. He also identified MO5 gold ring as the ring which was redeemed by the accused. He also says that MO5 ring had been pledged two or three times earlier with him. He would say that in Ext.P10 relating to the pledging of the chain, he had begun to write as 12.8.03, but it is corrected as 14.8.03. It is only a mistake, he would say. He admits that there was over- writing. He would say that the mistakes have been corrected. He also admits that in Ext.P9 which related to the pledging of the gold ring, "00" was corrected as "07". He denies the suggestion of difference between the signatures of the accused and asserts that the signatures are that of the accused. He denies the suggestion that the hook was straightened by him and the Police Officers. He states that the chain which was pledged had a weight of 7 > grams. He is not able to remember whether the chain which was CRL.APPEAL No.2296 of 2006 -18- given to the police had the weight of 7.900 grams. He says that he had weighed the pledged chain and in the record it was shown as 7 > grams. He says that because it is a pledged chain, the quantity is shown at a reduced basis. The police came and weighed the chain. He denies the suggestion that the mahazar was signed in the police station. He denies the suggestion that the accused has never pledged ornaments in his shop. In the Re-examination, PW8 would say that in respect of the pledge of the gold chain, the date 22.9.03 was written by a mistake in regard to this transaction.
15. PW9 is a goldsmith. He would say that he was asked by the Circle Inspector of Police to go and he accordingly went with the weighing balance and touchstone and the accused was also present in the police station. They went to the four cent colony. He would then say that they went to among other places, the shop where he weighed the gold chain and it weighed about 7.900 grams. It was found to be of about twenty carat gold. He CRL.APPEAL No.2296 of 2006 -19- identified MO1 as the chain which he had weighed. He also weighed the gold ring brought from the house of one Pathmini to whose house they went as per direction given by the accused. He speaks about the weighing the gold ring and otherwise checked the ring for the gold content. There will be many chains like MO1. There was a welding in MO1 chain. He would say that in all the joints, there are welding.
16. PW10 is the Doctor who conducted the post mortem. He noticed the following anti-mortem injuries:
"Contusion of scalp over an area 8 x 7 cm. On the right frontoparietal region (seen on dissection). The orbital part of the frontal bone showed comminuted fraction 5 x 4 cm with two fissured fractures, one of them extending to the right temporal bone and the other towards the parietal bone and terminated in the coronal scuttles. Duramater was torn underneath the comminuted fracture. Brain was liquefied and stained with blood."
CRL.APPEAL No.2296 of 2006 -20-
Under the heading "Opinion as to cause of death" he states as follows:
"Death was due to head injury sustained. I have issued this certificate which bears my signature and seal. Ext.P12 marked. The post mortem interval would be between 72 to 120 hours. The decomposition changes in the brain starts after 72 hours and it could be complete by liquified after 120 hours. The injury could have been caused by a weapon like MO.3. This injury is sufficient to cause death in the ordinary course of nature."
In cross-examination, he would say that he did not note about how much time would be required for the injury to cause death. He states that he has noted all the injuries. It includes the centrikupe injury. He states that he has not noted any abrasions corresponding to the fractures as the body was in a decomposed stage. It is CRL.APPEAL No.2296 of 2006 -21- further stated in the Cross-Examination as follows:
"Can not the injury be caused due to a fall on the frame of a cot or it can be caused due to a fall from considerable height or due to application of blunts force."
17. PW12 is the Assistant Sub Inspector of Police who registered the FIR. PW13 is the Investigating Officer. In the Cross-examination he would say, inter alia, as follows:
It was noted that there was blood on MO3 wooden stick and he further says that blood could not be detected in the Report of chemical analysis and there was no bloodstain. There was no Statement by any witness that the deceased was assaulted twice on the head. The mahazar was written on 20.8. 2003 at 11/30 AM only. There were no remnants from the accused on the matter. He denies that the mats were made up for the purpose of the case. He denies the allegation that the hook of the chain was straightened for the purpose of the case. The fingerprint of the accused was CRL.APPEAL No.2296 of 2006 -22- taken and sent for analysis and the result obtained. In connection with this case, no fingerprint was obtained. He denies the suggestion that the accused was getting Rs.200 to 250/= per day from his vocation as labourer. The accused was arrested on 26.8.2003. He was not in police custody prior to that. He denies the allegation that on 20th or 21st, the accused was shown to some of th witnesses. When PW8 was questioned, he has not given statement that the weight of the pledged ornament will be shown at a lesser quantum. He denies the suggestion that the cross was obtained when the mats were shaken. He denies the suggestion that when the mat was kept for drying, on noticing a shining matter, the cross was discovered. He denies the suggestion that there was nobody other than the police and the accused in the jeep.
He states that PW5 has not stated that there was a welding and the chain was identified on that basis.
18. In Sankara Narayanan v. State of Kerala (2006 (3) KLT CRL.APPEAL No.2296 of 2006 -23-
429), it is, inter alia, held that "unless the authorship of concealment is established, the recovery in pursuance of the information stated to have been furnished by the accused will not fall under "discovery" as envisaged under Section 27 of the Indian Evidence Act." It is also held that "one of the primary requisites to make a recovery under Section 27 of the Evidence Act is that the authorship of concealment of articles must be proved." In Ajayan v. State of Kerala (2011 (1) KLT 8 (FB)), the Court held as follows:
"Authorship of concealment is not sine qua non to make information received from a person accused of an offence while in the custody of the Police Officer admissible under S.27 of the Act and that if the information as deposed to by the Investigating Officer is otherwise admissible in evidence, it would not become inadmissible solely for the reason that the information deposed by the Police Officer does not reveal authorship of concealment. In other words, the CRL.APPEAL No.2296 of 2006 -24- view taken in the decisions of this Court that authorship of concealment is sine qua non for admissibility of the statement of the accused under S.27 of the Act is not correct in law."
It was thereafter held as follows:
"For the application of S.27, it makes no difference whether information given is that the article is concealed at a particular place or that it is given to a particular person. S. 27 does not say that for admissibility of the information, authorship of concealment is essential. The expression "distinctly"
only means "directly", "indubitably", "strictly", "unmistakably". That expression is used in S. 27 to limit and define the scope of information admissible in evidence."
This is a case of recovery effected of gold ornament from a shop where it is shown as pledged by the appellant. In State of Kerala v. Hariharan (2006 (1) KLT 173), a Division Bench of this Court referred to the Apex Court decisions where it was held as follows: CRL.APPEAL No.2296 of 2006 -25-
"In order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave cannot take the place of proof."
In Thomas v. State of Kerala (1991 (2) KLT 274), a Division Bench of this court was dealing with a case where the accused was unarmed and he happened to see the deceased in a casual way. There was altercation and it led to fisting by the appellant with his hand. The Court took the view that his intention could have been to give some thrashes to the deceased and the case would fall only CRL.APPEAL No.2296 of 2006 -26- under Section 323 of the IPC. The Court held as follows:
"To constitute the offence under S.302 IPC, the act should fall in one of the four clauses in S.300, namely, (1) if the act is done with the intention of causing death or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause death or (3) with the intention to cause bodily injury and the bodily injury intended is sufficient in the ordinarh course of nature to cause death, or (4) if the person doing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. It cannot be said that the act alleged would fall in any of the above clauses so as to bring the offence within the ambit of S.300 I.P.C. In order to constitute an offence of culpable homicide, a person has to cause death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. Culpable homicide is the genus of which murder is the species. S. 304 CRL.APPEAL No.2296 of 2006 -27- I.P.C. will apply to the following classes of cases: (i) When the case falls under one or the other of the clauses of S.300, but it is covered by one of the exceptions to that section, (ii) when the injury caused is not of the higher degree or likelihood which is covered by the expression "sufficient in the ordinary course of nature to cause death" but is of a lower degree of likelihood which is generally spoken of as an injury "likely to cause death" and the case does not fall under Clause (2) of S. 300 I.P.C., (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. The workd `likely' means probably and it is distinguished from mere "possibily". When chance of happening are even or greater than its not happening, we may say that the thing will "probably happen".
But, there is no evidence or basis for any such altercation. In Muthu v. State of Tamil Nadu (2007 (4) KLT 982 SC), the Apex Court was dealing with a case under Explanation (1) of Section CRL.APPEAL No.2296 of 2006 -28- 300 of the I.P.C. and the Court proceeded to hold that the accused was deprived of his power of self-control by reason of the fact of throwing waste and rubbish into his house.
19. The evidence would clearly establish that the appellant was in need of money. It is established clearly by the evidence of PW6 as also PW8. PW6 has categorically stated that the accused was in need of money and used to take MO5 gold ring for pledging for borrowing money. PW8, the money lender with whom MO5 gold ring was pledged, has stated that he has pledged the gold ring on earlier occasions also to raise money. The deceased was staying alone. She was not a healthy woman. On the contrary, she was partially deaf and not in a physically good condition. The accused was living in the nearby vicinity.
20. We also do not intend to lay any store by the alleged statement of the accused leading to MO3 recovery. But, at the same time, we do not think that the appellant has established that CRL.APPEAL No.2296 of 2006 -29- we should disbelieve the statement of the accused leading to the recovery of MO1.
21. As regards the discrepancy in the statement of PW1 in Ext.P1 FI Statement given on 18.8.2003 that he had last seen the deceased on 15.8.2003 and the argument of the appellant that on finding that the pledging of MO1 gold chain was made on 14.8.2003, a different version is sought to be made up, we do not think that it will advance the appellant's case. PW1 has deposed that it was only by a mistake in giving the date that it was so stated. The further argument of the appellant is that the post mortem was done on 19.8.2003 and the prosecution case is that the death took place on 13.8.2003. Evidence of PW10 would show that the post mortem interval was between 72 to 120 hours. If that is so, the prosecution case that the death took place on 13.8.2003 could not be believed and it is further contended that the medical evidence would show that there will be liquefaction of the brain CRL.APPEAL No.2296 of 2006 -30- upto a maximum of 120 hours. PW10, of course, the Doctor has stated that the post mortem injury would be between 72 to 120 hours. As far as liquefaction is concerned, he has stated that it could be complete after 120 hours. In the Chief Examination he has stated that the brain was liquefied. But, we do not see any inconsistency about the brain being liquefied and the statement that the liquefaction will be complete after 120 hours and the prosecution case that the death took place on 13.8.2003.
22. As far as the post mortem interval is concerned, no doubt, the opinion of the Doctor may be overshot by the prosecution case by a few hours. But, we must consider whether there are other materials which taken together would establish the prosecution case.
23. Then, we come to the important circumstances appearing against the appellant, i.e. the statement given by him to the Police Officer within the meaning of Section 27 of the Evidence Act, CRL.APPEAL No.2296 of 2006 -31- resulting in the recovery of MO1 gold chain. If MO1 gold chain is accepted as the chain which was worn by the deceased, undoubtedly, it will go a long way in proving the guilt of the appellant as he was no explanation for the possession of the gold chain. PW1 had spoken about the deceased wearing the gold chain and that it was missing. He also identified MO1 gold chain. He has deposed that another sister and his niece (examined as PW5) had purchased the gold chain. He has denied the suggestion that the deceased did not have a gold chain. He has also given evidence that it was he who got the broken gold chain of the deceased welded. PW3 who is the neighbour of the deceased has also stated that she has seen the deceased wearing a gold chain. Of course, she had stated that she saw the deceased from a distance and she did not notice whether the gold chain was there on the body of the deceased. No doubt, her deposition is to the effect that when she was shown MO1 gold chain, the deceased CRL.APPEAL No.2296 of 2006 -32- used to wear the gold chain like MO1 (learned counsel places much reliance on this version). She has, of course, also stated that the deceased had shown the gold chain to her two to three months prior to her death. It was stated to be around the time when it was purchased. PW1 would say that the gold chain was purchased about a year prior to the death. PW5 is the niece. She had identified MO1 gold chain as the chain which was worn by the deceased. She has further deposed that she had accompanied the deceased with another Aunt to purchase MO1 gold chain. She has stated that the deceased used to wear gold chain and ear ring regularly. The chain was purchased about a year prior to the death. She has also stated that a locket was also purchased. The chain was of "dhruvam" model and she was able to identify the ornaments including the cross. The chain was welded which was done by the Uncle. She has stated that the breaking of the gold chain and the welding was informed to her by the deceased CRL.APPEAL No.2296 of 2006 -33- herself. The deceased liked the gold chain having "dhruvam" fashion. In Re-examination, she has stated that at the time of purchase of the gold chain and cross, she has taken them and examined them. Therefore, the contention of the learned counsel for the appellant that the chain was not held in her hands by PW5 and hence her evidence does not inspire confidence, cannot be accepted.
24. In the state of the evidence, we are inclined to accept the prosecution version that the deceased did wear the gold chain and the gold chain was M.O.1 identified by PW5, in particular and about which PW1 as also PW7 (brother-in-law of deceased) has also spoken about. It may be true that PW9, the gold smith, has stated that there are weldings seen. We notice in this regard the following reasoning of the learned Sessions Judge:
"He is not asked whether the chain was broken and then welded at any point. The learned counsel for the defence says that since PW9 has testified that the CRL.APPEAL No.2296 of 2006 -34- entire chain is full of welding on each joint, the welding purportedly identified by PW1 and PW5 has no importance at all. The welding of a chain during the process of its manufacture and a subsequent welding of it consequent to the chain breaking has some difference and PW1 and PW5 have identified that particular portion of the chain. Moreover, PW5 is the person who had gone to purchase the chain for her Aunt."
But, in view of the evidence of PW5, who has accompanied the deceased along with another Aunt of hers to purchase the gold chain and her natural familiarity which she professes, the gold chain being worn by her Aunt, the deceased, we do not think that the appellant can contend that MO1 chain was not the chain which was worn by the deceased.
25. PW8 is a money lender. His evidence would establish that the appellant had pawned MO5 gold ring belonging to PW6, not once, but on a number of times. This version of PW8 is CRL.APPEAL No.2296 of 2006 -35- corroborated by the evidence of PW6 herself to whom MO5 gold ring belonged. The evidence would establish also that the gold ring was pledged by the appellant on earlier occasions, prior in point of time, to 14.8.2003. It was on 14.8.2003 that the prosecution alleges that the appellant pledged MO1 gold chain with PW8. Therefore, PW8 was familiar with the appellant as on 14.8.2003, as he had transacted business with him on a few occasions earlier to 14.8.2003. This lends assurance to the identification of the appellant by PW8 as the person who pledged MO1 gold chain. The prosecution has also produced the Ledgers. We see no reason why PW8 would falsely implicate the appellant. As to the discrepancy in the weight of MO1 being recorded as 7.750 grams when it was weighed by PW9 gold smith at 7.900 grams and the argument that, therefore, the chain is different, we are not inclined to accept the argument. There is a version given by PW8 also that the weight will be shown at a lesser quantum. CRL.APPEAL No.2296 of 2006 -36- The difference is .150 grams. We have also found that the evidence of PW5, in particular would establish that MO1 gold chain is the gold chain worn by the deceased. No doubt, as far as MO5 ring is concerned, the weight was shown as 2.16 grams as shown in the records.
26. As far as the cross is concerned, PW5 has spoken about the purchase of the cross along with MO1 chain. The recovery of the cross is spoken to by the Police Officer from under the mats. The appellant was not a Christian. If he took the gold chain with the cross, we cannot discount the possibility that he may have aroused the suspicion of PW8. Further, we cannot overlook the argument of the learned Public Prosecutor that the cross may have been separated from the chain and it may have been kept by the deceased herself under the mat. The fact that the ear rings were found intact on the body of the deceased cannot shake us in our belief about the guilt of the appellant. It is quite possible that the CRL.APPEAL No.2296 of 2006 -37- appellant did not want to get caught by delaying his exit from the house after having come by MO1 chain. He got Rs.2,250/= as loan on the strength of the pledge of MO1 chain. He has redeemed MO5 gold ring.
27. We are also unable to accept the contention of the learned counsel for the appellant that it is incredible to suggest that the appellant who was deriving his livelihood as a coconut climber, could not have raised Rs.300/= for redeeming the gold ring. Apparently, he had to take a loan of Rs.300/=. This fact sufficiently shows the state of his financial condition. Therefore, we are of the view that the court below was justified in finding that it was the appellant who caused the death of the deceased.
28. Learned counsel for the appellant would contend that there may have been a scuffle and the deceased may have fallen to the bed and suffered injury leading to the death and purports to draw support from the medical evidence. We are unable to accept CRL.APPEAL No.2296 of 2006 -38- the said contention. This hypothesis does not appear to have any basis at all with reference to the materials on record.
29. Then, without prejudice to his contentions the appellant has contended that there was only one injury and this case does not call for invoking Section 302 IPC. In this regard, we notice that PW10 Surgeon has stated that the injury in the ordinary course was sufficient to cause death. Death followed soon after the injury. In such circumstances, we are not inclined to vary the conviction and sentence under Section 302 IPC.
30. Section 449 of the IPC reads as follows:
"449. House-trespass in order to commit offence punishable with death.-
"Whoever commits house-trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine."
CRL.APPEAL No.2296 of 2006 -39-
Therefore, the house trespass must be committed for the purpose of the committing of any offence punishable with death (See the decision in Matiullah Sheikh and Others v. State of West Bengal (AIR 1965 SC
132). In this case, we are not convinced that there is evidence to show that he committed house trespass for the purpose of committing any offence punishable with death. On the basis of the evidence on record, we would, however, think that he has instead committed offence punishable under Section 451. Section 451 reads as follows:
"451. House-trespass in order to commit offence punishable with imprisonment.- Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years."
31. In such circumstances, we vacate the conviction and sentence of the appellant under Section 449 of the IPC. Instead, we convict him under Section 451 of the IPC and in the circumstances of the case, we sentence him to simple imprisonment for two years. We CRL.APPEAL No.2296 of 2006 -40- confirm the conviction under Section 382 IPC, as we find that the Additional Sessions Judge was fully justified in the said conviction. We confirm the sentence imposed on him under Section 382 of the IPC. We direct that the substantial sentence under Section 451 IPC will also run concurrently.
Subject to the above modification, the Appeal will stand dismissed and the conviction of the appellant as also the sentence under Sections 302 and 382 IPC will stand confirmed.
Sd/= (K.M.JOSEPH) JUDGE.
Sd/= (M.L.JOSEPH FRANCIS) JUDGE.
MS/kbk.
//True Copy// PS to Judge CRL.APPEAL No.2296 of 2006 -41-