Karnataka High Court
The State Of Karnataka vs Siju Kuriyan on 20 March, 2020
Author: S.N. Satyanarayana
Bench: S.N. Satyanarayana
R
IN THE HIGH COURT OF KARNATAKA
BENGALURU BENCH
(THROUGH VIDEO CONFERENCE AT DHARWAD BENCH)
DATED THIS THE 20TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR.JUSTICE S.N. SATYANARAYANA
AND
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.335/2014
BETWEEN:
THE STATE OF KARNATAKA,
BY RURAL POLICE STATION,
SAGAR-577401.
...APPELLANT
(BY SRI. S.RACHAIAH, HCGP)
AND:
SIJU KURIAN S/O. KURIYAN,
26 YEARS, ALAROTH HOUSE,
MANNARKAD TALUK,
PALAKAD DISTRICT,
KERALA STATE-678582
...RESPONDENT
(BY SRI KARTHIK YADAV U, ADVOCATE AS AMICUS
CURIAE.)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) Cr.P.C. BY THE STATE P.P. FOR THE STATE
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED
TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 08.08.2013 PASSED
BY THE P.O., FTC, SAGARA IN S.C.NO.96/12-ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIOPNS 302, 201, 404 AND 419
OF IPC.
RESERVED FOR JUDGMENT ON : 26.02.2020
JUDGMENT PRONOUNCED ON : 20.03.2020
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
H.P. SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the Judgment and order of acquittal dated 08.08.2013 passed in S.C.No.96/2012 on the file of Fast Track Court, Sagar for the offence punishable under Sections 302, 201, 490 and 404 of IPC.
2. The factual matrix of the case is that, on 02.12.2011 at about 6:00 to 6:30 in the morning, in the land bearing survey No.48/1 of Kerodi village, Sagar Taluk, the accused who was working as coolie in the 3 Garden House of father of the complainant, with an ulterior motive to murder the father of the complainant and to sell the agricultural equipments and the property to some other persons and to earn money illegally the accused with the iron rod hit on his head, as a result the victim had sustained injuries and succumbed to the injuries. The accused in order to avoid the punishment and to escape from the clutches of law buried the dead body on the western side in the garden land of the victim. The son of the victim at the first instance gave the complaint for missing of his father and when the accused was apprehended the body was recovered at his instance and case was registered and further investigated the matter and recoveries were also made and after completion of the investigation the police have filed the charge sheet for the above offences.
3. The accused did not plead guilty before the Trial Court and he claims the Trial and hence 4 prosecution has examined PWs-1 to 25 to prove its case and also got marked the documents Ex.P1 to Ex.P.50 and produced MOs.1 to 47. The Trial Court after considering the evidence of the prosecution examined the accused under Section 313 of Cr.P.C. and thereafter the accused did not choose to lead any defense evidence. The Trial Judge after considering both oral and documentary evidence comes to the conclusion that the prosecution fails to prove its case beyond reasonable doubt and passed an order of acquittal and hence, the present appeal is filed.
4. The State in this appeal would contend that, the impugned order of acquittal recorded by the Trial Judge is contrary to law and the reasons assigned while passing the Judgment of acquittal reached at wrong conclusion which has resulted substantial miscarriage of justice. The appreciation of evidence is not in proper perspective. The Trial Judge also has not raised proper 5 probabilities and inferences on the basis of the evidence available on record.
5. The Trial Judge has failed to appreciate the evidence of PW-1 to 4 and also the evidence of 5 to 10 and PWs.11 to 16 and other official witnesses who have been examined as PWs.17 to 19, 21, 24 and 25 and hence it requires the interference of this Court.
6. The learned counsel appearing for the state in his argument he vehemently contended that the accused was working with the deceased and the dead body was unearthed at the instance of the accused. The witnesses who have been examined before the Trial Court have supported the case of the prosecution that agricultural equipments of the deceased were sold to them. The recoveries are proved by examining the witnesses and nothing elicited from the mouth of those witnesses to disbelieve the case of the prosecution. 6
7. The doctor who has been examined as PW- 22 has categorically deposed that the injuries sustained by the victim are anti-mortem in nature and he has sustained injuries to his brain and hence he was succumbed to the injuries. The prosecution has made out that cause of death was due to injuries to brain and it is a homicidal one. The accused was staying along with the deceased and Section 106 of Evidence Act attracts since death was taken place in the house wherein the accused was staying with the victim. The accused has not given any explanation in his 313 statement which was recorded by the Trial Court. The Trial Court in spite of all this materials available before the Court failed to appreciate the same in a proper perspective and hence, it requires interference of this Court.
8. Per contra, the counsel appearing for the defense, i.e. amicus-curie in his arguments he 7 vehemently contend that, the evidence of PW-4 who is the son of the victim in the complaint and also in the evidence he categorically stated that father was not having cordiality with the family members. The incident was taken place according to the prosecution on 02.12.2011 and missing complaint was given on 20.01.2012 almost after one and half month. The body was exhumed after 50 days i.e. on 21.01.2012 and complaint was given in terms of Ex.P-36 and this accused was arrested on the same day at 10:30 a.m.. It is the case of the prosecution that, body was exhumed at the instance of the accused, but material reveals that before accused leading the Investigating Officer and other officers already people were there near the place where the body was buried and hence, the theory of body was recovered at the instance of the accused cannot be accepted. The PW-1 in his evidence who speaks about Ex.P-1 to 12 and MOs.1 to 41 is nothing but a stock witness and according to him voluntary 8 statement was given in English and there was no any interpreter. The body where it was exhumed, the same belongs to the farm house of the victim and its total measurement is seven acres. According to the prosecution MOs.12 to 21 were recovered after the exhumation of the body. The PW-2 who is the seizure witness his evidence is contrary to the evidence of PW-1 and he has not spoken anything about the blood stains. The PW-3 panch witness evidence is not acceptable and though PW-4 has been examined the prosecution has not proved the employment. The FSL report which is marked as Ex.P-42 nothing is forthcoming regarding stains on the weapon and hence, the evidence of PW-4 cannot be believed. While recording the voluntary statement no assistance of interpreter was taken. It is the case of the prosecution that, all MOs are agricultural equipments and not recovered at the instance of the accused. It is also contended that 313 statement was recorded in Kannada and not 9 administered Oath to interpreter while recording 313 statement. There is an inordinate delay of five hours has not been explained in reaching the FIR to the Court and Section 106 of the Evidence Act is not applicable as contended by the prosecution. The prosecution also has to prove that accused was working with the victim. The very voluntary statement creates serious doubts and record discloses that the same was computerized. There is a discrepancy with regard to the seizure of the articles. The iron rod is not connected to incident and the prosecution also failed to prove that the same iron rod was used for committing the murder. The counsel in support of his argument he relied upon the Judgment reported in (2014) 2 SCC 1 (Lalita Kumari Vs. Government of Uttar Pradesh and others) and also he has relied upon Judgment of the Apex Court reported in 2019 SC 410 (Uppala Bixam alias Bixmaiah Vs. State of Andhra Pradesh). The counsel also relied upon the Judgment (2015) 7 SCC 178 10 (Tomaso Bruno and another Vs. State of Uttar Pradesh). The counsel also relied upon the Judgment AIR 2018 SCC 4005 (State of Karnataka Vs. A.B.Mahesha and others. Having relied the above judgments would contend that the prosecution fails to prove its case.
9. In reply to the arguments of the defense counsel, the HCGP relied upon the Judgment reported in 2016 (3) JLJR 274 (Rajesh Shivagiri Vs. State of Jharkhand) in respect of Section 106 of Evidence Act and would contend that, the accused has not explained anything in his 313 Statement. Having relied upon these Judgments he would contend that the Trial Judge has failed to consider the material available on record and hence, it requires interference of this Court.
10. Having heard the arguments of the appellant Counsel and also the counsel appearing for the State and also in keeping the contentions of both the 11 counsels, the point that arises for the consideration of this Court are :
(i) Whether the Trial Court has committed an error in acquitting the accused for the offences punishable under Sections 302, 201, 419 and 404 of IPC ?
(ii) What order ?
11. Before considering both oral and documentary evidence available on record this Court has to make it clear that, in a case of acquittal, this court has to examine material available on record and on re-appreciation to comes to definite conclusion while reversing the finding of the Trial Court that if the Judgment of the acquittal requires to be reversed there must be a non-appreciation of material available on record in a right perspective and merely coming to two views cannot be a ground to reverse the finding of the trial Court. Keeping in mind the appellate jurisdiction this Court has to appreciate both oral and documentary 12 evidence and the appellate court also should be slow in reversing the same and given anxious considerations to the principles laid down in the judgments.
12. Now let us this Court has to examine the oral evidence and documentary evidence available before the Court including the material objects which were seized and marked.
13. The PW-1 Balakrishna Guled who was present at the time of recording voluntary statement of the accused as per Ex.P.2 and he is also spot mahazar witness of the dead body which was buried was exhumed in his presence and mahazar was drawn in terms of Ex.P-7. He is also a scribe of the complaint as Ex.P-10 and he also a mahazar witness to Ex.P-11 i.e. exhumation mahazar in which clothes on the dead body and iron rod used for commission of the offence have been seized at the instance of the accused. He also identifies the MOs.1 to 11. He is also seizure mahazar 13 witness to Ex.P-12 under which MO-12 to 21 have been seized. He was subjected to cross-examination. In the cross-examination it is elicited that, he wrote the complaint in Kannada since Kunjali translated the same into Kannada when the PW-4 told in Malyalam. It is elicited that when the statement of the accused was recorded all of them were present and the same was recorded in the Chambers of PSI. The statement of accused was also translated by Kunajali. He says he has signed the statement of the accused which was taken out the print in the police station. The complaint was written in terms of Ex.P-10 at Kerodi village. The ASP has taken the complaint at the spot. The ASP himself has put the questions to the accused in Kannada and the same was translated by Kunjali in Malyalam to the accused. He admits that in the mahazar not specifically mentioned who has given instruction and who wrote the same. The exhumation of the body was started at 3:00 p.m and the same was removed at around 4:15 p.m. 14
14. PW-2 Kumara Gouda in his evidence he says that, he is the witness to the inquest report Ex.P-13 and he has identified Mos.1 to 11 which belongs to the victim when the body was exhumed. It is his evidence that the accused only pointed out the spot and while exhuming the body they found cloth, blanket, iron rod and the body was found. The Tahashildar has drawn the mahazar in terms of Ex.P-13. In the cross- examination, he admits that, from the place where the body was exhumed to the extent of 100 to 200 meters there were no houses. When the body was removed noticed injury on the face, ear and on eyes. The Iron rod which was found at the spot was having sharpness in one end and in another end there was a broadness in the other end. He did not notice blood stains and the said iron rod was contacted with mud and cow dung. It is suggested that, he was a inquest mahazar witness in more than 50 cases and the same was denied. It is 15 suggested that he was not present at the spot and the same was denied.
15. The PW-3 Raghavendra is the seizure mahazar witness to Ex.P-15 under MOs. 23 to 32 have been seized at the instance of the accused. He is also witness to seizure mahazar Ex.P-16 under which Mo-33 mobile has been seized in the shop of PW-6 at the instance of accused. Thereafter all of them went to the house of PW-9 and mahazar was drawn in terms of Ex.P-17 under which MOS.34 to 39 have been seized. Thereafter they went to the house of PW-11 Babu, there the police have seized MOs.40 and 41 by drawing a mahazar in terms of Ex.P-18. He is also a witness to the seizure mahazar Ex.P-17 under which Rs.5,000/- was seized. Rubber role machines MOs-43 & 44 and water tank MO.45 were also seized. He was subjected to cross- examination. In the cross-examination, it is elicited that, he was called to Police station, when he was in van 16 stand. He admits that he was not having any acquaintance with the accused. He does not know which language the accused speaks but he has signed in Maliyali language. The house to which they visited belongs to Rizu and they reached the said house at 5:00 p.m and they were there till 7:30 p.m. The accused was talking to Kunjali and in his presence the police did not ask the said Kunjali that accused knows which language. The Kunjali also boarded the Jeep at Sagar Police Station and he was a auto driver. It is elicited that in the mahazar he did not mention anything about Rs.5,000/- and also about water tank. It is also elicited that they went to Rajasingh Mobile shop and Kunjali asked about the mobile with Rajasingh. The said Raja Singh has produced the mobile. The accused gave signal to stop the vehicle and thereafter accused showed the house and Kariyappa was knowing only the Kannada language. The said Keriyappa showed the house of Sunil Gowda. The said Sunil Gowda told that he is having 17 some of the items. The said Kariyappa has pointed out the house of the Sunil Gowda and he only spoke to him. The said Sunil Gowda went inside and brought the properties and handed over the same. He also found rubber trees around the said house. The Babu told that they have given agreement paper but he did not read the contents and also did not ask who is the author of the same and also he did not notice who all have signed the said agreement. In the rubber machine it is mentioned as KJ and they were there from 1:30 to 2:00 p.m. and thereafter they went to Holekatte village and found 5 liters of water drum and the same was also seized. He also admits that, the police told that they are seizing the properties and told him to sign the same and accordingly he has signed.
16. PW-4 Sajith is the son of the Victim and he says that he has received a call from Stanie regarding sale of their property and also informed about the death 18 of his father. After receiving this information, he came and lodged the missing complaint in terms of Ex.P-44 and having found the dead body he gave another complaint in terms of Ex.P-10. He also identifies the clothes of the dead body. He was also subjected to cross-examination. In the cross-examination it is elicited that his father came alone to Kerodi village and before purchasing the property at Kerodi he has sold the property at Kerala. It is suggested that, while selling the Kerala property they have opposed the same and the said suggestion was denied. It is suggested that there was no any cordiality between his father and his family members and the same was denied. It is suggested that his father quarreled with the family members and came to Sagar, the same was denied. He cannot tell who gave the phone number of him to Stanie. It is elicited that on 10.01.2012, he had called the said Kunjali, but he did not make any call to the said Kunjali on 19.01.2012. He admits that, when he gave the missing complaint, he 19 did not suspect anyone, but suspected the person who was working with him was missing. It is elicited that the accused was working with his father from October and the same was told to him by his father. He did not enquire the native of Siju Kurian and his father also did not tell anything. His father only mentioned his name as Siju Kurian. He cannot tell who is the scribe of the complainant since he was under tension. He admits that he was not having any documentary proof that the accused was working with his father, but only his father has told him. He also admits that he cannot tell how his father was having acquaintance with Stanie. It is suggested that at no point of time this accused was staying along with his father and the same was denied. The accused was not knowing Kannada and police also were not having acquaintance with Maliyalam. It is elicited that, if a person dies then his children become owners. It is suggested that for the death of his father 20 this accused is no way connected and the same was denied.
17. PW-5 Lizo is the friend of the accused and he speaks about rubber tapping machines were sold to his brother in law Babu (PW-11) under the agreement prepared by Advocate PW-15. He speaks about Ex.P-15 under which MOs.23 to 32 have been seized from his house which are said to have been given by the accused. It is his evidence that accused has sold one water tank capacity of 5000 liters belongs to the deceased to Dany as per the instructions of the accused for a sum of Rs.12,000/- and out of the said amount Rs.7,000/- has been deposited to the accused account. The challan has been marked as MO.46 and he has identified the amount of Rs.5,000/- which is seized by the police through him. He was subjected to cross- examination. In the cross-examination it is elicited that, he used to tap rubber belongs to others. Before going to 21 Jose C. Kafan Garden land along with police he has visited four times. First time he went in connection with rubber roller. Before seeing the roller machine he has not seen the Jose C. Kafan, but found rubber roller outside the house. He admits that, the Binu who has purchased the property first it was belongs to Jose C. Kafan. He cannot tell the extent of the land. He did not find any foul smell when he visited the garden land. He cannot say who was staying along with Jose C. Kafan. He did not enquire in terms of MO.46 whose account the amount was transferred, but he admits amount did not reach the accused. They have approached the Advocate to prepare the document. On that day, they gave Rs.30,000/-. Rs.22,500/- was given in cash. The document MO.41 came to existence in the presence of the Advocate but he was not present at the time of the negotiation. It is suggested that Jose C. Kafan was not having rubber roller and the same was denied. He admits that in MOs.40 & 41 while mentioning the name 22 as Binu found some discrepancy. When the police asked about the documents, he gave all the documents. He admits that he did not speak to Binu in the presence of the Police. He admits that he cannot tell accurately that the body was belongs to the Jose C. Kafan. There were 10 to 20 persons at the time of exhumation of the body. They found bed sheet cloth and all were mud slinking. He also found the injury caused by an iron rod, but he did not notice blood stains. It is suggested that, Binu, Stanie, Denny and himself committed murder and stolen the agricultural equipments and the same was denied. It is suggested that this accused no way connected to the murder of the Jose C. Kafan and the same was denied. It is suggested that, he himself went to sell the property saying that, Jose C. Kafan is not having any legal heirs and the same was denied.
18. PW-6 Raja Singh is a mobile shop owner and in his evidence, he says that, mobile was seized and the 23 same is identified as MO.33 at his shop at the instance of the accused. He also identifies the accused that he was having acquaintance with him. It is also his evidence that, the police brought the accused after one month in the evening between 6:30 to 7:00 p.m. It is his evidence that accused demanded the mobile and he gave the same. At that time Raghavendra and Chandrashekar were panch witnesses and Kunjali translated Malayalam to Kannada. He identifies his signature in Ex.C-16. He admits that he does not know Malayalam. He also admits that when the mobile was given to him there was no sim. He also admits that he did not give any complaint when he lost ear-phone. He also admits that he cannot tell the address of each of the customer. He also admits that, he was not having carbon majic wise mobile and he went and brought the same. It is suggested that, accused has not given any mobile and also he did not purchase any mobile and the same is denied. It is suggested that he is falsely 24 deposing that some one came and gave mobile and the said suggestion was denied. The police suddenly came to his shop and not having any prior intimation. When the accused came along with police he cannot tell what colour cloth he was wearing.
19. PW-7 Keriyappa is a coolie and he used to go to the field of the victim. It is his evidence that he was present when Sunilkumar has purchased items Nos.MOs.34 to 38. He acted like middleman to the said transaction and he identifies the accused and accused was not knowing Kannada. One Puttappa and accused came together. The said Puttappa told him that accused is the brother's son of victim and he told his name as Binu. He use to speak to him in Malayalam since he was not knowing Kannada. It is his evidence that accused told that owner is not keeping good health and they are in need of money and hence, he is telling that he is selling rubber machine for his treatment. On the 25 next date, Sunilkumar himself went to Jose C. Kafan's Garden and examined the rubber roller. The accused demanded Rs.50,000/- but he quoted Rs.30,000/- and the same was not finalized. He also found other agricultural equipments and he also told that the same were also kept for sale. They had purchased the same for Rs.1,500/- i.e. spades, drums, oil extracting machine, handsaw (garagasa), the same were taken in an auto rickshaw. The police came after two months along with accused and accused pointed out that he sold the above articles to him and hence they have handed over the same to the police. He identifies MOs.34 to 38. He also identifies photographs Ex.P-23. He was subjected to cross-examination. He says that he left the job of Jose C. Kafan in the year 2011 and thereafter he was attending the Coolie work of Puttappa. The Family members of Jose C. Kafan were not visiting. He was having cordial relationship of Jose C. Kafan. There was no any electric connection, but he used to 26 use mobile one hour in the morning and one hour in the night. They were not having any room to keep the agricultural equipments. He admits that, now all people keep the drums. He took one drum and Sunilkumar gave the money and they have not given separate price to agricultural equipments. Sunilkumar gave him the small drum. It is suggested that, he only stolen the same and sold the same to Sunil Gowda and the same was denied. He admits that, Puttappa introduced the said accused. Till then he was not aware of him. He did not witness both victim and accused were staying together. He did not enquire how Jose C. Kafan passed away. It is suggested that, Police have suspected his role and role of Puttappa and the same was denied.
20. PW-8 Stanie who is the brother in law of PW- 5, in his evidence he deposes that, PW-5 Lizo has purchased three acres of land from the victim four years ago and his sister husband also purchased three acres 27 of land from the victim. He was subjected to cross- examination. In the cross-examination he also admits that, there were no window shutters to the house of Jose C. Kafan. There was no water facility and fencing to the said land. The Keriyappa and Puttappa both were regularly going to work and others were not there along with him. He was staying alone in the said house. He cannot tell name of vendor of his land. He is not having any details of Jose C. Kafan. He admits that, the said Jose C. Kafan told that, if he dies he has to be cremated in the said place. Jose C. Kafan was used to become angry if anyone talks about his children. But he was visiting the Kerala. But no one came from Kerala including his wife and children to see him. He admits that, 8 to 10 people came from Kundapura two days prior to coming to know about the death of Jose C. Kafan and threatened him, but he has not given any complaint. He did not mention the same before the police. It is suggested that, police have called and told 28 him that there was an allegation of murder against him and they are going to arrest him, but they did not come in the night, but called him to police station. When he went to Police Station, he did not find the children of Jose C. Kafan. It is his evidence that Lizo told him that Jose C. Kafan passed away in his presence. He will get it the sale deed from the children of Jose C. Kafan and he demanded Rs.1 lakh as commission and he agreed to purchase the same and also to give commission. The person who spoke to him over phone told that, his father passed away and they are going to sell the same for lesser price. When he comes to know that Jose C. Kafan was not passed away and hence he stopped the said transaction.
21. PW-9 Sunilkumar is the witness to Ex.P-17, seizer mahazar and MOs.34 to 39 have been seized from his house. He deposes that, he was having acquaintance of Keriyappa and also the accused. It is 29 his evidence that, he has seen the accused in the garden land of Jose C. Kafan. The Keriyappa PW.7 took him that certain equipments were there for sale and hence, he went to the flat of Jose C. Kafan in the month of December, 2011. The accused was present and he was talking in Maliyalam and the said Keriyappa was understanding little Maliyalam and he was translating. He told that rubber machine is for sale and on enquiring the rate he felt that it was costly and hence, he did not purchase the same and other agricultural equipments were also there and he quoted Rs.2,500/-. The accused agreed to sell the same for Rs.2,000/- and purchased the same. The police came along with accused and Keriyappa after one month and seized the articles which they have purchased by drawing mahazar in terms of Ex.P-17 and material objects were marked as MOs.34 to 39. He was subjected to cross- examination. In the cross-examination, he admits that, Keriaypapa and Puttappa were working permanently 30 with Jose C. Kafan. He was not having any acquaintance with the accused. He also admits that he cannot tell who was staying along with Jose C. Kafan.
22. PW-10 Kunjali in his evidence he says that, in his presence voluntary statement of the accused was recorded and he was acted as interpreter between the accused and the police. The Ex.P-2, P-7, P-15 are drawn in his presence and MOs.23 to 32 also identified by him. It is also his evidence that Ex.P-7 was also drawn and MOs.37 to 39 were identified. He was subjected to cross-examination. In the cross-examination, he admits that, he is not knowing Maliyalam for writing and reading and so also Kannada. He had seen the Jose C. Kafan prior to Christmas in 2011 and he dropped him from Kerudi main road to Bus-stand and collected Rs.125/- and thereafter he did not see him. It is his evidence that he was staying alone and he use to prepare food on his own. He also sold three three acres 31 of two bits of land. He also admits that at no point of time, the accused has visited his house. The police directly enquired the accused and did not enquire him and police did not directly talk to the accused and he cannot tell the language of the accused. He was standing when the police was writing. He admits that, when he has translated Maliyali language of the accused and the same was recorded in the video. He was not present while writing the missing complaint and he cannot tell in which language the complaint was given. He says in the bed sheet which was available on the cot having blood stains and also found blood stain cloth when the body was removed. The accused himself removed the door and went inside the house and the accused was hand cupped. The body was found when the mud was dugged to the extent of three feet and he cannot tell who are all coming to the house of Jose C. Kafan for work. He also says that they found iron rod which contains the blood stains. He also admits that the 32 second complaint was given to Superintended of police and complainant Sajit Kafan told the same in Maliyalam and he translated the same to him in Kannada and the same was written by PW-1. The police were not having any prepared questions and police have noted the same in their hand writing and the same was typed in the computer and obtained the signature of the accused in the computerized copy. Witness volunteers again that he does not know whether the police have taken his signature or not, but he has signed the same. The cloths were covered on the body. It is suggested that, he did not notice any blood stains and the same was denied. It is suggested that Sajit Kafan showed the body of his father and the same was denied but he categorically stays that the accused himself showed the dead body.
23. PW-11 Babu who is the worker at the house of Sunilkumar, he does rubber tapping. He is the 33 purchaser of the rubber roller machine under the agreement Ex.P-40. He purchased the same in the presence of the accused in the house of the victim. He was subjected to cross-examination. In the cross examination, though the amount is mentioned as Rs.30,000/- he gave Rs.27,000/-. The accused was not knowing Kannada and he was knowing maliyalam. It is suggested that, rubber roller machine was not belongs to Jose C. Kafan and the same also not shown to him and the same was denied. It is suggested that, the signature available on MO-40 stamp paper has not been signed by the accused as Binu and the said suggestion was denied.
24. PW-12 Dany in his evidence, he says that he knew Lizo and he has purchased water tank from Lizo for a sum of Rs.12,000/- and he also identifies water tank which has marked as MO.45 and paid the entire amount in a single day. In the cross-examination he 34 admits that he has not seen Jose C. Kafan and only he went to see the water tank to his garden. The same was sold by Rizu and he paid the amount to Rizu only. The said Rizu only showed the water tank. The actual cost of the said water tank is Rs.15,000/- and the said type of water tank are also available in the shop. He did not speak to accused at any point of time.
25. PW-13 Bisu George in his evidence he says that he has purchased three acres of land from Jose C. Kafan. In his evidence he says Rizu met him in the hospital and he only told that victim has suffered from Paralyses Attack and hence, he was taken to Kerala and thereafter to America for treatment, but he passed away. The body was not brought to India and he was buried at America itself. It is his evidence that he says again that Lizo told that children of Jose C. Kafan intends to sell the property and he expressed that he is not going to purchase, but he can ask his brother-in- 35 law. The said Lizo told him that he has got the documents and hence, he himself, his brother-in-law and Lizo all went to the Advocate Nagaraju and he advised to get the signature of all the legal heirs of the victim and thereafter they left to their house. However, in the meantime, again Lizo called him telling that Kafan son Sajith spoke to him and again they went near the Court. A person called Lizu and he spoke to his brother-in-law Stanie over the phone and told that he will collect the money at Sagara. He was having acquitance with one Kalaturu Jose and hence, he enquired with him and he told that Jose C. Kafan did not visit Kerala and America and his children have confirmed that something fishy in the matter and thereafter the son of the Jose C. Kafan came and gave the complaint. He was subjected to cross-examination. In the cross-examination, he admits that they have not given ay complaint telling that someone else is selling the property. He also admits that he did not speak 36 directly to the children of Jose C. Kafan. He is also not having any details of the family of the Jose C. Kafan.
26. PW-14 Binu in his evidence he deposed that he was having acquaintance with the deceased and also seen the accused in the form land of the deceased. It is his evidence that he purchased one sim card in his name and handed over to the deceased. The said sim card was left at the shop of PW-6 Raja Singh by the accused. He has identified the accused seeing that he was with Jose C. Kafan. Prior to appointing him in the month of September, 2011 an advertisement was given for requirement of a person. It is also his evidence that Jose C. Kafan told him that he has got rubber roller, it cost about Rs.40,000/- he can pay the amount later on and he has expressed difficulty to make the payment. But he made the payment of Rs.9,600/-, but rubber roller machine was not taken, but subsequently when he met the accused in the house of Jose C. Kafan 37 accused was alone and he told that he went to Kerala. When he visited, several time accused only was there. But he insisted him to pay the amount of rubber roller machine and he scolded him. It is also his evidence that, the mobile shop owner called and told that, a person came to purchase the mobile, but he left the shop telling that he will bring the money. In the meantime, he came to know that victim was murdered and told that accused had committed the murder. He says that sim card in his name which was given to Jose C. Kafan. In the cross-examination it is elicited that Jose C. Kafan used to stay alone in the house. He also reiterates that he came to know the name of accused through Jose C. Kafan and accused also used to visit his workshop to charge his mobile. It is suggested that Lizu, Stanie, Dany and he himself and Jisu have committed the murder and the same was denied. 38
27. PW-15 B.N.Udaykumar in his evidence he says he is practicing as an Advocate. That on 09.12.2011, accused came along with Babu in connection with purchase of rubber roller machine. The said Babu told him that he intend to purchase the rubber roller and a document has to be prepared and having collected the details he prepared the document in terms of Ex.MO-41. The accused was not knowing Kannada. The accused was not aware of both Kannada and also English and hence, Lizo translated the same. The accused also has signed the said document so also the said Lizo. But he admits in the cross-examination that he has not signed Ex.P-41. It is suggested that he has falsely deposing that accused came to his house along with Lizo and Babu and the said suggesssion was denied.
28. PW-16 Naveen in his evidence, he says the accused came and stayed in the hotel and he was 39 working as room boy. He had collected Rs.750/- as advance and the room rent was Rs.250/- and he issued the receipt for having received the advance amount in terms of Ex.P-34. The entries are in Ex.P-35. When the accused after having bath at about 10:30 leaving the lodge police came and apprehended him and witness also identifies the photographs Ex.P-33. He was subjected to cross-examination and in the cross- examination he says that hand writing available in Ex.P-35 is in the hand writing of the accused. It is suggested that he has not written the receipt Ex.P-34 and also he has not worked as room boy and the same was denied.
29. PW-17 Hanumanthappa Kolagi in his evidence, he says he received the complaint sent by Dr. Sharanappa and the same was registered in Crime No.14 for the offences punishable under Sections 302, 201 and issued FIR in terms of Ex.P-36. It is his 40 evidence that while taking out the print of the FIR, electricity supply was disconnected and hence, could not get the print immediately and hence, there was a delay. In the cross-examination a suggestion was made that when he was received the complaint in terms of Ex.P-10 he should have written the FIR in the hand writing, but he says that he was waiting for power supply, hence there was a delay.
30. PW-18 Adarsh, Police Constable in his evidence he says that he was handed over the FIR to submit the same to the Court and he took the same and handed over the same to the Magistrate at 10:15 p.m. In the cross-examination, he admits that when the FIR was handed over timings will be mentioned.
31. PW-19 Tahasildar who conducted exhumation on the request of the police he says that, the body was exhumed and the mahazar was drawn in terms of Ex.P11. Thereafter he conducted inquest in 41 terms of Ex.P-13. He also identifies the photographs at Ex.P-8 & 9. He also says Ex.P-14 is the photograph in connection with exhumation of the body. It is his evidence that accused only pointed out the place where he buried the body. In the cross-examinatijon he admits that accused was not knowing Kannada and he also did not speak to accused, but having translator at the time of drawing mahazar. He also admits that body was not in a position to identify and when the same was exhumed getting bad smell. It is suggested that, the place where the body was buried, the other brother of the PW-4 and ASP showed the same and the same was denied.
32. PW-20 in his evidence he says that Binu called him and he was having acquitance with Sajith Kafan and Ajith Kafan and so also Ranjith Kafan and all of them went to his house in order to go to Sagara and accordingly of all them went to Kerudi village. They did 42 not find the father of his friends and hence, they gave the complaint after getting the computer typed the complaint in the computer centre and he translated the contents of the complaint to the Kannada. He also says he has singed the complaint as it was translated by him. On the next day, they went to police station and accused was already arrested and thereafter accused took all of them to Kerudi village and showed the body where he buried. The police and also the general public also have arrived. In the cross-examination, he admits that he translated the statements of Ranjith and Ajith to Kannada. It is suggested that, he did not accompany the police and children of Jose Kafan and the said suggestion was denied. It is suggested that he did not translate the same to the Kannada and he is falsely deposing at the instance of the children of Jose Kafan and the same is denied.
43
33. PW-21 Pavan Kumar the Photographer in his evidence he says that, he took the photographs and also video graphed and accused told that he will point out the place where the body was buried and accordingly he showed the same and that he videographed and also taken the photographs in terms of Exs.P-5, P-8, P-9, P- 14, P-20, P-21 to 26 and P-30 and P-33 and those photographs were taken by him. In the cross- examination it is suggested that the accused was not in the spot and using his brain he created the photographs of the accused and the same was denied.
34. PW-22 Dr. Keertiraj who conducted postmortem and in his evidence, he says that after exhuming the body, photographs were taken and he noticed the injuries and also given the opinion that due to the said injuries he succumbed. It is also his evidence that they also found iron rod while exhuming the body and the same contains the blood stains and 44 the said portion was subjected to scraping and collected the blood stains and the same were sent to FSL. It is also his evidence that, the death was taken place in between 45-60 days and given report in terms of Ex.P- 41 and FSL report is marked as Ex.P-42. In the cross- examination, it is suggested that before he arrived to the spot, body was already removed and the suggestion was denied. It is suggested that he is falsely deposing that due to the said injuries on his forehead death was occurred and the same was denied.
35. PW-23 who prepared the sketch in terms of Ex.P-43 and PW-24 PSI, who registered the case in Crime No.12/2012 i.e. missing complaint based on the Ex.P-44 and issued FIR in terms of Ex.P-45. It is also his evidence that, he apprehended accused when he was in lodge and produced before the Addl. S.P. and given the report in terms of Ex.P-46. He was subjected to cross-examination and suggestion was made that he 45 did not apprehend the accused and deposing falsely and the same was denied. He admits that, he did not record the statement of the accused. The accused was talking in Maliyalam and Sajit Kafan was also not knowing kannada.
36. PW.25, who is the Additional Superintendent of Police in his evidence he says that a missing compliant was given and after obtaining the oral permission, he took up further investigation of the case and the complaint is also marked as Ex.P.44 and it is suspected that the accused might have committed the murder and hence, instruction was given to PSI. That on 21.01.2012, the accused was apprehended and produced before him. The pancha witness PW.1 was secured and voluntary statement of accused was recorded and the same was videographed. The accused was not aware of the Kannada and hence, one Kunjali was translating the same and the same was typed in the 46 computer. The accused admitted guilt and in his voluntary statement he told that he will show the place where the body was buried and also he told that he had sold the agricultural equipments belonging to the victim. During that time photographs were also taken and also videographed the same. He identifies Ex.P.5 photograph and CD as Ex.P.6. He had secured pancha witnesses and accused and took all of them to garden land of Jose C Kafan and showed the place where the body was buried and also showed the house and mahazar was drawn in terms of Ex.P.7 and the body was exhumed and also found cloths and iron rod. The Tahasildar also held the mahazar and the same was also videographed and photos were taken in terms of Exs.P.8 and P.9. The doctor was also secured and postmortem was conducted and the articles which were found while exhuming the body, the same were seized. The accused was subjected to personal search and recoveries were made including two sim cards, mobile, 47 vodaphone sim, agreement executed on the stamp paper, ID card, Canara Bank ATM card, South Indian Bank ATM card and also other three sim cards and thirty five rupees. The same are marked as MOs.12 to 21 and mahazar was drawn in terms of Ex.P.12. MO.47 is also marked. That on 23.01.2012, the accused was taken to police custody and thereafter agricultural equipments which were sold by him were also recovered and in this regard, mahazars were also drawn. MO's are marked as MOs.34 to 39 and exhibits were also marked. Photos were also marked as Exs.P.25 and 26 and an amount of Rs.5,000/- was recovered and MO.42 is also marked and Exs.P.34 and 35 were also marked. So also Exs.P.37 to 40 and MO's.1 to 11 and 22 were also marked. He was subjected to cross-examination. In the cross-examination he admits that he himself sent the complaint to the concerned police and also admits that after the registration of the case CPI has to investigate and but witness volunteers that CPI was on leave. It is 48 also his evidence that when he enquired the accused at that time the friends of son of victim were also there. It is suggested that he has not recorded the statement of the witnesses and the same is denied. He admits that the Lizo has collected an amount of Rs.12,000/- from Dany in connection with sale of rubber roller. The stamp paper was secured from the post office. He admits that in order to sell the water tanker rubber roller Liju worked as broker. It is suggested that accused has not given the voluntary statement in terms of Ex.P.2 and the same was denied. It is suggested that he is falsely deposing that the mobile was recovered from the shop of Rajasingh and the same was denied. It is suggested that he is falsely deposing that the recoveries are made at the instance of the accused and the said suggestion was denied.
37. Having considered both the oral and documentary evidence available on record, this Court 49 has to analyze the reasoning given by the trial Court while passing the impugned order and also re- appreciate both the oral and documentary evidence on record in order to arrive for a just conclusion whether the accused has committed the murder or not.
38. The case of the prosecution is that the victim was having agricultural properties and he was away from his family members. Though he is originally resident of Kerala, he came and settled by purchasing the property and he was alone in the house in which he was staying. Taking advantage of the same, the accused, who has joined the victim recently made up his mind to take away the life of the victim and to enrich himself, he committed the murder of the victim.
39. The prosecution in order to prove its case, examined PWs.1 to 25 and also relied upon the documentary evidence as well as the material objects 50 and this Court has to find out the truth analyzing the evidence on record.
40. Now before analyzing both the oral and documentary evidence, first this Court would like to consider and analyze the material available on record whether the death of Sri.Jose C Kafan is homicidal or not has to be considered. In order to arrive for a just conclusion whether it is homicidal or not, this Court has to consider the evidence of the doctor who has been examined before the trial Court as PW.22, who conducted the postmortem examination and given the report in terms of Ex.P.41. It is his clear evidence that the death was on account of the injuries sustained by the victim to his brain which has resulted in succumbing to the injuries. It is also his evidence that the death was taken place 45-60 days prior to his exhumation of the body. He identifies the signature as Ex.P.41(a). In the cross-examination except making the 51 suggestion that he is falsely deposing that on account of injuries sustained by him on his head died, nothing is elicited. Further, suggestion was made that he has not sustained fatal injuries and the said suggestion was also denied. It is important to note that this doctor was secured at the time of exhumation of the body and it is suggested that before his arrival already the body was exhumed and the same was denied. It is suggested that iron rod was not used to assault him and the same was denied.
41. Having taken note of the evidence of PW.22 and also the postmortem report which is marked as Ex.P.41, it is clear that the death was occurred due to shock and hemorrhage due to cerebral hemorrhage as a result of injury to vital organ (brain). There is no any effective cross-examination to disbelieve the evidence of PW.22. The trial Court has also rightly observed that it is a case of homicidal and this Court also does not want 52 to disturb the finding of the trial Court in coming to the conclusion that the death is homicidal one.
42. Now this Court has to analyze the evidence with regard to whether this accused can be connected to death of Jose C Kafan. The prosecution mainly relies upon the evidence of PWs.1 and 2. The PW.1 is the mahazar witness to Ex.P.11, the same was drawn at the spot where the body was exhumed. The PW.1 identifies the signature in the mahazar. The prosecution also relies upon the evidence of PW.2, who is also inquest mahazar witness in respect of Ex.P.13. He also identifies MOs.1 to 11 along with PW.1. That MOs.1 to 11 were seized at the instance of the accused. The prosecution relies upon the evidence of PW.4, who was also present at the time of exhumation of the body who is none other than the son of the deceased victim. The prosecution also relies upon the evidence of PW.10 who translated the voluntary statement of the accused and spot 53 mahazar Ex.P.7 under which the accused has shown the place where he buried the body. The other official witnesses are the doctor-PW.22 and the PW.19- Tahasildar, who conducted the exhumation mahazar in terms of Ex.P.11 and also conducted the inquest as per Ex.P.13. The Investigating Officer, who requested the Tahasildar to come and conduct the exhumation of the body of the deceased has been examined as PW.25. It is his evidence that a request was made to the doctor as well as the Tahasildar to conduct exhumation and also the postmortem.
43. Having considered the evidence of PW.1, it is his evidence that the accused in terms of voluntary statement led the I.O. and panch witness to the spot and showed the place where he buried the body. It is also his evidence that he also showed the house in which the victim was residing and where he committed the murder. It is his specific evidence that while giving 54 the voluntary statement he was present. PW.1 categorically says that the statement of the accused was translated by PW.10-Kunjali into Kannada language. He categorically says that the statement of the accused was also videographed by PW.21. PW.5 only put questions to the accused. Based on the voluntary statement of the accused only the body was unearthed and exhumed and the mahazar was drawn. He also in his evidence says that he noticed the injures on the head and face. The mahazar was drawn at the instance of the senior officer of the police department.
44. The other witness is PW.2, who also categorically deposed that the accused only pointed out where the body was buried. Devendra and Shivu helped in exhuming the body and at the first instance they found cloth and thereafter the body was found and along with body iron rod was also found and the same were seized and the same have been identified. In the 55 cross-examination he also reiterates that he noticed the injuries on the face near the eye and ear and he did not notice any other injury. In the cross-examination of PWs.1 and 2 nothing is elicited that they were not present at the time of exhumation of the body. PW.4 is the son of the victim and also in his evidence he states that he was also very much present at the time of exhuming the body. In the cross-examination of PW.4 except eliciting the answer that at the time of filing the complaint he did not suspect any person, nothing is elicited. It is elicited that his father only told Siju Kurian is working with him but he was not having any other personal information about the employment of this accused. In the cross-examination, a suggestion was made that his father had sustained injury due to fall on account of his old age and the same was denied. It is further suggested that the accused was not staying along with his father and the same was also denied. He admits that the accused was not knowing Kannada 56 language, but he categorically says that PW.10 translated the statement of the accused. It is suggested that they only brought the accused and implicated in the case and the same was denied. The witness PW.22- doctor categorically says that he was very much present at the time of exhumation of the body and a suggestion was made that when he came to the spot at that time the body was already exhumed and the said suggestion was denied and he categorically deposed that the accused only pointed out the place. The evidence of PWs.1, 2, 4, 22 and 19 Tahasildar who conducted the exhumation of the body and PW.25 investigating officer is categorical that the body was exhumed at the instance of the accused and the accused only pointed out that where he has buried the body. In the cross- examination of PW.19 Tahasildar nothing is elicited with regard to the exhumation of the body and not disputed in the cross-examination regarding accused has pointed out the place. In the chief of PW.19 he has categorically 57 deposed that the accused only pointed out where the body is buried and not disputed the same. In the cross- examination only it is suggested that the place of the burial of the body was shown by PW.4 and another his brother to the Superintendent of Police and the said suggestion was categorically denied. Hence, the prosecution has proved the exhumation of the body at the instance of the accused and PWs.1, 2, 4, 10, 19, 22 and 25 all were present and all of them deposed that the body was exhumed as the accused is pointed out the place where he buried the body and their evidence is consistent.
45. This Court would like to refer the judgment of the Co-ordinate Bench of this Court reported in ILR 2019 KAR 3325. In this judgment, this Court held referring Section 27 of the Evidence Act that if any fact is discovered at the instance of the accused, the same 58 has to be taken note of it. This Court would like to refer para 20 of the said judgment.
"20. It is to be noted th at Sec tion 27 of the Evidence Act is cle ar th at if it is discovered at the instance of the accused, the s ame has to be taken note. In the case on hand, it is to be noted that the evidence of P.Ws.1, 2 and 8 who are all the witnesses to exhu mation of the body cons istently depose bef ore the Court th at in their presence, P.W.3 helped to exhu me the body in the presence of P.W.15 who is the Assis tan t Commiss ioner. It is the c ase of the prosecutio n that C.W.42 made the request to P.W.15 to exhu me th e body since accused Nos.1 and 3 hav e given voluntary s tate ment th at af ter committing the murder, the body was buried and sho wed the place. In the presence of all these witnesses, the body was exhu med and the s ame was iden tif ied that the body belongs to deceased -
S mt.Kamal amma and DNA also proves
th at the said body belongs to
S mt.Kamal amma. "
59
This Court would also like to refer to Section 27 of the Evidence Act.
"27. How much of information received from accused may be proved.- Prov ided th at, when any f act is deposed to as d iscovered in consequence of inf ormation received f rom a person accused of any of f ence, in the cus tody of a police of f icer, so much of such inf or mation, whe ther it amounts to a conf ession or no t, as relates d istin ctly to the f ac t thereby discovered, may be proved."
46. This Court would also like to refer the judgment of the Apex Court in the case of Swamy Shraddananda @ Murali Manohar Mishra vs. State of Karnataka, (2008)3 Crimes 215, wherein in similar circumstances, the body was recovered which was kept inside a large wooden box that he had earlier got made for the purpose and dropping the box into a pit that he had got specially dug up in grounds of 60 his house just outside their common bed room. The Hon'ble Apex Court invoking Section 27 of the Evidence Act held that discovery and recovery of the exhumed body on the information given by the accused is to be taken into consideration. Hence, the above case is aptly applicable to the case on hand for the reason that accused only led the Police and body was exhumed in the presence of Tahasildar who has been examined as P.W.19 and other witnesses PWs.1, 2, 10, 22 and 25.
47. This Court also would like to refer the judgment of the Hon'ble Apex Court in the case of Asar Mohammad and Ors vs. State of U.P., (AIR 2018 SC 5264), wherein the Hon'ble Supreme Court has held as follows:
"Fac ts need not be self -
prob atory and word 'f act' as conte mpl ated in Sec.27 of Evidence Ac t is not limited to 'actu al physic al mater ial 61 object'. Discovery of f act ar ises by reason of f act that inf ormation g iven by accused exhib ited kno wledge or men tal a wareness of inf or man t as to its ex istence at par ticular place. It includes discovery of object, place f rom wh ich it is produced and kno wledge of accused as to its exis tence."
48. This Court would also like to rely upon the recent judgment of the Apex Court in Patturajan vs. State of Tamilnadu, (2019)2 SCC (Crl)354, wherein it is held that recovery and identification of dead body and articles belonging to deceased at the instance of accused and non explanation by accused links in the chain of circumstances firmly established against accused. The Apex Court also referring to Section 27 of the Evidence Act regarding discovery of fact held that recovery of incriminating article which revealed the relevant fact prior to accused having led Police to very 62 same place from which the article was recovered earlier and recovery of dead body was made at the instance of accused. In the case on hand also, the recovery of dead body was made at the instance of accused. Further as held by the Apex Court that if a confession is made by accused before Police and a portion of confession leads to recovery of any incriminating material, such portion alone is admissible under Section 27 of the Evidence Act. In the case on hand also, the accused person led the Police as well as the panchas and in the presence of P.W.19 Tahasildar, the body was exhumed and hence the judgment of the Apex Court referred above is aptly applicable to the case on hand.
49. Having considered the evidence of PWs.1, 2, 4, 10, 19, 22 and 25, it is clear that the body was exhumed at the instance of the accused. It is also the 63 case of the prosecution that the body was unearthed at the instance of the accused and the witnesses PWs.1, 2, 4, 10, 19, 22 and 25 were present at the time of exhumation of the body, PW.19 drawn the mahazar in terms of Ex.P.11 and the same was done at the request of PW.25 investigating officer and PW.22 doctor was also very much present at the time of the exhumation of the body. It is also pertinent to note that the accused has pointed out the place where he has buried the body in terms of Ex.P.2 his voluntary statement and in the presence of these witnesses the body was exhumed and the same was identified that body belongs to the deceased Jose C Kafan. It is also pertinent to note that the body was buried in the garden land of the victim Jose C Kafan and surrounding the said area there were no any other buildings and the same is an isolated place and when the same was an isolated place and the body was unearthed at the instance of the accused, this Court can invoke Section 27 of the Evidence Act that it 64 was discovered at the instance of the accused. In the cross-examination of all these witnesses, it is not seriously disputed that these witnesses were not present at the time of exhumation of the body and also it is not the case of the defence that the accused has not led all of them into spot and no worthwhile cross- examination depicting the fact of discovery at the instance of the accused.
50. The learned counsel for the respondent would contend that already some of the people were there at the spot and the said contention also cannot be accepted since it was hidden in the mind of the accused and only the accused pointed out the place and the people have gathered at the time of exhumation of the body and it is natural when the accused apprehended and led the police and panchas the general public also gathered.65
51. When such being the case, the first and foremost circumstance in a case rests with the circumstantial evidence, in the present case, the body was recovered at the instance of the accused and the medical report says that it was homicidal one and the blood stained iron rod which was used for committing the murder was also recovered and the same was also discovered along with the body which was also stained with blood stains and the doctor PW.22 categorically says that the blood stains were removed by scratching the same from the iron rod and the same was sent to the FSL.
52. The other factors to be considered by this Court are that it is the contention of the prosecution that MOs.1 to 11 are seized at the instance of the accused and the same has been identified by PW.1 and MOs.12 to 21 were also seized by drawing mahazar in terms of Ex.P.12. PW.1 is the signatory to Ex.P.12 and 66 also MOs.12 to 21 are the things belonging to the accused which have been seized at the instance of the accused and mahazar was drawn and he was subjected to personal search. PW.1, who is the signatory to the mahazar also deposed that the same were seized at the instance of the accused. MOs.1 to 11 are what they have found while exhuming the body which are the belongings of the deceased and also the blanket which was covered on the body and cloths of the deceased and iron rod MO.11 and PW.1 is also witness to the mahazar. In the cross-examination of PW.1 nothing worthwhile is cross-examined in respect of seizure of MOs.1 to 21. It is also important to note that PW.2 has also identified MOs.1 to 11 since he was also present at the time of exhumation of the body. It is also pertinent to note that PW.3 is the seizure mahazar witness to Ex.P.15 under which MOs.23 to 32 wre seized at the instance of the accused. It is also his evidence that mahazar was drawn in terms of Exs.P.16 and 33 and 67 mobile was seized in the shop of PW.6. It is also important to note that PW.6 is also another mahazar witness to Ex.P.17 and the same was drawn in the house of PW.9 wherein MOs.34 to 39 were seized. It is also his evidence that they went to the house of PW.11 Babu and the police have seized MOs.40 and 41 by drawing mahazar Ex.P.18. It is also the evidence of PW.3 that in his presence mahazar Ex.P.19 was drawn and an amount of Rs.5,000/- was recovered and MOs.44 and 45 were also seized at the instance of the accused. PW.3 in the cross-examination stated regarding recovery of the agricultural equipments which were sold by the accused to different persons. PW.5, who is also a friend of the accused spoken with regard to the sale of the rubber roller and in this connection an agreement was prepared by PW.15 advocate and mahazar was drawn in terms of Ex.P.15 under which MOs.33 and 32 were seized. It is also his evidence that 5,000/- liters water tank was also seized which was sold 68 for an amount of Rs.12,000/- and an amount of Rs.5,000/- was recovered from PW.5 Lizo. The investigating officer also in the cross-examination admits that the said amount was seized at the instance of the PW.5 Lizo and not at the instance of the accused, but PW.5 speaks about the sale which was made at the instance of the accused. It is also pertinent to note that MO.33 mobile was seized from the shop of PW.6 and the said mobile was also seized at the instance of the accused. The prosecution also relies upon the evidence of PW.7 in order to prove the fact that Mos.34 to 38 were sold to Sunilkumar who has been examined as PW.9 and mahazar was drawn in terms of Ex.P.37 and MOs.34 to 39 were seized and PW.7 was also present at the time of seizing the same since he acted like a middleman to the transaction. PW.7 also identified the accused that the accused only sold the same and PW.9 confirms the same.69
53. Having considered the evidence of PW.9 and PW.7, it is clear that MOs.34 to 38 were sold to PW.9. PW.11, who is the worker under PW.9 speaks about the purchasing of rubber roller under the agreement. The advocate PW.15 also deposed that he had prepared the MO.41 agreement of sale to purchase the rubber roller and he categorically identified the accused that he had approached him in connection with sale of rubber roller and hence, the evidence of PWs.7, 9, 11, 15 is clear that the accused only did the transaction in respect of the sale of rubber roller and the same was recovered from the house of PW.9 and MO.41 agreement came into existence. Throughout in the cross-examination of all these witnesses, their evidence is consistent regarding the sale of agricultural equipments by the accused and all the witnesses identified the material objects and proved recovery at the instance of the accused. The prosecution also proved the sale of equipments by the 70 accused after committing the murder of the victim Jose C Kafan by examining all these witnesses.
54. It is also important to note that the accused was apprehended when he was in Sagar lodge at Sagar. In this regard, the prosecution examined PW.16 who is working as room boy and he also identifies the accused and says that the accused went to the lodge and booked the room and paid advance of Rs.750/- and room rent was Rs.250/- and in this regard he has issued receipt in terms of Ex.P.34. In the cross-examination of PW.16 except suggesting that Ex.P.34 is created at the instance of the police, nothing is elicited. The Court has to take note of the conduct of the accused when the missing complaint was given by PW.4 on 20th January, 2012. The accused tried to hide himself in a lodge and on credible information PW.24 went and apprehended the accused and produced him before PW.25 and thereafter voluntary statement of the accused was 71 recorded and the body was exhumed at the instance of the accused. This is an another circumstances proves the case of prosecution regarding conduct of the accused. The judgment reported in (2015) 1 SCC (cri) 663 in the case of State of Karnataka Vs. Suvanamma and Another is applicable to the case on hand regarding conduct of the accused. the relevant portion of the judgment reads as follows:
"10. T he Cour t deal ing with a crimin al tr ial is to perf orm the task of ascertain ing the truth f rom the mater ial bef ore it. It h as to pun ish the guilty and protect the innocent. Burden of proof is on the prosecu tion and the prosecutio n has to establish its case beyond reas onable doub t. Much we ight c annot be given to minor discrepancies wh ich are bound to occur on account of diff erence in perception, loss of me mory an d other invar iable f actors. In the absence of direct evidence, the c ircu mstan tial ev idence c an be the bas is of convic tion if the circu ms tances are of conclusive nature 72 and rule ou t all reasonable possib ilities of accused being innocent. Once the prosecu tion probab il ises the involve ment of the accused but the accused takes a f alse ple a, such f alse ple a can be taken as an addition al circu ms tance ag ainst the accused. T hough Article 20 (3) of the Cons titu tion incorporates the rule ag ainst self incrimin atio n, the scope and the content of the said rule does not requ ire the Cour t to ignore the conduct of the accused in not correctly disclosing the f acts with in his kno wledge. When the accused takes a f alse ple a about the f acts exclusively known to h im, such circu ms tance is a vital additional circu ms tance against the accused."
This Court would like to refer the judgment reported in 1985 SCC (cri) 150 in the case of State of U.P. Vs. M.K. Anthony. The relevant portion of the judgment reads as follows:
"10. While appreciating the evidence of a witness, the approach must be whe ther the ev idence of the witness re ad as a 73 whole appears to have a r ing of tru th.
Once th at impression is f ormed, it is undoubtedly necessary f or the court to scru tin ise the evidence more p articularly keep ing in vie w the def iciencies, drawb acks and inf ir mities poin ted out in the ev idence as a whole and evalu ate the m to f ind out whe ther it is against the general tenor of the ev idence given by the witness and whe ther the earlier evaluation of the evidence is sh aken as to render it un wo rthy of belief . Minor discrep anc ies on triv ial matte rs no t touching the core of the case, hypertechn ical approach by tak ing sentences torn out of context here or there f rom the evidence, attach ing importance to so me technic al error co mmitted by the investig ating of f icer not going to the root of the matter wo uld not ord inar ily per mit rejection of the evidence as a whole. If the cour t bef ore wh o m the witness gives evidence had the oppor tunity to f or m the opin ion about the general tenor of evidence given by the witne ss, the appellate court which had not this benef it will have to attach due we ight to the 74 appreciation of evidence by the tr ial court and unless there are reasons we ig hty and f ormidable it would not be proper to reject the evidence on the ground of minor variations or inf ir mities in the matter of tr iv ial details. Even honest and truthf ul witnesses may diff er in so me details unrelated to the main incident because po wer of observation, retentio n and reproduction dif f er with ind ividuals."
55. It is also important to note that in the 313 statement of the accused, he has not given any explanation. The main contention of the respondent's counsel in his arguments is that while recording the 313 statement of the accused, the interpreter was not given oath and hence the same is not valid. The said contention also cannot be accepted since an interpreter was provided to the accused to give answer to the 313 statement and his answer is totally denial that whatever the witnesses have deposed against him are all false. It has to be noted that when the incriminating evidence 75 was put to the accused and when the body was recovered at the instance of the accused and recoveries are made, he ought to have given his explanation and when he has not given any explanation under Section 313 of Cr.P.C. and the same is another link to the case of the prosecution to prove the case of the prosecution.
56. This Court would also like to reiterate the principles laid down in the judgment of the Hon'ble Apex Court in the case of Pattu Rajan Vs. State of Tamil Nadu reported in (2019) 2 SCC (Cri) 354, wherein it is held that the recovery and identification of the dead body and articles belonging to the deceased at the instance of the accused are not explained by the accused, links in the chain of circumstances firmly established against the accused. In the case on hand also, the recovery of the dead body was made at the instance of the accused. Further, the Hon'ble Apex Court held that if a confession is made by the accused 76 before the police and portion of the confession leads to recovery of any incriminating material, the said portion alone is admissible under Section 27 of the Evidence Act. In the case on hand also, the accused led the police as well as the panchas and in the presence of PW.19 Tahasildar and PW.22 doctor and in the presence of PWs.1 and 2 pancha witnesses, the body was exhumed and hence, the judgment of the Hon'ble Apex Court referred supra is aptly applicable to the case on hand.
57. The prosecution also relied upon the other circumstances that the mobile phone of the deceased was sold and the same was recovered from the shop of PW.6. PW.6 Rajasingh in his evidence he has deposed that MO.33 was seized at the instance of the accused. The same is also not discredited in the cross- examination of PW.6 and the recovery witness also supports the case of the prosecution that the same was recovered from the shop of PW.6. PW.14 has also 77 categorically deposed that he has seen the accused in the farm land of the deceased. He further deposed that he has purchased one sim card in his name and handed over the same to the deceased as per the instructions of the victim. The same sim card was left at the shop of the PW.6 by the accused and hence, it is clear that the accused not only handed over the mobile MO.33 to PW.6 and also he left the sim card at the shop of PW.6 and PW.14 reiterates the same and identifies him and says he was working with the victim and the victim only introduced him and got the sim to him.
58. Having taken note of both the oral and documentary evidence and also the photographs which have been taken by PW.21 throughout while exhumation of the body at the instance of the accused and prosecution witnesses who have been examined before the Court have supported the case of the prosecution including recovery of body and agricultural 78 equipments belonging to the victim and nothing is elicited in the cross-examination of these witnesses that they were having any enmity against this accused in the cross-examination of the witnesses, throughout while cross-examining the witnesses to falsely implicate the accused. The trial Court while considering the material available on record failed to take note of the fact that the body was recovered at the instance of the accused and there is no detail discussion with regard to the body was exhumed at the instance of the accused. The trial Court also failed to take note of Section 27 of the Evidence Act and when the fact has been discovered at the instance of the accused and when the body was recovered at the instance of the accused and the agricultural equipments belonging to the deceased were sold to several persons and the same was recovered at the instance of the accused and witnesses, who have purchased the same and some of the witnesses have acted as middlemen to sell the agricultural equipments 79 and they deposed before the Court that the accused has sold the agricultural equipments of the victim and the trial Court has failed to appreciate the evidence of the prosecution witnesses in a proper perspective.
59. It is also important to note that taking advantage of the victim was staying alone in the house and their family members were residing at Kerala and this accused was staying along with the deceased from October-2011 and he was having acquaintance with the family affairs of the victim. The witnesses have categorically deposed that this accused only told them that the victim went to Kerala and he has suffered paralysis and also he was taken to America for treatment and he passed away at America and his body was not brought to Kerala and it was cremated at America itself. It is also evident from the evidence of the prosecution that this accused pretended as a relative of the victim and tried to negotiate with the prospective 80 purchaser to sell the property of the deceased victim. The same is also spoken by the prosecution witnesses and in spite of the body was recovered at the instance of the accused and agricultural equipments which have been sold to the persons after committing the murder and the same were recovered at the instance of the accused and those witnesses who have been purchased the same have categorically deposed that the same was sold at the instance of the accused. In spite of all these materials available on record that the accused has committed the murder to make the wrongful gain taking the advantage of the loneliness of the aged victim who was away from the family members. The accused after committing the murder disposed of the body to screen the evidence to escape from the clutches of law. In spite of all these materials available on record, the trial Court has committed an error in coming to the conclusion that the prosecution has not proved the case taking note of the minor discrepancies in the evidence of the 81 prosecution witnesses and there was no any explanation on the part of the accused and the witnesses, who have been examined before the Court have categorically identified the accused that he was staying along with victim. The trial Court taking the answer elicited from the mouth of some of the witnesses that there were no any documentary evidence to prove that the accused was staying along with the victim, given the benefit of doubt in his favour. But the witnesses, who have been categorically deposed before the Court that they had found the accused in the house of the victim and also categorically deposed that after the victim was not found in the house of the victim, this accused was in the very house and made the statement before the witnesses that the victim was went to Kerala for taking treatment for his paralysis and also pretended that he was a relative of the deceased and made an attempt to sell the properties both movable as well as immovable properties, and when the witnesses who 82 have been examined before the Court have categorically deposed with regard to the very role of the accused and conduct of the accused and this Court has already pointed out that nothing is on record to show that these witnesses were having any enmity against the accused to falsely implicate him and it is also the fact that the victim is also a Keralian and the accused is also Keralian and none of the witnesses have any prior acquaintance with the accused and it is not elicited that they were having any enmity. The trial Court has committed an error in not appreciating the evidence in a right perspective. Instead of considering the minor discrepancies, exaggerated the same and magnified the same while coming to the conclusion that the prosecution has failed to prove the case against the accused.
60. Having considered the material available on record, the accused is liable to be punished for the 83 offences under Sections 302, 404, 419 and 201 of IPC since he has not only committed the murder and also screened the evidence by burying the body in an isolated place which belongs to the victim and also disposed the properties of the victim after committing the murder and tried to sell the property of the victim pretending that he is the relative of the victim and these are the materials which have not been considered by the trial Court. No doubt in an appeal against the acquittal, there must be a cogent evidence before the Court to reverse the findings of the trial Court. It is also important to note that the witnesses, who have been examined have supported the case of the prosecution except the minor discrepancies in their cross- examination and there is no material contradictions in the evidence of the prosecution witnesses either in respect of the exhumation of the body or in respect of the recovery of the agricultural equipments and also belongings of the victim and hence, it is a fit case to 84 reverse the findings of the trial Court. The trial Court has committed an error in not taking note of the fact that the murder has been committed only in order to make the wrongful gain and when the murder has been committed for wrongful gain, the Court ought to have taken much care and caution while appreciating the evidence available on record and the same has not been done which has resulted in miscarriage of justice and the same is nothing but allowing wrongdoer to escape from the clutches of the law.
61. In view of the discussions made above, this Court proceed to pass the following:
ORDER The appeal is allowed.
The impugned judgment dated 8th August, 2013 in S.C. No.96/2012 on the file of the Additional District and Sessions Judge, Fast Track Court, Sagar is hereby set aside.85
The accused is convicted for the offence punishable under Section 302 of IPC and sentenced to undergo simple imprisonment for life and also ordered to pay a fine of Rs.50,000/-. In case of default of payment of fine amount, he shall undergo simple imprisonment for a further period of six months.
The accused is also convicted for the offence punishable under Section 201 of IPC and sentenced to undergo simple imprisonment for a period of three years and also ordered to pay a fine of Rs.10,000/-. In case of default of payment of fine amount, he shall undergo simple imprisonment for a further period of two months.
The accused is also convicted for the offence punishable under Section 404 of IPC and sentenced to undergo simple imprisonment for a period of three years and also ordered to pay a fine of Rs.5,000/-. In case of default of payment of fine amount, he shall undergo simple imprisonment for a further period of two months. 86
The accused is also convicted for the offence punishable under Section 419 of IPC and sentenced to undergo simple imprisonment for a period of two years and also ordered to pay a fine of Rs.5,000/-. In case of default of payment of fine amount, he shall undergo simple imprisonment for a further period of two months.
The sentences shall run concurrently. The trial Court is directed to secure the presence of the accused before the Court and subject him to serve the sentence.
Sd/-
JUDGE Sd/-
JUDGE *Svh/sh