Sajid Balekhan Mujawar vs The State Of Kerala on 21 September, 2023

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Kerala High Court

Sajid Balekhan Mujawar vs The State Of Kerala on 21 September, 2023

The accused in S.C.No.137 of 2014 on the files of the Additional Sessions Court-I, Alappuzha are the appellants in these appeals. There were three accused in the said case and among them, the first accused is the appellant in Criminal Appeal No.617 of 2019, the second accused is the appellant in Criminal Appeal No.798 of 2019 and the third accused is the appellant in Criminal Appeal No.685 of 2019. Accused Nos. 1 and 2 stand convicted and sentenced for the offences punishable under Sections 120B, 449, 302 and 394 read with Section 34 of the Indian Penal Code (IPC) and accused No.3 stands convicted and sentenced for the offences punishable under Sections 120B, 302 and 394 IPC.

2. The body of one Durgesh, a native of Crl. Appeal No.617 of 2019 & con. cases -: 5 :- Maharashtra who was engaged in the business of converting 22 carat gold ornaments into 24 carat pure gold in one of the shop rooms in a commercial complex namely Sona Complex situated at Mullackal in Alappuzha District was found lying on the floor of his shop by one Fasal at about 10 p.m. on 05.11.2013. It is alleged that Fasal had gone to the shop of Durgesh then to obtain the pure gold purchased by him from Durgesh. The police officers and the friends and relatives of Durgesh who had gone to the scene on receiving information took Durgesh to the General Hospital, Alappuzha. It is alleged that Durgesh was brought dead to the hospital.

3. A crime was registered by Alappuzha North Police in connection with the death of Durgesh on the basis of the information furnished by Fasal and after investigation, a final report has been filed in the case against the accused alleging commission of offences punishable under Sections 120B, 449, 302 and 394 read with Section 34 IPC. The accusation in the case is that the third accused who was in inimical terms with Durgesh on account of business rivalry and jealousy hatched a criminal conspiracy in the house of the third accused with the first and second accused to cause the death Crl. Appeal No.617 of 2019 & con. cases -: 6 :- of Durgesh and commit robbery of the gold and money possessed by him; that in furtherance to the said criminal conspiracy, the third accused had shown to the first and second accused the shop of Durgesh, and on 05.11.2013, between 9.45 p.m. and 10.45 p.m., the first and second accused trespassed into the shop of Durgesh. It is alleged that the first accused thereupon caught hold of the neck of Durgesh from behind and when Durgesh inflicted a blow on the head of the first accused using an iron rod so as to come out of the hold of the first accused, the first accused pushed him down backwards and as a result, the head of Durgesh hit against an iron mould kept on the floor used for gold works, and Durgesh suffered an injury on his head above the left ear. It is also alleged that by the second accused caught hold of the legs of Durgesh and the first accused then smothered and strangulated him to death. It is also alleged that the first and second accused thereupon committed robbery of gold items weighing 747.800 grams and cash amounting Rs.5,60,460/- kept by Durgesh in his shop and concealed the same in the bag carried by the first accused.

4. On committal of the case for trial, the Court of Crl. Appeal No.617 of 2019 & con. cases -: 7 :- Session read over the charge framed against the accused. As the accused denied the charges, the prosecution examined as many as 26 witnesses as PW1 to PW26 and proved through them Exts.P1 to P35 documents. MOs 1 to 45 are the material objects in the case. Ext.D1 is a portion of the statement given by PW9 under Section 161 of the Code. On culmination of the evidence of the prosecution, the incriminating circumstances brought out in evidence were put to the accused as provided for under Section 313 of the Code of Criminal Procedure (the Code). The accused denied the same and maintained that they are innocent. In addition, the first accused filed a statement taking the stand that he has nothing to do with the crime; that he does not know the third accused; that he came to Kerala on a tour along with the second accused and he was taken into custody by the police on 5.11.2013 from Alappuzha town when he went out of the place where he was staying to purchase food. Similarly, the second accused filed a statement taking the stand that he also has nothing to do with the crime; that he came to Kerala on a tour along with the first accused; that as the first accused, who went out of the place where they were staying to purchase food at about 10 p.m. on 05.11.2013 did Crl. Appeal No.617 of 2019 & con. cases -: 8 :- not return, he went to Alappuzha North Police Station on the following day on receiving information that the first accused is detained there and that he was taken into custody by the police then. According to him, he was falsely implicated in the case as an accused. Likewise, the third accused filed a statement taking the stand that he has no connection whatsoever with the crime; that he does not know the first and second accused; that the deceased was a best friend of him and that he has helped him a lot in his business.

5. As the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. Two witnesses have been examined thereupon by the accused on their side as DWs 1 and 2. Exts.D2 and D3 are the documents proved by the accused on their side. Thereupon, on an appraisal of the materials on record, the Court of Session found the first and second accused guilty of the offences punishable under Sections 120B, 449, 302 and 394 read with Section 34 IPC and the third accused guilty of the offences punishable under Sections 120B, 302 and 394 IPC. The first and second accused were accordingly sentenced to undergo imprisonment Crl. Appeal No.617 of 2019 & con. cases -: 9 :- for life and to pay fine for Rs.2lakhs each for the offence punishable under Section 302 IPC, to undergo rigorous imprisonment for ten years and to pay fine for Rs.1 lakh each for the offence punishable under Section 394 IPC and to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- each for the offence punishable under Section 449 IPC. Similarly, the third accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.2 lakhs for the offence punishable under Section 302 read with Section 120B IPC. He was also sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh for the offence punishable under Section 394 read with Section 120B IPC. Default sentences were also imposed on the accused. The substantive sentences imposed on the accused were ordered to run concurrently. The accused are aggrieved by the said decision of the Court of Session and hence, these appeals.

6. Heard the learned counsel for the accused as also the learned Public Prosecutor.

7. We are not referring to the various submissions made by the learned counsel for the accused at Crl. Appeal No.617 of 2019 & con. cases -: 10 :- this stage, as we find it appropriate to refer to and ascertain the evidence let in by the prosecution before delving into the arguments advanced by the learned counsel for the accused.

8. The witness examined by the prosecution as PW1 is none other than Fasal who first found the body of Durgesh on the floor of his shop. PW1 is the first informant also. Ext.P1 is the First Information Statement. Ext.P1 was given by PW1 at about 11.30 p.m. on 05.11.2013. PW1 deposed that he runs a jewellery shop; that he used to purchase 24 carat gold from Durgesh; that on 05.11.2013 at about 11 a.m., he went to the shop of Durgesh and placed an order for supply of 24 carat gold for Rs.3,00,000/-; that though he wanted the gold ordered by him on the same day itself, Durgesh agreed to supply the same only on the following day; that nevertheless at about 9.45 p.m. on the same day, Durgesh informed him over phone that the gold ordered by him is ready and that he can come and collect the same from his shop. PW1 deposed that he went to the shop of Durgesh accordingly at about 10 p.m. on that day; that when he reached the shop of Durgesh, he found that though the shutter of the shop appeared to be closed, but not locked and there Crl. Appeal No.617 of 2019 & con. cases -: 11 :- was light inside; that though he called out Durgesh many a times by knocking on the shutter, there was no response and therefore, he lifted the shutter slightly and peeped into the shop. PW1 deposed that he then found the body of Durgesh lying on the floor of the shop and the first and second accused were standing beside the body. PW1 deposed that he also noticed blood stains then on the bodies of the first and second accused. It was deposed by PW1 that on being scared, he closed the shutter of the shop room and called Kishore, a friend of Durgesh and that Kishore reached the scene soon. It was deposed by PW1 that as suggested by Kishore, he called the police and by the time the police reached the scene, Kishore had called some of his friends also to the scene. PW1 deposed that the police and the people assembled at the scene thereupon lifted the shutter of the shop; that on lifting the shutter, it was found that the deceased was lying on his back with his head facing west and feet facing the east; that the first and second accused were standing in the north- western portion of the shop and that the first accused was holding a black bag. PW1 deposed that Durgesh was taken to the hospital thereupon in an ambulance and the first and Crl. Appeal No.617 of 2019 & con. cases -: 12 :- second accused were taken to the Police Station as directed by the Circle Inspector of Police who arrived at the scene in the meanwhile. PW1 identified in court the black bag carried by the first accused as also the shirt and pants worn by him at the relevant time as MO1, MO4 and MO3 respectively and the shirt and pants worn by the second accused as MO5 and MO2 respectively. The evidence tendered by PW1 was consistent with Ext.P1 statement given by him, and nothing was brought out in his cross-examination to discredit his evidence.

9. PW2 is one Kishore, who was called to the scene by PW1. PW2 is a goldsmith who hails from Maharashtra. PW2 was also running a shop in Sona Complex. PW2 deposed that PW1 had called him over phone at about 10 p.m. on 05.11.2013 and informed him that there is something wrong inside the shop of Durgesh and required him to come over there and that he went to the shop of Durgesh accordingly. PW2 narrated the sequence of events that took place thereafter on the same lines as deposed by PW1. In addition, PW2 deposed that he noticed an injury on the face of the first accused and that blood was oozing out from the said injury. PW2 also deposed that he noticed a bleeding injury on the Crl. Appeal No.617 of 2019 & con. cases -: 13 :- head of Durgesh as well. PW2 deposed that both him and PW1 then went to the police station; that while returning from the police station, he recalled that on the said day at about 11 a.m., he saw the first and second accused in the shop of the third accused in Sona Complex and also at the house of one Jayasree, where the third accused was residing, on the evening of previous day and where he used to send his children for tuition. PW2 also identified in court MOs 1 to 5. Even though a doubt is cast as to the reliability of the evidence tendered by PW2 that he saw the first and second accused at the shop of the third accused in Sona Complex in the morning hours of 05.11.2013, and on the evening of previous day at the house of Jayasree, inasmuch as the principle 'falsus in uno, falsus in omnibus' does not have any application in our country, we are of the view that the evidence tendered by PW2, insofar as it corroborates the evidence tendered by PW1, can certainly be accepted, as the said part of the evidence tendered by PW2 has not been discredited in any manner, whatsoever, in his cross-examination.

10. PW3, Nazeer is a person who runs a jewellery shop at Eramalloor. PW3 deposed that he is a social activist Crl. Appeal No.617 of 2019 & con. cases -: 14 :- also; that his jewellery is managed by his brother Noushad and that he has a brother called Nassar also, who is running a jewellery in the ground floor of Sona Complex. PW3 deposed that at about 8.45 p.m. on 05.11.2013, he reached the shop of his brother Nassar at Sona Complex; that while he was sitting there, Noushad and his another brother, Nawab also reached there, after closing the jewellery at Eramalloor; that Durgesh used to supply to them 24 carat gold; that Noushad and Nawab, after sometime, went to the shop of Durgesh for purchasing 24 carat gold and that he went home at about 9.30 p.m. after Noushad and Nawab returned to the shop of Nassar. PW3 deposed that while he was leaving the premises of Sona Complex, he heard Durgesh shouting to the security guard of Sona Complex not to close the shutter. PW3 deposed that at that time, he saw the first and second accused proceeding to the first floor of Sona Complex and when he enquired with the security guard about them, he was informed by the secutiy guard that they were proceeding to the shop of Durgesh. PW3 deposed that upon reaching home, he received a call from PW2 that some untoward incident happened in the shop of Durgesh and that he came back on the basis of that information to Sona Crl. Appeal No.617 of 2019 & con. cases -: 15 :- Complex. It was deposed by PW3 that upon reaching the shop of Durgesh, he witnessed a crowd in front of the shop including police and noticed that PW1 and PW2 had kept the shutter of the shop of Durgesh closed and that thereafter, all of them lifted the shutter together. On lifting the shutter, it was deposed by PW3 that he found the body of Durgesh lying on the floor and that the first and second accused were standing on either side of the body of Durgesh with an appearance of a scuffle that had taken place. PW3 also deposed that he found then a black bag with the first accused. PW3 also identified in court MOs 1 to 5, the black bag carried by the first accused and the dress worn by the first and second accused then. As in the case of PW2, PW3 also corroborated the evidence tendered by PW1 in full and the said part of the evidence has not been discredited by the accused in their cross-examination. Of course, as regards the position where the first and second accused were standing in the shop of Durgesh when the shutter of the shop was lifted, the evidence of PW1 and PW3 were not in harmony. Similarly, there was a trivial inconsistency in their evidence as regards the position of the black bag also. PW1 deposed that he found the accused Crl. Appeal No.617 of 2019 & con. cases -: 16 :- standing in the north-western side of the shop when the shutter was lifted, whereas the version of PW3 was that the first and second accused were standing on either side of the body. Similarly, PW3 who deposed that he found MO1 bag with the first accused, made a variation in his cross-examination as regards the same and deposed that MO1 bag was kept on the table. In all cases, there will be trivial inconsistencies in the evidence of witnesses due to errors in observation, errors of memory due to lapse of time or due to mental disposition, such as shock and horror at the time of occurrence and the law on the point is that minor inconsistencies which do not affect the core of the prosecution case shall not be a ground on which the evidence can be rejected in its entirety, if the evidence of the witness is otherwise credible and inspires confidence [See A. Shankar v. State of Karnataka, (2011) 6 SCC 279]. As we find that the evidence tendered by PW3 is credible and inspires confidence, we are of the view that the inconsistencies aforesaid shall not deter us from placing reliance on the same.

11. PW8 is also a goldsmith who hails from Maharashtra. He also runs a shop in Alappuzha. PW8 is one among the persons who reached the shop of Durgesh on Crl. Appeal No.617 of 2019 & con. cases -: 17 :- hearing the untoward incident. PW8 deposed that he was also present at the shop of Durgesh when its shutter was lifted. PW8 also gave a narration in his evidence as to the events that took place thereupon on similar lines as the evidence tendered by PWs 1, 2 and 3. PW8 also identified in court the bag carried by the first accused as also the dress worn by the first and second accused. PW4 is the uncle of the wife of the third accused. PW4 is also one among the persons who reached the shop of Durgesh on hearing the untoward incident and by the time he reached the shop, the shutter of the shop had already been lifted. PW4 also in his evidence gave a narration of the events that took place thereafter on lines similar to the evidence tendered by PW1, 2, 3 and 8. In addition, PW4 deposed that between 12 and 12.30 a.m. on the following day, he received a call from the third accused enquiring as to what happened in the shop of Durgesh and the third accused did not ask any further question when he narrated to him as to the occurrence. As in the case of PWs 1 to 3 and 8, the testimony aforesaid of the above witness was also not discredited in any manner by the accused in their cross-examination.

12. PW26 was the security guard of Sona Complex Crl. Appeal No.617 of 2019 & con. cases -: 18 :- during the relevant time. PW26 deposed that at about 9.30 p.m. on 05.11.2013, when he went to the first floor of the complex to close its shutter, he found Durgesh in his shop and that when he was about to close the shutter, Durgesh called out not to close the shutter as someone was coming to see him. PW26 also deposed that when he was coming down to the ground floor, he found the first and third accused going to the first floor. The evidence tendered by PW26 as regards the identity of the accused is not consistent with the prosecution case inasmuch as, going by the prosecution case, the third accused was not there at Sona Complex at 9.30 p.m. on 05.11.2013. It is however seen that the Public Prosecutor has not cross-examined PW26 after obtaining permission from the Court in the context of the said evidence. According to us, the aforesaid circumstance is not an impediment for the court to accept the credible part of the evidence of PW26.

13. PW9 who runs a stationary shop in Alappuzha town deposed that on 05.11.2013, the first and second accused came to his shop and purchased MO7 cellophane tape. PW9 also deposed that MOs 2 to 5 were the clothes worn by the first and second accused at that time. PW9 also Crl. Appeal No.617 of 2019 & con. cases -: 19 :- deposed that the first accused carried MO1 bag then and it was in that bag he kept MO7 cellophane tape purchased from him. Similarly, PW16 who was a salesman in a shop in Alappuzha town deposed that on 05.11.2013 at about 6 p.m., the first and second accused came to the shop and purchased MO6 series ropes. PW16 also deposed that MOs 2 to 5 were the clothes worn by the first and second accused at that time. PW16 also deposed that the first accused carried MO1 bag then and it was in that bag he kept MO6 series ropes purchased from him.

14. PW6 is Jayasree referred to by PW2 in his evidence as the landlord of the third accused. PW6 deposed that she had acquaintance with the third accused as she let out her house to the third accused; that she resides very close to the said house; that she saw the first and second accused on the evening hours of 04.11.2013 and on the morning hours of 05.11.2013 in the house let out to the third accused; that her attention was drawn to them as her dog was barking unusually on seeing them in the premises of the house of the third accused and that the third accused introduced the first and second accused to her as his friends who came from his Crl. Appeal No.617 of 2019 & con. cases -: 20 :- native place. PW13 is the wife of the deceased. PW13 deposed that she knew the third accused as a friend of her husband and that her husband had told her on various occasions that the third accused was jealous of his business. PW13 also deposed that as she was going to the house of the sister of her husband at Mohama in connection with Deepavali celebration and as there would be no one in the house on 05.11.2013, she went to the shop of her husband that day afternoon by about 2pm and entrusted her ornaments with him. PW13 identified those ornaments in court as MOs 10 to 16.

15. PW22 is the doctor who conducted the autopsy of the body of the deceased. Ext.P22 is the autopsy certificate. According to PW22, Durgesh died due to smothering and strangulation following head injury. It was deposed by PW22 that six ante-mortem injuries were noted on the body of the deceased at the time of autopsy. The ante-mortem injuries noted on the body of the deceased as deposed by PW22 are the following:

"1. Lacerated wound right side back of head 2x0.2 cm oblique upper inner end 6 cm right to midline 11 cm above hair margin lower outer end 7 cm above mastoid with internal scalp contusion underneath 6x3 cm. Crl. Appeal No.617 of 2019 & con. cases -: 21 :-

2. Multiple contused areas on the inner aspect of both lips enclosing a lacerated wound 0.5x0.2 cm tissue deep midline on the lower lip 3 cm below lip border and another on the inner aspect of upper jaw 0.4 cm below the lip border.

3. Multiple contused abraded areas on the front aspect of neck over an area 13x5 cm (left side) to 8 cm midline front extending from 2 cm right to midline to a point 3 cm below left ear lobule; 4 cm above sternal notch. Dissection of the neck was done in a bloodless field in layer. Multiple areas of blood infiltration seen varying from 0.5x0.3 to 1x1 cm seen on the both sides of neck with blood infiltrate around upper cornue of hyoid bone right side.

4. Contusion 3x1 cm, 2 cm below jaw border 4 cm left to midline.

5. Skin slippage with pale area underneath on the outer aspect of right arm and front of forearm 18x6 cm from a point 3 cm above elbow.

6. Brain showed contusion 6x4 cm left tempero parietal area with thin subarachnoid haemorrhage. Ventricles contained blood stained fluid."

Even though PW22 deposed that Durgesh died due to smothering and strangulation following head injury, PW22 also stated in his evidence that injury Nos.1 and 6 referred to above are sufficient in the ordinary course of nature to cause death Crl. Appeal No.617 of 2019 & con. cases -: 22 :- and that the said injuries are possible on account of a fall on MO23 iron mould. PW22 also stated in his evidence that injury No.2 shows smothering and application of force on the mouth and injury No.3 shows application of force on the neck area. In cross-examination, PW22 stated that injury No.1 could have been caused on account of other reasons as well. Similarly, PW22 stated that death cannot be caused by merely closing the mouth of a person and no injuries were found on the nose of the deceased. In that context, it was, however, clarified by PW22 that the victim must have lost consciousness on account of the head injury, and smothering and strangulation, in the circumstances, would have been possible without much force. Even though PW22 deposed that nail marks were not found on the neck of the deceased, it was also clarified by him that only if there is violent resistance, nail marks would appear.

16. PW14 who was the Assistant Surgeon attached to the General Hospital, Alappuzha deposed that on 06.11.2013 at about 3 am, he examined the first accused and sutured a lacerated wound found over the front parietal region of his scalp. PW14 deposed that the sutured wound was possible to be inflicted with MO22 iron rod. Crl. Appeal No.617 of 2019 & con. cases -: 23 :-

17. PW11 is the Scientific Officer attached to the District Crime Records Bureau, Kochi who inspected the scene of occurrence on 06.11.2013 and collected samples of blood stains from the walls of the cupboards and from the surface of the iron mould kept on the floor and also from the floor of the shop room. Ext.P13 is the report submitted by PW11 in this regard. PW11 identified in court the iron rod and the iron mould found at the scene as MO22 and MO23 respectively. PW12 is the Finger Print Expert who lifted chance finger prints from the scene of occurrence on 06.11.2013 and compared the same with the specimen finger prints of the accused. PW12 deposed that one of the chance finger prints lifted by him from the shop of Durgesh was identified as the left thumb impression of the first accused. Even though Ext.P14 communication issued by PW12 in this regard to the investigating officer is hit by Section 162 of the Code of Criminal Procedure, the evidence tendered by PW12 in this regard has not been discredited in any manner.

18. PW18 was an Assistant Sub Inspector of Police attached to the Alappuzha Police Control Room. PW18 deposed that on receiving information over phone as regards the occurrence, after informing the concerned police station, he Crl. Appeal No.617 of 2019 & con. cases -: 24 :- went to the scene with the police party, and by the time he reached the shop of Durgesh, there were a few people near the shop and that he along with others lifted the shutter of the shop. PW18 also gave a narration of the events that took place thereafter on lines with the evidence tendered by PWs 1 to 4 and 8. PW18 not only identified in court the first and second accused but also the clothes worn by them at the relevant time. PW24 was the police constable attached to Alappuzha District Police Headquarters and was part of the special investigation team constituted for the investigation of the subject crime. PW24 deposed that he is conversant with Hindi and it is he who translated the statements given by the accused and the witnesses to the investigating officer.

19. PW25 is the police officer who conducted the investigation in the case and laid the final report. PW25 deposed that he went to the scene on receiving information about the crime and by the time he reached the scene, the body of Durgesh was already taken to an ambulance and the first and second accused were taken into custody by the police. PW25 deposed that the first accused was carrying a black bag at that time and as the help of a translator was required to Crl. Appeal No.617 of 2019 & con. cases -: 25 :- interrogate them, they were kept under surveillance at Alappuzha North Police Station. PW25 deposed that he took over the investigation of the crime thereupon and prepared Ext.P5 scene mahazar and seized MO22 iron rod and MO23 iron mould. PW25 also deposed that he discovered and seized MOs 10 to 16 gold ornaments, MOs 17 to 20 gold ingots, MO21 series gold coins, currency notes amounting to Rs.5,60,460/-, MO7 cellophane tape and MO6 plastic rope which were concealed by the first accused in the bag carried by him based on the information furnished by him as per Ext.P9 mahazar. It was deposed that as per Ext.P9, MO1 bag in which the objects aforesaid were kept was also seized. Ext.P9(a) is the disclosure statement stated to have been made by the first accused in this regard. PW25 also deposed that he also seized on 07.11.2013 MOs 2 to 5 clothes worn by the first and second accused in terms of a mahazar prepared.

20. Having thus understood the nature and substance of the evidence let in by the prosecution, let us now refer to the arguments advanced by the learned counsel for the accused. As noted, there is no direct evidence in the case, and the prosecution has attempted to prove its case through Crl. Appeal No.617 of 2019 & con. cases -: 26 :- various circumstances. The main circumstance relied on by the prosecution to prove the guilt of the accused is the circumstance that the first and second accused were found with the body of the deceased when the body was first found by PW1. The first and foremost submission made by the learned counsel for the first accused was that the evidence tendered by PWs 1, 3 and 26 in this regard is not consistent, and the benefit of doubt created on account of the same shall be extended to the accused. It was argued by the learned counsel that the prosecution has miserably failed in establishing that a criminal conspiracy was hatched by the third accused with the first and second accused to cause the death of Durgesh. It was also argued by the learned counsel that in the absence of any evidence on the side of the prosecution to prove the criminal conspiracy alleged, it was obligatory on the part of the prosecution to prove the motive of the first accused to commit the murder of the deceased. According to the learned counsel, in the absence of any evidence to establish the motive on the part of the first accused, the impugned judgment convicting the first accused is unsustainable in law.

Crl. Appeal No.617 of 2019 & con. cases -: 27 :-

21. It was argued by the learned counsel for the second accused, placing reliance on various authorities dealing with the principles to be followed for establishing the guilt of the accused in a case on circumstantial evidence, that the circumstances established in the case do not prove the guilt of the second accused beyond reasonable doubt. The learned counsel relied on a few circumstances to contend that the same would cast a serious doubt as to the genuineness of the case proposed to be proved by the prosecution and the benefit of the said doubt shall certainly be extended to the accused. The circumstances relied on by the learned counsel are the following:

1. Even though the thumb impression of the first accused was found in the shop of the deceased, the thumb impression of the second accused was not found there.

2. In a case of this nature, it was obligatory for the investigating agency to collect and examine the call details of the deceased and the accused in order to ensure the correctness of the allegations levelled against the accused.

3. Even though it is alleged that the accused were taken into custody from the shop of Durgesh on the night of 05.11.2013 itself, their arrests were recorded only at 4:00 pm on the following day and there is no explanation for the said delay.

Crl. Appeal No.617 of 2019 & con. cases -: 28 :-

4. Inasmuch as the witnesses who have identified the first and second accused in court are persons who had no previous acquaintance with them, a test identification parade should have been conducted.

5. The brothers of PW3 being persons who have last visited Durgesh in his shop should have certainly been examined as witnesses in the case.

6. Had this been a case as alleged by the prosecution, there would have been serious injuries on the body of the deceased, the accused would have attempted to escape from the scene, there would have been some noise from the shop of the deceased at the time of the alleged occurrence, there would have been evidence of some damage to the articles kept there and the assailants would not have carried in their bag the entire gold and cash kept by Durgesh including ten rupee note, for it is not possible to collect the entire valuables from the shop in a situation of that nature. It was also argued by the learned counsel that there is no satisfactory evidence to show that the discovery and seizure of the gold, the gold ornaments and cash stated to have been held by Durgesh was based on the information furnished by the first accused and if that be so, no presumption can be made in terms of Section 114 of the Indian Evidence Act against the first accused. It was also argued by the learned counsel that there is no evidence to show that the murder and Crl. Appeal No.617 of 2019 & con. cases -: 29 :- robbery took place simultaneously and as such, even if it is found that the stolen articles have been discovered and seized from the first accused, the accused cannot be convicted for murder. The learned counsel relied on the decision of the Apex Court in Limbaji v. State of Maharashtra, (2001) 10 SCC 340, in support of the said contention. The last submission made by the learned counsel was that even assuming that the prosecution has established that the first and second accused caused the death of Durgesh and robbed him, the materials on record do not indicate that the culpable homicide committed by them would amount to murder punishable under Section 302 IPC. In order to substantiate the said contention, the learned counsel argued, placing reliance on a few passages from the books "Principles and Practice of Forensic Medicine"

by Dr.Umadathan and "MODI's Medical Jurisprudence and Toxicology" that the prosecution has not established beyond reasonable doubt that the cause of death of Durgesh was due to smothering and strangulation or that the death was due to the head injury. According to the learned counsel, having regard to the totality of the facts and circumstances, it could be seen that the death of Durgesh occurred as a result of an Crl. Appeal No.617 of 2019 & con. cases -: 30 :- accident and if not, due to some act which was not intended to cause his death. It was also argued by the learned counsel that in the absence of any evidence to show that the first and second accused intended to cause bodily injury to the deceased which is sufficient in the ordinary course of nature to cause his death, the accused can be convicted, even if the entire prosecution case is accepted, only for the offence punishable under Section 304 IPC.

22. It was argued by the learned counsel for the third accused that the only evidence let in by the prosecution to prove the criminal conspiracy is the evidence tendered by PW2, PW6 as also PW13. According to the learned counsel, the said evidence, even if accepted in toto, is not sufficient to prove the criminal conspiracy alleged against the third accused.

23. Having regard to the facts and circumstances of the case, the points that arise for consideration are (1) whether the prosecution has established that the death of Durgesh is a homicide, (2) whether the prosecution has established that the accused hatched a criminal conspiracy to cause the death of Durgesh and to commit robbery of the gold Crl. Appeal No.617 of 2019 & con. cases -: 31 :- and money possessed by him, (3) whether the prosecution has established that the first and second accused have caused the death of Durgesh and committed robbery of gold and money and (4) the relief, if any, the accused are entitled to.

24. Point (1): It was argued by the learned counsel for the second accused that what is expected from PW22, who conducted the autopsy, in a case of this nature was to give an opinion as to the cause of death, whereas PW22 has given multiple opinions as to the cause of death inasmuch as it is not clear from his evidence as to whether the death occurred on account of the head injury suffered by the victim or on account of smothering and strangulation. It was also argued by the learned counsel that had this been a case of strangulation, contusions and nail marks would have appeared on the neck. It was also argued by the learned counsel that since suffocation is brought about by occlusion of the mouth and nostrils either by hands or by other materials, there will be injuries on the body indicative of struggle. The point that was attempted to be established by the learned counsel by making the aforesaid submissions was that the death of the victim was not due to smothering and strangulation.

Crl. Appeal No.617 of 2019 & con. cases -: 32 :-

25. True, what was opined by PW22 was that the death of Durgesh was due to smothering and strangulation following head injury. Merely for the reason that PW22 has stated that death must have occurred due to smothering and strangulation following head injury, it cannot be said that the opinion as regards the death was not due to smothering and strangulation, especially since it was explained by PW22 in his evidence that injury No.2 shows smothering and application of force on the mouth and injury No.3 shows application of force on the neck area. Even though PW22 stated in cross- examination that the death cannot be caused merely by closing the mouth of a person and no injuries were found on the nose of the deceased, he clarified that the victim must have lost consciousness on account of the head injury, and smothering and strangulation, in the circumstances, would have been possible without much force. Similarly, though it was stated by PW22 that nail marks were not found on the neck of the deceased, it was clarified by him that only if there is violent resistance, nail marks would appear. On a careful appraisal of the evidence on record, we are unable to accept the arguments advanced by the learned counsel for the second Crl. Appeal No.617 of 2019 & con. cases -: 33 :- accused that the death of the victim was not due to smothering and strangulation. It is all the more so since it was deposed by PW22 that both lungs of the victim were severely congested and oedematous, which are indications of death due to strangulation [See MODI, Medical Jurisprudence and Toxicology (25th edition page 506)]. We, therefore, hold that the death of the victim was a homicide and the cause of the death was smothering and strangulation.

26. Points (2) and (3): As seen from the evidence let in by the prosecution, the only evidence adduced by the prosecution to prove the case of criminal conspiracy is the evidence let in by PW2 Kishore who runs a shop in Sona Complex, PW6 Jayasree in whose house the third accused was residing on rent and PW13 Nitha, the wife of Durgesh. The evidence tendered by PW13 in this regard is only that she knew the third accused as a friend of her husband and that her husband had told her on various occasions that the third accused was jealous of his business. The evidence tendered by PW2 in this regard is that while returning from the police station, he recalled that on the date of occurrence, at about 11 a.m., he saw the first and second accused in the shop of the Crl. Appeal No.617 of 2019 & con. cases -: 34 :- third accused in Sona Complex, and also at the house of one Jayasree where the third accused is residing, on the previous day evening where he used to send his children for tuition. If PW2 had seen the first and second accused on 05.11.2013 and on the previous day in the company of the third accused either in his shop or at the place where he used to reside, there is no reason why, in a case of this nature, he should not have revealed the said fact to PW1 or to the police while he was very much present at the police station with PW1 for giving the First Information Statement, after he had seen them with the body of Durgesh in the shop. The said circumstances would certainly create a doubt as to the correctness of that part of the evidence tendered by PW2. We are, therefore, of the view that it is not safe to place reliance on the said evidence of PW2 for the purpose of considering the point aforesaid, as the offence involved is one punishable with death, and the principle is that "fouler the crime, higher the proof." If the evidence tendered by PW2 and PW13 in the above regard is eschewed, what remains is the evidence tendered by PW6, the landlord of the third accused. As noted, PW6 deposed that she had acquaintance with the third accused as she let out her Crl. Appeal No.617 of 2019 & con. cases -: 35 :- house to the third accused; that she resides very close to the said house; that she saw the first and second accused on the evening hours of 04.11.2013 and on the morning hours of 05.11.2013 in the house let out to the third accused; that her attention was drawn to them as her dog was barking unusually on seeing them in the premises and that the third accused introduced the first and second accused to her as his friends who came from his native place. We have carefully perused the evidence tendered by PW6, and her evidence appeared to us to be real and natural, and we do not find any reason to disbelieve PW6, especially when nothing was brought out in her cross-examination to show that her testimony is not reliable or trustworthy. But the larger question is whether the said evidence alone is sufficient for the prosecution to establish criminal conspiracy in a case of this nature.

27. The elements of a criminal conspiracy have been stated to be (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish the object, ( c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the Crl. Appeal No.617 of 2019 & con. cases -: 36 :- means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act [See K. Hashim v. State of T.N., (2005) 1 SCC 237]. No doubt, a conspiracy is hatched in secrecy and it is difficult to adduce direct evidence for the same. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. According to us, from the evidence tendered by PW6 alone, all the necessary elements constituting criminal conspiracy in the nature of one attributed against the accused cannot be inferred. The motive attributed to the third accused for the criminal conspiracy is his business rivalry with the deceased and the jealousy he had towards the deceased. It has come out that there was no business rivalry at all between the deceased and the third accused as both of them were conducting businesses of different lines. Several witnesses have spoken about this fact. If that be so, it is difficult to believe that a person in the background of the third accused, would hatch a criminal conspiracy to cause the death of another merely on account of jealousy. Be that as it may, the first and second accused belong to the same State from where the third Crl. Appeal No.617 of 2019 & con. cases -: 37 :- accused also hails from. As such, merely for the reason that the first and second accused visited the third accused when they came to Kerala, it cannot be said that they had a common object to be accomplished and a plan embodying the means to accomplish the object. The possibility of the first and second accused visiting the third accused without disclosing their idea to cause the death of Durgesh, the possibility of the first and second accused visiting the third accused for collecting information for execution of their plan to cause the death of Durgesh etc. cannot be ruled out. We have come to this conclusion also for the reason that it has come out from the evidence of PW6 that the third accused has introduced the first and second accused to PW6 as his friends. If as a matter of fact, the first and second accused are persons who were brought by the third accused to cause the death of Durgesh and to rob him, the conduct on the part of the third accused in introducing the first and second accused to PW6 is not one expected from a person placed in the position of the third accused in the ordinary course of human nature. In the circumstances, in the absence of any other material to infer an agreement or understanding between the third accused on one Crl. Appeal No.617 of 2019 & con. cases -: 38 :- side and the first and second accused on the other side to cause the death of Durgesh or to rob him, we are of the view that the case of criminal conspiracy set out by the prosecution against the accused cannot be accepted. If that be so, the conviction of the third accused is unsustainable.

28. Let us now deal with the question whether the prosecution has established that the first and second accused have caused the death of Durgesh and committed robbery of gold and money held by him. As noted, there is no witness to the said occurrence, and the attempt on the part of the prosecution is to prove the occurrence through various circumstances. It is settled that in a case on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn must be fully established; that the circumstances should be of a conclusive nature and tendency; that the facts so established must be consistent only with the hypothesis of the guilt of the accused, that is to say, there should not exist any other hypothesis except the guilt of the accused; that the circumstances must exclude every possible hypothesis except the one to be proved and that there must be a chain of evidence so complete as to not leave any reasonable ground Crl. Appeal No.617 of 2019 & con. cases -: 39 :- for the conclusion consistent with the innocence of the accused and must show in all human probability, that it is the accused who must have done the act. Keeping in mind the aforesaid principles, let us now appreciate the evidence. As noted, the evidence tendered by PW9 and PW13 would show that the first and second accused purchased MO7 cellophane tape and MO6 plastic rope from their respective shops. It is seen that the said witnesses have been examined by the prosecution to prove that the first and second accused have therefore made some preparations for committing the crime. Although there is no evidence to show that MO7 cellophane tape and MO6 plastic rope have been used by the first and second accused for commission of the crime, it is established through the evidence of the said witnesses that MO1 bag was carried by the first accused when he went to the shops of the said witnesses to purchase the articles referred to above. In other words, the fact that MO1 bag is one that belongs to the first accused stands proved from the evidence tendered by the said witnesses.

29. As already found, PW1 Fasal, PW2 Kishore, PW3 Nazeer, PW4 Sandeep Sankar, PW8 Barath Yadav and PW18, the Sub Inspector of Police have testified in harmony Crl. Appeal No.617 of 2019 & con. cases -: 40 :- that when the police and the people assembled at the shop of Durgesh on hearing the untoward incident lifted the shutter of the shop, they found the first and second accused inside the shop beside the body of Durgesh. Among them, PW1 and PW18 also testified that the first accused was carrying MO1 bag. Similarly, PW2 testified in addition that they noticed a bleeding injury on the face of the first accused, which was corroborated by PW14, the doctor who sutured the wound on the face of the first accused. Likewise, PW3 testified in addition that the first and second accused were standing in the shop with the appearance of a scuffle that had taken place. Almost all the said witnesses have also testified that blood was found on the bodies of the first and second accused at the relevant time. Consistently, most of the said witnesses identified in court the clothes worn by the first and second accused also at the time when they were found at the shop of Durgesh. Ext.P18 report of the Forensic Science Laboratory establishes the fact that the blood stains found on the clothes worn by the first and second accused were of human origin. The said fact is not disputed by the first and the second accused, as the contention advanced by them in this regard was only that the Crl. Appeal No.617 of 2019 & con. cases -: 41 :- same by itself does not prove their guilt. Inasmuch as it is already found that the death of Durgesh was caused by smothering and strangulation, it is established that the accused are the persons who are first found with the dead body of the deceased.

30. The evidence of PW25 would show that based on Ext.P9(a) information furnished by the first accused, he discovered and seized MOs 10 to 16 gold ornaments, MO7 cellophane tape and MO6 plastic rope which were concealed by the first accused in MO1 bag carried by him. Even though the first accused has taken the stand that MO1 bag does not belong to him, in the light of the evidence tendered by PW9 and PW13, we do not find any merit in the said stand taken by the first accused. That apart, PW13 has identified MOs 10 to 16 seized from the first accused as the gold ornaments entrusted by her to Durgesh on the afternoon of the date of the occurrence. The main contention raised by the learned counsel for the first and second accused as regards the alleged discovery and seizure of gold and cash including MOs 10 to 16 ornaments is that insofar as it was known to the police at the time when the first and second accused were taken into Crl. Appeal No.617 of 2019 & con. cases -: 42 :- custody itself that the gold and cash held by Durgesh would be available with the first and second accused, the discovery and consequent seizure of the same would not fall under Section 27 of the Indian Evidence Act. He relied on the decisions Shinoj and Others v. State of Kerala, 2019 KHC 862 and Navaneethakrishnan v. State, (2018) 16 SCC 161, in support of the said contention. The gist of the decisions aforesaid is that a fact which was known to the police even prior to the information furnished by the accused in custody, if rediscovered on the basis of the information given by the accused, will not fall within Section 27 and there has to be a connecting link between the crime and the fact discovered. In the instant case, the fact stated to have been discovered is the fact that the first accused knew the place where MOs 10 to 16 ornaments belonging to PW13, which were entrusted to Durgesh by PW13 were kept, and that he took out and handed over those ornaments to the police from the place where he concealed the same. The accused have no case, therefore, that there is no connecting link between the crime and the fact discovered. The question that arises therefore is whether it could be said that PW25 knew that the gold and cash held by Crl. Appeal No.617 of 2019 & con. cases -: 43 :- Durgesh would be very much with the first accused, in the bag carried by him. Inasmuch as the first and second accused were found beside the body of Durgesh when the body was first found and since they were taken into custody then and there, as rightly contended by the learned counsel for the accused, it was possible for the police to infer that had there been a theft from the shop of Durgesh, the stolen articles would be available with the first and second accused. It is settled that in order to safeguard the interests of both sides in a criminal prosecution, the court must consider the quality of evidence adduced by the prosecution to establish the discovery of a fact based on the information received from a person accused of an offence before acting upon the same. If the evidence let in by the prosecution is appreciated in the above perspective, it is difficult to accept the case put forward by the prosecution that the discovery of the facts aforesaid is based on Ext.P9(a) statement, as it is only common sense that had there been a theft from the shop of Durgesh, the stolen articles would be available with the first and second accused. Section 27 of the Indian Evidence Act, according to us, is not intended to take care of such situations. Be that as it may, the said finding, Crl. Appeal No.617 of 2019 & con. cases -: 44 :- according to us, does not improve the case of the prosecution in any manner. Even if Ext.P9(a) is inadmissible in evidence, the conduct of the first accused in taking out from MO1 bag belonging to him, the ornaments which are proved to be that of the deceased, would be admissible under Section 8 of the Evidence Act, as, in terms of the said provision, the conduct of the accused is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact.

31. The finding aforesaid takes us to the crucial question namely, whether it could be found on the said evidence that it is the first and second accused who caused the death of Durgesh. A presumption of fact is a type of circumstantial evidence which, in the absence of direct evidence, becomes a valuable tool in the hands of the court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of the criminal law. Section 114 of the Indian Evidence Act which enables the court to presume existence of certain facts provides that "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and Crl. Appeal No.617 of 2019 & con. cases -: 45 :- public and private business, in their relation to the facts of the particular case." Illustration (a) to S.114 provides that the court may presume that a man, who is in possession of stolen goods soon after the theft is either the thief or he has received the goods knowing them to be stolen, unless he can account for his possession. The Indian Evidence Act defines the expression "may presume" thus:

"Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it."

Inasmuch as the expression "may presume" is used in Section 114, the Court may either regard the fact as proved, unless and until it is disproved, or call for proof of it. It has come out that large quantity of gold and cash were seized from the first and second accused. The said gold and cash seized from the first and second accused includes MOs 10 to 16 ornaments which belonged to the deceased and his wife. The accused have no satisfactory explanation to account for possession of the gold and cash seized from them. In other words, according to us, the presumption under Illustration (a) to Section 114 can be safely drawn. The question then is, applying the said Crl. Appeal No.617 of 2019 & con. cases -: 46 :- provision, whether the presumption should be that the accused stole the goods or later received them knowing them to be stolen. On an overall consideration of the facts and circumstances established, it is reasonable to presume that the accused committed theft of the gold and cash held by Durgesh in his shop.

32. The finding aforesaid takes us to the question whether having regard to the facts of the case on hand, the presumption should be extended to the perpetration of the offence of robbery or murder or both. Prima facie, such presumption does not come within the sweep of Illustration (a) of Section 114. However, the law on the point is that with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home, unless there is some evidence to show that the robbery and murder occurred at the same time, i.e., in the course of the same transaction. It was so held by the Apex Court in Limbaji and the various other decisions following the same. In other words, if there is evidence to show that the robbery and murder took place in the course of the same transaction, the accused in a case of this nature, could be convicted for robbery and murder as well Crl. Appeal No.617 of 2019 & con. cases -: 47 :- with the aid of the presumption under Section 114 of the Indian Evidence Act.

33. Reverting to the facts, as noted, it has come out from the evidence of PW26 that at about 9.30 p.m. on 05.11.2013, when PW26 went to the first floor of Sona Complex to close one of the shutters in the first floor of the said Complex, he found Durgesh in his shop and when he was about to close the shutter, Durgesh called out to him that someone is coming to see him and not to close the shutter. It was almost at or about the same time that Durgesh had informed PW1 over phone that the gold ordered by PW1 is ready and that he can come and collect the same from his shop. It is seen from the materials that it was almost around the same time that PW3 heard Durgesh calling out PW26 and telling him not to close the shutter and he had seen the first and second accused proceeding to the first floor of Sona Complex, while he was leaving its premises, after his brothers Noushad and Nawab who went to visit Durgesh in his shop, had come back. In other words, through the evidence of PW1, PW3 and PW26, it was established by the prosecution that Durgesh was very much alive till the first and second accused went to Crl. Appeal No.617 of 2019 & con. cases -: 48 :- the shop of Durgesh at Sona Complex by about 9.30 p.m. on the date of occurrence. Inasmuch as it is proved that the cause of death of Durgesh is smothering and strangulation, it can certainly be inferred that the death occurred within a few minutes thereafter. In other words, from the available materials, it can certainly be inferred that the first and second accused are the persons who went to the shop of Durgesh immediately preceding his death and who were found with the dead body. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In the context of criminal trials, the Apex Court has observed thus in Shambu Nath Mehra v. State of Ajmer, 1956 SCR 199 that Section 106 of the Indian Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. The relevant observation reads thus:

"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in Crl. Appeal No.617 of 2019 & con. cases -: 49 :- which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."

Placing reliance on the said judgment, in State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382, the Apex Court held that Section 106 would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused, by virtue of the special knowledge regarding such facts, offers any explanation which might drive the court to draw a different inference. In short, if a person is found seen with the deceased immediately before his death, he must offer an explanation as to how and when he parted the company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of the facts within his knowledge, he fails to discharge the burden cast upon him by Section 106 of the Indian Evidence Act. In short, in a case resting on Crl. Appeal No.617 of 2019 & con. cases -: 50 :- circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him [See State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254]. As noted, no explanation is forthcoming from the first and second accused as to how the death occurred. In the light of the discussion aforesaid, we are in agreement with the finding rendered by the Court of Session that the first and second accused have caused the death of Durgesh and committed robbery of the gold and money held by him.

34. Let us now deal with the arguments advanced by the learned counsel for the first and second accused which have not been dealt with by us hitherto in this judgment. The argument advanced by the learned counsel for the first accused remaining to be considered is that the prosecution has not established the motive of the accused to commit the crime. We do not find any merit at all in this argument, as we find that the prosecution has established beyond reasonable doubt that it is the first and second accused who caused the death of Durgesh. We have considered the various Crl. Appeal No.617 of 2019 & con. cases -: 51 :- circumstances pointed out by the learned counsel for the second accused as referred to in paragraph 21 and we are of the view that the same are not sufficient to hold that the chain of evidence adduced by the prosecution is not complete or that the same would leave any reasonable ground for the conclusion consistent with the innocence of the first and second accused. In the light of convincing evidence let in by PW22, the doctor who conducted the autopsy, that the cause of death of the victim was due to smothering and strangulation, there is absolutely no scope for any argument also that the alleged acts of the first and second accused would not amount to the offence punishable under Section 302 I.P.C, for, if death is caused by smothering and strangulation, the intention to cause the death can readily be inferred and the case would then fall under Clause (1) of Section 300.

35. In the light of the discussion aforesaid, Criminal Appeal Nos.617 of 2019 and 798 of 2019 are dismissed and Criminal Appeal No.685 of 2019 is allowed, setting aside the conviction of the third accused and the sentence passed against him. The third accused shall be released forthwith, if his continued detention is not required in connection with any Crl. Appeal No.617 of 2019 & con. cases -: 52 :- other case.

The registry is directed to communicate the above order forthwith to the concerned prison, where the appellant in Criminal Appeal No.685 of 2019 is undergoing incarceration.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

P.G.AJITHKUMAR, JUDGE.

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