Prasad vs State Of Kerala on 4 April, 2019

[Cites 10, Cited by 0]

Kerala High Court

Prasad vs State Of Kerala on 4 April, 2019

This appeal by the sole accused challenges the verdict passed by the 4th Additional Sessions Judge, Thrissur dated 26/02/2014 in S.C. No. 687 of 2006 arising out of Crime No. 111 of 2006 by which the appellant was found guilty under Sections 450, 302, 392 and 201 of the Indian Penal Code, 1860 ( for short 'IPC') and sentenced to undergo imprisonment for life and a fine of `10,000/- (Rupees Ten Thousand only) with a default stipulation of rigorous imprisonment of 10 months for offence under Section 302 of IPC, further sentenced to undergo rigorous imprisonment for five years and to pay a fine of `3,000/- (Rupees Three Thousand only) in default of which to undergo rigorous imprisonment for three months for offence under Section 450 of IPC, again sentenced to suffer rigorous imprisonment for seven years and to pay a fine of `5,000/- (Rupees Five Thousand only) on failure, to suffer rigorous imprisonment for five months for offence under Section 392 of IPC and also to undergo rigorous Crl.Appeal No.225/14 -:3:- imprisonment for three years and a fine of `2,000/- (Rupees Two Thousand only) with a default stipulation of two months rigorous imprisonment for offence under Section 201 of IPC. The substantive sentences were directed to run concurrently.

2. Prosecution alleges the following case against the appellant:-

The deceased Suseela was about 74 years at the time of her death and she was residing alone at her house bearing door number XIII/410 (XII/406) of Mattathore Panchayath situated at a place called Ombathunkal. The appellant herein was acquainted with the deceased as he fixed photos of deities for her. Appellant who was in need of money had, on 06/06/2006, with the intention to kill and rob Suseela, after sufficient preparation by keeping a packet of chilli powder and a metal cutter, committed trespass into her house sometime in between 5.00 P.M. and 06.45 P.M. The appellant held her by covering her nose and mouth with his hands and smothered her to death. He removed her two gold bangles using the cutter which he had brought and also a pair of ear studs worn by her which together weigh 21/4 sovereigns.

Thereafter, he sprinkled chilli powder over her body and Crl.Appeal No.225/14 -:4:- surroundings with a view to cause disappearance of evidence against him and to distract others from tracking him. He escaped from the house with the robbed gold ornaments.

3. Prosecution examined PW1 to PW35 as witnesses, marked Exts.P1 to P25 documents and identified material objects MO1 to MO7. Exts.D1 to D7 contradictions were brought out in evidence during cross-examination of the prosecution witnesses. During 313 examination, the appellant denied all evidence appearing against him and he pleaded innocence. No defence evidence was adduced.

4. Learned counsel appearing for and on behalf of the appellant Smt.M.R.Jayalatha argued that the appellant is innocent. He is falsely implicated in the crime by the investigating agency. There is no legal evidence to implicate the appellant to the crime. Case rests on circumstantial evidence alone. Prosecution did not bring any legal evidence to prove the involvement of the appellant in the crime. Alleged last seen together theory is not proved. Recovery of so-called ornaments of the deceased, allegedly at the instance of the appellant, is a planted one. There is evidence to the effect that there was some Crl.Appeal No.225/14 -:5:- issues between the deceased and other relatives regarding sharing of property. Admittedly, another young man, a relative, was a frequent visitor to the deceased. No investigation is done in that direction. Finger print evidence is fabricated as the materials collected from the place of occurrence were sent to Court only after the arrest of the appellant, after much delay. From which article, the finger prints were collected is not brought specifically in evidence. Court below could have convinced itself easily that the case is a concocted one. Trial Court went wrong in its present conclusion of finding the appellant guilty and hence she prayed for an acquittal extending benefit of doubt.

5. In reply, the learned Senior Public Prosecutor Sri.K.B.Udayakumar argued that the prosecution adduced ample evidence to the satisfaction of the Court below based on which the appellant was found guilty and sentenced. The appellant herein was last seen together with the deceased on the date of incident within a few hours of her death. Based on the disclosure statement of the appellant, MO1 and MO2 series ornaments belonging to the deceased were recovered. Medical, scientific and other evidence conclusively prove the guilt of the appellant Crl.Appeal No.225/14 -:6:- beyond the shadow of reasonable doubt and the trial Court is justified in its conclusion. He sought to dismiss the appeal.

6. Admittedly, there is no eye-witness to the incident. Prosecution relies on circumstantial evidence to prove the guilt of the appellant. The question to be decided is whether the trial Court was justified in convicting the appellant in this case for yhe above offences in the backdrop of the evidence available.

7. There is no dispute to the fact that Suseela met with a homicidal death. Oral evidence of PW1, PW2 and the family members of the deceased read with Ext.P2 inquest report and Ext.P14 post-mortem certificate issued by PW30 the then Lecturer in Forensic Science and Police Surgeon, Medical College Hospital would help us to conclude the same. PW30 noticed red chilli powder over the face on either side, front of neck, front of upper part of chest and abdomen along the midline, over the umbilicus and thigh and upper part of right leg. He deposed that the following ante-mortem injuries were noted by him on the corpse of Suseela:

1. Nail mark 0.4x0.2cm over the right cheek, inner end 5cm outer to midline and 5cm below the right eye brow.

Crl.Appeal No.225/14 -:7:-

2. Nail mark 0.5x0.2cm over right side of face with the concavity towards the midline, upper end 3cm outer to midline and 7.5cm below eye brow.

3. Nail mark, 0.6x0.2cm over the right side of face with the concavity downwards towards the midline, inner end 7cm below eyebrow and 4cm outer to midline.

4. Superficial laceration 3x0.5cm transverse over the right side of face inner end 4.5cm outer to midline and 8cm below eye brow.

5. Linear abrasion 0.5x0.3cm over the left ala of nose, inner end 3 cm outer to the midline and 0.2cm above the tip of nose.

6. Abrasion 0.2x0.1cm over the left side of chin, 1.5cm below jaw margin.

7. Abrasion 0.3x0.2cm in front of chin 3cm below lip margin at midline.

8. Abrasion 0.1x0.1cm over the right side of chin, 2cm outer to midline and 3cm below the lip margin.

9. Abrasion 0.2x0.2cm over the right side of chin, 4cm below lip margin and 1.5cm outer to midline.

10. Abrasion 0.5x0.5cm over the under aspect of right side of chin, 0.5cm below jaw margin and 2.5cm outer to midline.

11. Abrasion 1.2x0.8cm over the under aspect of left side of chin 4cm outer to midline and 1.5cm below jaw margin.

12. Linear abrasion 0.8x0.2cm over the back of pinna of right ear lobe, 2cm above the lower margin.

13. Contusion 2x0.7x0.3cm transverse across the midline on inner aspect upper lip, lower margin 2cm above the mucocutaneous junction of upper lip.

14. Abrasion 1x0.3cm vertical in front of left leg, 10cm Crl.Appeal No.225/14 -:8:- above ankle.

15. Contusion 1x0.8x0.5cm on right lateral border of tongue, 2.5cm away from the tip.

16. Contusion of left temporalis muscle."

He opined that the death of the victim was due to smothering. The probable time of death was deposed to as between 6 to 18 hours prior to postmortem examination.

8. PW1 is a neighbour of the deceased and she gave Ext.P1 FIS based on which Ext.P16 FIR was registered by the police. She identified MO1 and MO2 as ornaments usually found to be worn by the deceased and on the corpse of Suseela, those ornaments were not found. She raised suspicion about the death of Suseela.

9. PW2 is the mother of PW1 and she deposed in tune with PW1. On the date of incident, before Suseela was found dead, a young man was found taking tea from her house. It is her version that when enquired about him, the deceased told her that he had come to fix photograph. She identified the appellant in Court. She also identified MO1 and MO2.

10. PW3 is the son of the deceased. He identified MO1 to MO3 and also identified the appellant as the son of the younger Crl.Appeal No.225/14 -:9:- brother of the husband of his eldest sister. He stated that his mother was residing alone at the place of occurrence.

11. PW4 deposed that on 06/06/2006 at about 03.00 P.M, while coming home, he had seen a Hero Honda Passion motorcycle in front of the house of the deceased. He took his cycle from his house and went to the house of his friend Jini to go with him to take bath in temple pond nearby. He saw the motorcycle in front of the house of the deceased on his way to Jini's house in his cycle while passing the house of the deceased. He saw the motorcycle there while coming back with Jini on his cycle. It is his version that when he looked in, he saw the appellant sitting on a chair in the house of the deceased. He also stated that he did not see the motorcycle while returning home after taking bath.

12. PW5 is the daughter of the deceased. Appellant is the nephew of her husband. She deposed that the appellant was working with her son Sudhi (PW7) who was running a barbershop. She noticed that the ornaments of her mother was missing at the time of seeing her dead body. She identified in Court both the ornaments and the appellant.

Crl.Appeal No.225/14

-:10:-

13. PW6 is a Panchayath Member. She is an attestor to Ext.P2 inquest report prepared by PW34. She deposed that the inquest was conducted by PW34 on 07/06/2006 from 09.00 A.M.

14. PW7 Sudhi is the grandson of the deceased. He was running a barbershop at the place called Eravimangalam. Appellant is the son of the youngest brother of his father and was working in his shop. It is the version of PW7 that the appellant used to do photograph lamination work, pasting stickers on vehicles and drawing. According to him, the appellant personally knew the deceased. Appellant had told him that he had done photo lamination work for the deceased. Deceased had also told him that the appellant had done some work at her residence. The appellant was not punctual in attending his work in the shop. On the date of incident, by lunch time, the appellant had left the shop and thereafter did not turn up. According to him, the appellant had financial liabilities. Appellant used to ride motorcycle of PW24 Raveendran who is the son of PW7's aunt. The bike was bought for the son of PW24 Rajeevan, but since he was abroad, the same was used by the appellant.

15. PW13 deposed that he had been working as President Crl.Appeal No.225/14 -:11:- of Barbers' Association for 5 to 6 years and during that time the appellant had taken a loan of `15,000/- from the Association. PW15 also deposed that the appellant had borrowed an amount of `20,000/- from him and did not repay. PW16 also stated that the appellant had borrowed `10,000/- from him and his father returned the same in 2004. PW18 also deposed that the appellant had pledged gold with him and he had to give back `5,000/- to him in connection with that.

16. PW8, PW11, PW12 and PW17 turned hostile to the prosecution.

17. PW9 deposed that he is a resident of Poochunnippadam. He is doing purifying work of silver and gold. He used to purchase gold from known persons. On 06/06/2006, the appellant had come to his shop in the evening for selling gold ornaments. It is his version that the appellant had a packet with him which contained two bangles and a pair of ear studs. PW9 refused to buy as he did not know the appellant.

18. PW10 was conducting a grocery shop at Alagappa Nagar. He deposed that in June, 2006, the appellant had come to his shop and bought a packet of chilli powder with brand name Crl.Appeal No.225/14 -:12:- 'Sreelakshmi chilli powder'. One Satheesan was the salesman in the shop at that time. The reason for his memory of this particular person's purchase is that at that time he alone was there to buy in the shop.

19. PW19 is an attestor to Ext.P4 scene mahazar prepared by police on 07/06/2006. PW20 is an attestor to Ext.P5 mahazar prepared by the police for the recovery of MO1 bangles and MO2 ear-studs of the deceased. PW22 deposed that he signed in Ext.P6 mahazar prepared at the rented house of the appellant for the seizure of shirt and pants produced by the accused to the police. PW21 stated that he signed on Ext.P6 without knowing the contents of it. PW23 identified MO5 series rain coat. He deposed that the appellant had borrowed the same from him in 2006. He is an attestor to Ext.P8 mahazar for the seizure of MO5. PW24 deposed that he is the owner of motorcycle bearing number KL- 08 AB 6295 and it was bought for his son who was abroad. The said bike was used by the appellant herein during the relevant time. He is an attesting witness to Ext.P9 mahazar prepared at the time of seizure of bike by the police.

20. PW25 is the Doctor who examined the appellant on Crl.Appeal No.225/14 -:13:- 18/06/2006 at the request of police and issued Ext.P10 certificate. PW26 is the police photographer through whom MO6 CD and Ext.P11 series photographs of chance finger prints taken from the scene and that of specimen finger print provided from the Finger Print Bureau were marked.

21. PW27 Gopakumar was the Tester Inspector in Finger Print Bureau, Thrissur. He deposed that he developed the chance finger prints from the scene of occurrence on the request of the C.I. of Police. PW26 Yogi helped to take photographs of the chance finger prints developed. Chance finger prints were developed by the Assistant from the scene of occurrence from the articles which might have been handled by the assailant. He deposed that he entrusted the chance finger prints so gathered to the Finger Print Expert in his office. Ext.P11 chance finger print is marked through him. PW28 Sukumaran is the Finger print expert working in Single Digit Finger Print Bureau, Thrissur. He compared Ext.P11 series finger prints and issued Ext.P12 report regarding the said comparison. He found that the chance finger print marked as 'VI' was identical with the left index finger impression of the appellant.

Crl.Appeal No.225/14

-:14:-

22. PW29 Laly is the then Scientific Assistant working in DCRB, Thrissur. She deposed that on 07/06/2006, she had gone to the scene of crime, inspected the scene and took cellophane pressings, gathered the red coloured powder found on the body of the deceased and in the scene and they were entrusted to the investigating officer. Ext.P13 is the report for the same.

23. PW30 is the Doctor who conducted autopsy of the deceased and he issued Ext.P14 post-mortem certificate. PW31 is the Special Village Officer of Mattathur who prepared Ext.P15 scene plan. PW32 who was a police constable is an attestor to Exts.P5, P8 and P9 mahazars. PW33 is the S.I. of Police, Vellikulangara who registered Ext.P16 FIR based on Ext.P1 FIS given by PW1. PW34 conducted the investigation. He questioned the witnesses, prepared Ext.P2 inquest report on 07/06/2006 morning and seized clothes found on the body of the deceased, brass ring, gold ring, saffron double dhothi, pillow, black beaded chain, knife with black handle, an empty plastic cover with printing 'Sreelakshmi Chilli Powder' and materials gathered by the scientific assistant from the body of the victim and from the scene. Ext.P15 is the property list prepared for the same. On the Crl.Appeal No.225/14 -:15:- same day at 12.30 P.M., Ext.P4 scene mahazar was prepared. He seized two note books with telephone numbers, a purse, a long gold chain, two gold rings, a pair of ear-studs with white stones, spectacle box and an amount of `7,430/- found in the room. The appellant was arrested on 17/06/2006 at 03.00 P.M. Ext.P19 is the arrest memo and Ext.P20 is the arrest intimation. Based on the disclosure statement of the appellant, MO1 and MO2 series of bangles and ear-studs were allegedly recovered as per Ext.P5 mahazar. On the basis of the information received from the appellant, PW34 on 18/06/2006 at 11.30 A.M., recovered dress of the appellant at the time of alleged commission of offence as per Ext.P6 mahazar. Ext.P20 is the report adding the full name and complete address of the accused/appellant. As per Ext.P8 mahazar, MO5 series rain coats produced by PW23 were seized. Seizure of motorcycle having number KL-08 AB 6295 was effected as per Ext.P9 mahazar. Exts.P21 and P22 are the mahazars prepared for the seizure of video CDs and photographs respectively. Ext.P23 is the forwarding note for sending materials gathered at the time of inquest and preparation of scene plan. Ext.P24 is report received from the Forensic Science Laboratory. Crl.Appeal No.225/14 -:16:- Ext.P25 series are the property lists. PW34 identified MO3 series, MO4 and MO7 series items seized as per scene mahazar. PW35 completed the investigation and laid the charge-sheet.

24. Learned Sessions Judge based his finding upon the following circumstances which, according to him, are proved by the prosecution beyond reasonable doubt, and they form a complete chain which unerringly points to the guilt of the appellant and excludes his innocence:

(I) The deceased was residing alone in her house.

(II)She was found dead by PW1 and PW2 in the evening on 06/06/2006. Injuries were present on the corpse and chilli powder was found sprinkled on and around the body of the deceased. The death was homicidal.

(III) PW24 Raveendran deposed that he owns a Hero Honda Passion motorcycle having black with red and violet band colour which was used by the appellant herein as his son was abroad. PW23 also stated that the appellant used to ride Hero Honda Passion bike and used to borrow his rain coat as well. Police seized the said bike from the house of Ambika where the appellant was staying for rent for which Crl.Appeal No.225/14 -:17:- PW21 a neighbour is a witness.

(IV) PW4 deposed that on 06/06/2006 in the afternoon after 03.00 P.M, on his way to temple pond for taking bath in his bicycle with his friend, he had seen the appellant herein sitting inside the house of the deceased. He noticed a blue Hero Honda Passion motorcycle parked in front of the house of the deceased. The bike was not there by the time they came back. His statement was recorded by the police on 07/06/2006.

(V) On 05/06/2006 in the afternoon, PW2 found the appellant in the house of the deceased.

(VI) PW7 who is the cousin of the appellant deposed that the accused used to do photo lamination work and he was told by both the appellant and the deceased that the appellant had gone for photo lamination work in the house of the deceased. Appellant had prior acquaintance with the deceased and it was possible for him to have an easy entry into the house with permission of the deceased. (VII) PW7 deposed that on 06/06/2006, the appellant who was his co-worker had left the shop in the afternoon and he Crl.Appeal No.225/14 -:18:- never came back to the work place.

(VIII) The appellant was under debt trap. He was in need of money and was a spendthrift.

(IX) MO1 series gold bangles and MO2 series ear studs were found missing from the body of the deceased.

(X) According to PW9, on 06/06/2006 in the evening, the appellant approached him offering gold ornaments for sale. He refused because he had no prior acquaintance with the appellant.

(XI) PW10 deposed that in June, 2006 at noon time, the appellant had come to his grocery shop in a motor cycle and purchased chilli powder with brand name 'Sreelakshmi chilli powder'. Appellant was in a hurry. He was the sole customer at that time and he left the place in haste.

(XII) PW25 noted the following injuries on the accused/appellant as he was produced before him for examination on 18/06/2006 by the police after his arrest on 17/06/2006 at 03.00 P.M:

"1. Healing liner abrasion 0.5x0.3 cm on back of left hand upper end 6 cm below wrist over the 4 th Crl.Appeal No.225/14 -:19:- metacarpal bone.

2. Healing abrasion 0.4x0.3 cm on back of right thumb, lower end 3 cm above tip.

3. Healing abrasion 0.3x0.3 cm n inner aspect of left forearm, upper end 10 cm below elbow. All these injuries (1 to 3) were without scab and showed centre pallor with epithelisation at the periphery."

(XIII) Age of the injuries deposed to by PW25 is 10 days. He opined that such defensive injuries could be caused by the victim during the act of smothering. The appellant had no explanation as to how he sustained injuries deposed to by PW25.

(XIV) Evidence of PW5 shows that MO1 bangles were worn by her mother and that it was tight fitting to the arm of the deceased.

(XV) Based on the confession statement of the appellant, PW34 recovered MO1 and MO2 ornaments wrapped in a paper and kept in a plastic cover, from under the roof sheet of the urinal annexed to the latrine situated by the side of the marriage hall near Thiruvannikkavu temple for which Ext.P5 is the mahazar and PW20 is the attestor. MO1 bangles were found cut.

Crl.Appeal No.225/14

-:20:- (XVI) Pants and shirt of the appellant were seized from his rented house by PW34 through Ext.P6 mahazar. It was sent for FSL examination vide Ext.P23 requisition and Ext.P24 is the report. Chilli powder was detected in the shirt. (XVII) Cellophane pressings taken from the right hand of the deceased had synthetic fibres similar to the fibres in the pants and shirt of the appellant which were sent for FSL examination.

(XVIII) PW28 deposed that on comparison of the chance finger prints developed from the scene of crime with the specimen finger prints gathered from the appellant, he could find that one chance print marked as VI was identical with the left index finger impression of the appellant.

25. Learned counsel vehemently argued that the finger print evidence and other scientific evidence particularly cellophane pressings adduced by the prosecution cannot even be looked into as it is fabricated. The properties were produced in Court after the arrest of the appellant. Nothing is there in evidence to show that the said cellophane pressings were collected or that be seized by the investigating officer from the Crl.Appeal No.225/14 -:21:- corpse of the victim. It is not shown to be labelled or sealed. From where chance finger prints were taken is also not clear. It can be seen that it is not taken from the body of the victim or any weapon used for the commission of the offence. She relied on the decision of the Apex Court in Pantangi Balarama Venkata Ganesh and Ors. v. State of A.P. and Ors. [(2009) 11 SCC 607] to emphasize her argument that the use of the word 'similar' and 'identical' by experts has much relevance in this case and mere similarity cannot lead to the irresistible conclusion that the fibres found on the hands of the appellant is that from the dress of the deceased. In the case on hand, the evidence shows only similar fibres and not identical.

26. In our assessment, the above contention is forceful and it needs a careful appreciation. If the above-said evidence is found to be fabricated or unreliable, that will bring serious set back to the prosecution case. We have gone through the evidence in detail particularly to ascertain the factual position regarding the aspect whether any manipulation had occurred in collecting and despatching fingerprints and cellophane pressings. The following aspects are revealed as proved background while Crl.Appeal No.225/14 -:22:- looking into the scientific evidence including cellophane pressings:

(i) The appellant was arrested on 17/06/2006 at 03.00 P.M.

(ii) Ext.P17 series of property lists without date, signed by PW34 were produced before Court on 21/06/2006 and 22/06/2006.

(iii) Ext.P2 inquest was prepared on 07/06/2006 at 09.00 A.M. by PW34 and it was sent to Court on 07/06/2006 itself. In Ext.P2, the names of finger print expert Gopakumar (PW27) and Scientific Assistant Laly (PW29) were mentioned. It is also mentioned that an empty packet of chilli powder had been seized after examination by the finger print expert.

(iv) Ext.P4 scene mahazar was prepared on 07/06/2006 at 12.30 P.M. by PW34 and it had reached in Court on the same day.

In Ext.P4, there is mention about glass tumbler near the wash basin in the house and it was seized after examination for finger prints.

(v) PW27 deposed that he visited the scene of crime and developed chance finger prints. According to PW26, the same Crl.Appeal No.225/14 -:23:- was photographed by him. PW27 entrusted the said chance finger prints to the fingerprint expert Sukumaran (PW28) in his office.

(vi) PW29 Laly deposed that she inspected the scene of occurrence on 07/06/2006. She took cellophane pressings from the hands of the victim and gathered red coloured powder found on the body of the deceased and around the corpse and entrusted them to PW34. Ext.P13 is the report prepared by her for the same.

(vii) Ext.P6 is the seizure mahazar prepared while taking into custody the shirt and pants of the appellant on 18/06/2006.

27. Coming to the admissibility of fingerprint evidence, it is in evidence that the appellant visited the house on earlier occasions also. Even on the previous day of the occurrence, he was present there. He is found by witnesses taking tea. So, availability of some chance fingerprints of the appellant from the utensils over there need not necessarily incriminate him. Also, it can be seen that there is no case for the prosecution that the fingerprints were developed from any weapon of offence or from the body or dress of the deceased. Being so, availability of fingerprint from utensils like glass tumbler, telephone receiver, Crl.Appeal No.225/14 -:24:- bottles etc. is not of much use for prosecution case, especially since it is proved that the appellant was present in the house on the previous day also. Benefit goes to the appellant's favour as far as this piece of evidence is concerned.

28. As far as the evidence of cellophane pressings are concerned, the situation is different. It is seen that the appellant was arrested by the police 10 days after Ext.P2 inquest report and Ext.P4 scene mahazar reached Court. It is true that the articles were not produced before Court prior to the arrest of the appellant. But it can be seen that Exts.P2 and P4 were prepared at a time when the appellant herein was not even suspected to be involved in the crime. Producing the seized properties in Court without delay or atleast before the arrest of the appellant assumes much importance as far as the credibility of collection of scientific evidence is concerned. In the facts and circumstances of this case, we don't think that the delay resulted in any manipulation. No evidence is forthcoming to that effect. Appellant does not have a case that he was forced by the investigating agency to touch on any of the seized article before or after his arrest. That being the case, the scientific evidence adduced by Crl.Appeal No.225/14 -:25:- the prosecution is not to be brushed aside completely as fabricated. Hence, the collection of cellophane pressings by PW29 is proper and we hold it to be an evidence admissible in the light of depositions of PW29 and PW34 coupled with Exts.P2, P3 and Ext.P13.

29. Item nos.2(a) and 2(b) in Ext.P24 report is shown to be the cellophane pressings taken from right as well as left hand of the deceased involved in Crime No. 111/06 of Vellikulangara P.S. Item no.5 is shown as a grey coloured pant and item no.6 is a full sleeve shirt with black, yellowish brown, greyish brown and cream coloured check design allegedly seized as per Ext.P6 which belongs to the appellant.

"DETAILS OF EXAMINATION

1. Examination for fibers.

Items 2(a), 2(b), 5 and 6 were examined for fibers using various microscopes.

Fibers were teased from items 5 and 6 and examined under the microscopes. Item No.5 contained grey coloured synthetic fibers. Item No.6 contained brownish black, yellowish brown greyish brown and cream coloured synthetic fibers.

The cellophane tapes in items 2(a) and 2(b) were cut into pieces convenient for examination under microscope. These were then subjected to microscopic Crl.Appeal No.225/14 -:26:- examination and the following materials were detected.

         (1)     Particles of dirt.
         (2)     Epithelial cells.
         (3)     Grey coloured synthetic fibers similar to the fibers
         of the pants in item 5,
         (4)     Brownish black, yellowish brown and cream

coloured synthetic fibers similar to the fibers of the shirt in item 6.

(5) Fragments of chilly pod and seed.

(6) Minute fragments of hair.

2. Examination of nail clippings.

The nail clippings in item No.4(a) were examined under the microscope to detect foreign tissues and fibers available if any. Only dirt was detected as foreign materials in item No.4(a). Foreign tissues and fibers were not detected in the nail clippings in item 4(a).

3. Comparison of Hair.

The hairs detected in the cellophane tapes in items 2(a) and 2(b) were minute fragments and hence were found to be unsuitable for comparison with the sample of hairs in item No.4(b).

4. Examination for Chilly powder.

Items 1, 3(a), 3(b), 4(a), 5 and 6 were forwarded to the Chemistry division of this laboratory for the examination for Chilly powder. Report from the Scientific Assistant (Chemistry) is attached in original.

RESULTS OF EXAMINATION

1. The cellophane tapes in items 2(a) and 2(b) contain fibers similar to those in items 5 and 6.

2. Only dirt was detected as foreign materials in the nail clippings in item No.4(a).

Crl.Appeal No.225/14 -:27:-

3. The cellophane tapes in items 2(a) and 2(b) contain minute fragments of hair which are unsuitable for comparison with the sample of hairs in item 4(b)."

The cellophane tapes in items 2(a) and 2(b) contain fibres similar to those in items 5 and 6. Item nos. 5 and 6 were seized as per Ext.P6 mahazar which is the dress allegedly worn by the appellant at the time of occurrence. We don't think the factual situation of Pantangi Balarama Venkata Ganesh (supra) has any application in the present case. The defence does not have a case before the trial Court that the fibres are not identical or that it was not similar. As far as the evidence of PW29 is concerned on this aspect, there is absolutely no cross examination on collection of cellophane pressings by PW29. Their case was one of total denial and fabrication of evidence by the prosecution. Having found this crucial aspect against the appellant, S.106 of the Evidence Act casts a burden on the appellant to explain how the fibres on his dress came in the cellophane pressings collected from the hands of the victim. No explanation is forthcoming in his 313 examination. At this point, learned counsel for the appellant, taking much pain, placed before us Parasuram Pandey and Ors v. State of Bihar (AIR 2004 SC 5068) to support her Crl.Appeal No.225/14 -:28:- contention that it is imperative on Court to record statement of accused persons so as to give opportunity to accused persons to explain any incriminating circumstance proved by the prosecution. If such opportunity is not afforded, incriminating piece of evidence proved by prosecution cannot be relied upon. According to her, the evidence of experts were not put to the witnesses in a way understandable to him and this caused prejudice to him as he was not given an opportunity to explain one of the key incriminating circumstance relied upon by the prosecution. But on perusal of records including 313 statement of the appellant, it is seen that the same evidence was placed before him to give an explanation by learned Sessions Judge. As already elaborated, the appellant denied the same and alleged that it was fabricated. No prejudice is shown to have caused to the appellant. Hence the said argument cannot be sustained.

30. Moreover, out of the items, certain items were sent to Scientific Assistant (Chemistry), FSL, Thiruvananthapuram for detecting presence of chilli powder. In the said forwarding note, item no. 1 was the plastic cover with a label 'Sreelakshmi Chilly Powder', item no. 3(a) was the red coloured powder collected Crl.Appeal No.225/14 -:29:- from the room involved in Crime. No. 111/06 of Vellikulangara P.S., item no. 3(b) was red coloured powder collected from the right side thigh of the deceased involved in Crime. No. 111/06 of Vellikulangara P.S. and item no.6 was one full sleeve shirt with black, yellow and white check designs with a tailor label 'Silpa, Iravimangalam'. The result of the examination is that all these items were found with chilli powder. Item no. 6 is the shirt allegedly worn by the appellant at the relevant time and it was recovered as per Ext.P6 mahazar.

31. Prosecution proved that the deceased was having gold ornaments on her person and they were missing at the time of seeing her dead body. Prosecution allegation is that the said ornaments were recovered at the instance of the appellant based on his disclosure statement. But recovery of MO1 and MO2 series gold ornaments at the instance of the appellant is not so convincing. Interestingly, the disclosure statement did not mention what was kept at the place where the ornaments were allegedly placed. Only the place is mentioned, not the gold ornaments. It would not fall under Section 27 as recovery but nevertheless it would prove the conduct of the appellant, Crl.Appeal No.225/14 -:30:- admissible under Section 8 of the Evidence Act. It is also brought in evidence that the appellant approached PW9 for selling some gold ornaments. The evidence of PW9 also can be treated as proof for the subsequent conduct of the appellant.

32. Learned counsel for the appellant contended that the evidence of PW4 cannot be believed as there are several infirmities in the said evidence which casts doubt on his version that he saw the appellant sitting on a chair in the house of the deceased. It was argued that taking into account the location of the building and the pathway through which PW4 has proceeded to reach his house, there is no possibility of seeing the accused in the house of the deceased at the relevant time. But, while analysing the scientific evidence available in the case, especially the evidence of PW29 and the expert opinion gathered in the form of Ext.P24 report, tends us to believe the presence of the accused in the house of deceased during the relevant time. Of course, learned counsel for the appellant has a case that in Ext.P13, PW29 has not stated regarding the taking of cellophane pressings from the hands of the accused. Taking a cellophane pressing from the hands of victim is a usual procedure that is Crl.Appeal No.225/14 -:31:- being adopted by the Scientific Assistants while inspecting the body in the scene of occurrence. Absence of mention regarding the taking of cellophane pressings in Ext.P13 report by itself will not render the oral testimony ineffective. The evidence of PW29 had not even been questioned during cross-examination to indicate that the cellophane pressings of the victim had not been taken. The cellophane pressings and the scientific evidence noticing the fibres of the dress of the accused and the chilly powder were material piece of evidence which connects the chain of events leading to the culpability of the accused.

33. The scientific evidence coupled with the other circumstances relied on by the trial Court except those which we have declined to accept, compel our ordinary prudence to conclude that there are sufficient material to implicate the appellant herein to the commission of the offence. The scientific evidence available and other evidence connect the dots which uncover the culprit behind the crime. We have no hesitation to hold that the Court below was justified in concluding that the prosecution has proved the case against the appellant beyond the shadow of reasonable doubt. He trespassed into the property, Crl.Appeal No.225/14 -:32:- murdered the victim by strangulating her and spread chilli powder over the body of the victim and the scene to destroy evidence and took away the gold ornaments. All these allegations stand proved.

34. Yet again an old woman who lived alone is targeted and killed. This is a murder for gain. No interference is called for.

In the result, the appeal is dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                                A.M.BABU

Rp              //True Copy//                    JUDGE

                    PS to Judge

Unlock Advanced Research with PRISMAI

Kerala High Court