Noushad @ Chemban vs State Of Kerala on 9 August, 2012

[Cites 12, Cited by 4]

Kerala High Court

Noushad @ Chemban vs State Of Kerala on 9 August, 2012

The appeal is filed by the 3rd accused in S.C No.427 of 2006, who is found guilty for murder and sentenced to undergo imprisonment for life and to pay a fine of Rs.2000 u/s 302 of the Indian Penal Code (IPC for short), rigorous imprisonment for 10 years and fine of Rs.1000 u/s 449 of the IPC, rigorous imprisonment for 10 years and to pay fine of Rs.1000 u/s 394 of the IPC. The accused were prosecuted for the aforesaid offences pursuant to registration of Crime No.46 of 1999 of Alathur Police Station.

2. According to the prosecution, on 8.2.1999 at about 1.30 am, accused 1 to 3 along with the 4th accused, Abdulrahiman with a common intention to commit robbery trespassed into the house of an aged women, Smt. Kalu. It is alleged that the 1st accused pulled the hands of the deceased who was sleeping inside the house onto her back and tied with a towel, the 2nd accused gagged her mouth with two jackets and her mouth was covered with a cloth tied around her, the Crl.A. No. 1238 of 2012 -2- 3rd accused tied her legs with another towel. The intention was to commit robbery and in that process she suffocated and died. It is further alleged that the first accused removed the gold ear studs weighing 4.500 gm having a value of Rs.1600/-.

3. PW13 undertook investigation into the crime and he submitted final report before the Judicial Magistrate of 1st Class, Alathur. Since the 2nd accused was absconding, the case against him was split up. The Magistrate committed the matter to the Sessions Court, Palakkad. The 2nd accused was later arrested and produced and his case was also committed to the Sessions Court, Palakkad.

4. Both the cases were tried together. The 4th accused died during the pendency of trial and the case against him abated.

5. Prosecution examined 15 witnesses as PW1 to PW15 and relied upon Exts. P1 to P17. The material objects produced were MO1 to MO9. After prosecution evidence, the accused were questioned under Section 313 of the Cr.P.C. They denied the incriminating evidence against them. The court below acquitted accused 1 and 2 and convicted the third accused. Crl.A. No. 1238 of 2012 -3-

6. The learned counsel for the appellant submitted that there is no evidence to prove the case against the accused. The court below had relied upon materials which were not proved and had arrived at a conclusion of guilt which was totally erroneous and liable to be set aside.

7. On the other hand learned Public Prosecutor supported the view of the court below and submitted that a henious crime has been committed by the accused. An age old lady was murdered by inserting cloth in her mouth and covering her face with another cloth. She died due to suffocation. The idea was to commit robbery and in that process the old lady died.

8. The court below found that the death of Smt. Kalu was due to gagging. The intention of the accused was to commit house trespass, robbery and murder. The involvement of the accused is evident from the recovery of MO1 series ear studs from PW7. The recovery of the ear studs based on the disclosure statement of the accused clearly proves the circumstances against the accused and there is no other circumstance to find out the innocence of the accused. Hence the court below found the 3rd accused guilty for offences punishable under Sections 449, Crl.A. No. 1238 of 2012 -4- 302 and 394 of the IPC. He was therefore convicted and sentenced accordingly.

9. Before proceeding further it will be useful to consider the evidence adduced by the prosecution. PW1 is the son of Kalu. He deposed that she alone was residing in the building. There was no electricity connection. PW1 got information from Smt. Saradha (PW4) a neighbour of the deceased, that Smt Kalu did not respond when she called her. PW1 came to Kalu's house along with his wife and others. They found the deceased inside her house lying down below her cot with her hands and legs tied and her nose and mouth covered and tied with a cloth. They also found cloths thrust inside her mouth to gag her. Her jacket was found unbuttoned and opened. She was dead. The entire house was ransacked and the articles inside the metal and wooden drums were scattered. The almirah was opened and the articles were pulled out and scattered. The ear studs of the deceased was missing and her ear lobes were blood stained. He gave Ext.P1 First Information Statement (FIS) to the Sub Inspector of Police (PW14). Before court PW1 identified the ear studs, MO1, which belonged to his mother. He also identified MO2 to MO3 Crl.A. No. 1238 of 2012 -5- jackets which were thrust into the mouth of the deceased. MO4 was the cloth found on the body of the deceased and MO5, another piece of cloth. MO6 series is the lock and latch of the front door of the house and MO7 series are the towels with which hands and legs of the deceased were found tied.

10. PW2, a neighbour of the deceased is a witness to Ext.P2 inquest report. He also identified MO8 series, a bunch of keys and a pouch lying inside the kitchen. He had also seen the deceased lying inside her house, as described by PW1. PW2 also identified MO2 to MO7 series material objects seized as per Ext.P2. PW3 is also a neighbour of the deceased. He also saw the deceased lying dead in the presence of PW1.

11. PW4 is Saradha, another neighbour. She deposed that she had gone to Nilambur on 7.2.1999 to attend her daughter's marriage. On 8.2.1999 at 6 am she came back. PW4 went to Kalu's house to inform the details of the marriage to her, on her way to fetch water. But Kalu did not respond to her call and the front doors were found partly open. PW4 found Kalu lying below her cot. She tried to wake her up. But there was no response and therefore she rushed to tell PW1. She also found the ear Crl.A. No. 1238 of 2012 -6- studs of the deceased missing. She identified MO1 series ear studs.

12. PW5 is the grand daughter of the deceased Kalu. She had met Kalu at 5 pm on 7.2.1999. At that time the deceased was wearing the ear studs. She had spent some time with her and came back home. She also identified MO2 to MO4 clothes which belonged to the deceased.

13. PW6, Parameswaran is a vendor and maker of copper vessels. He used to take valuable articles on pledge. He identified MO1 series ear studs. According to him he handed over the ear studs to the police. He got the ear studs on payment of Rs.660/-. But he does not remember the person who pledged the ear studs. He however submitted that the police prepared seizure mahazar at the time of seizure. PW7 is a witness to Ext.P4 mahazar by which MO1 series ear studs was seized by the police. He stated that a goldsmith Selvaraj (PW10) had signed the mahazar in the presence of PW6 and the 3rd accused. PW8 is an attestor to Ext.P5 seizure mahazar of the articles from the house of the deceased. PW9 is the photographer who had taken the photograph of the place of incident and the deceased. Ext.P6 Crl.A. No. 1238 of 2012 -7- series are the photographs and the negatives. PW10 is a goldsmith. He identified the 3rd accused as the person who was taken by the Circle Inspector of Police, Ottapalam. He had gone with them at the request of the Inspector. He deposed that the 3rd accused showed PW6 to the police. PW6 agreed that he was having ear studs and MO1 series were handed over to the police. He examined MO1 series and confirmed the same to be gold and weighed 4.5 gms. He is an attestor to Ext.P4 mahazar. PW11 is running a tea shop in front of the Taluk office Alathur. He deposed that on a particular day, 10 years back, at about 12.30 hours, during night time, the accused 1 to 3 had come to his shop to take food. On the next day he got information that an old lady was found killed. He identified the accused in the Police Station. PW12 is the Village Officer who prepared Ext.P7 scene plan.

14. PW13 is the Investigating Officer who spoke about the manner in which the investigation was conducted. According to him he got information that the 4th accused was involved in the crime. He was arrested on 28.7.1999 as per Ext.P8 arrest memo. The 3rd accused was arrested in the same night at 3.15 Crl.A. No. 1238 of 2012 -8- am as per Ext.P9 arrest memo. The 3rd accused had made a confession that the ear studs were sold by him to a person by name Sivan @ Parameswaran (PW6) a vessel maker in Ottapalam and on the basis of information given by him, he reached the shop of PW6 and recovered MO1 series ear studs as per Ext.P4 mahazar. The 1st accused was arrested as per Ext.P10 arrest memo and the 2nd accused as per Ext.P11 arrest memo. PW14 is the Sub Inspector of Alathur Police Station, who recorded Ext.P1 statement and registered Ext.P1(a) FIR.

15. The postmortem of the deceased was conducted by police surgeon CW18 and he issued Ext.P16 postmortem certificate. Since the presence of the Doctor could not be procured for examining before court, PW15, Dr. Ignatious was examined who was conversant with the signature and seal of CW18. As per the postmortem certificate (Ext.P16), the ante mortem injuries noted were as under:

"1. Contusion 3x1 cm on the right side of face 1.5 cm to the right of angle of mouth.

2. Abrasion 8x5 cm on the left side of face 2 cm to the right to left angle of mouth and 3 cm above lip. The inner aspect of both lips under surface of tongue and the sides of mouth cavity showed diffuse contusion with occasional Crl.A. No. 1238 of 2012 -9- detachment of mucous membranes of lips and floor of mouth. The central incisors of the upper jaw was dislocated and the alveolar socked bruised.

3. Contusion 3x2 cm on the left side of face over the malar bone.

4. Abrasion 2.5x1 cm on the back of left elbow.

5. Abrasion 1.4/1 cm on the back of right elbow.

6. Dark circular discolouration around both lower legs just above the ankles. The soft tissues underneath was not bruised.

7. The root of tongue showed congestion and slight bruising."

The Doctor opined that the cause of death was that she was gagged to death.

16. As already stated, accused 1 and 2 were acquitted and the 4th accused expired. The 3rd accused alone is convicted. The only evidence against the 3rd accused to connect with the incident, is the recovery of MO1 series. Evidence of PW1, PW4 and PW5 proves the fact that MO1 series ear studs belonged to the deceased. Ext.P17 is the confession statement. In Ext.P17 the 3rd accused had stated that he had sold the ear studs to a person named Parameswaran @ Sivan who is a vendor of copper vessels and that if he is taken, he will show the person. PW6 is Parameswaran. He had identified MO1 series. He stated that 2 Crl.A. No. 1238 of 2012 -10- months before entrusting the ear studs to the police, he got the same. A person had brought it and he had given Rs.660/- as pledge amount. However, he does not remember as to who had brought the ear studs. He also deposed that he does not know barber Haneefa. He did not identify any of the accused. The police had come for the articles and he had given it to them. He was declared hostile and was cross examined. In cross examination he deposed that he did not know the third accused. However, he admits that the mahazar was prepared in his shop. He had not given any statement to the police that the 3rd accused has come and had given the ear studs to him. He was confronted with Ext.P3 statement. However, from the evidence of PW10, it is clear that it is based on the statement of the 3rd accused that the ear studs belonging to the deceased was recovered. In other words, the case of theft has been proved beyond reasonable doubt. That apart, the involvement of the 3rd accused in the scene of crime at the house of the deceased is also proved by the said recovery.

17. The question is whether the above evidence is enough to convict the accused for the offence under Sections 302, 394 Crl.A. No. 1238 of 2012 -11- and 449 of IPC. The accused has been punished for the offences under Sections 394, 449 and 302 IPC. Section 449 reads as under:

"449. House-trespass in order to commit offence punishable with death:- Whoever commits house- trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine"

18. There cannot be any dispute that the accused have committed house breaking as defined under Section 445 of the IPC during night hours for which the punishment is provided under section 448 IPC, that is imprisonment for one year or fine of Rs.1000/- or with both. However, if the house trespass is for committing any offence punishable with death, the punishment provided is under Section 449 of the IPC and the punishment is imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine. The only factor to connect the accused with the crime is the recovery of the ear studs. Though the assailants committed house trespass there is no material to indicate that the house trespass was to Crl.A. No. 1238 of 2012 -12- commit offence punishable with death. In such circumstances, we do not think that there is justification in convicting the accused u/s 449 of the IPC.

19. The accused has also been punished for the offence punishable under Section 394 of the IPC, which reads as under:

"394. Voluntarily causing hurt in committing robbery:-

If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

20. Robbery is defined under Section 390 of the IPC which reads as under:

"390. Robbery:- In all robbery there is either theft or extortion.

When theft is robbery:- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

When extortion is robbery:- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of Crl.A. No. 1238 of 2012 -13- instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

Explanation:- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."

21. Apparently in this case going by the ante mortem injuries as evident from the postmortem certificate (P16) and the evidence of PW13, she was wrongfully restrained by tying her hands and legs, gagging her mouth with piece of cloth and covering and tying her mouth with towel. Apparently the intention of the assailants was to cause wrongful restraint or fear of instant death. Therefore, Section 394 IPC is clearly attracted to the case on hand.

22. The other offence charged was under Section 302 of the IPC. The prosecution had arrayed 4 accused in the party array and had a case that each of the accused had committed a particular overt act. Apparently the intention of the assailants was not to commit murder and there is no evidence for the same. It is a clear instance of robbery and thereby causing hurt during the said process. Unfortunately the victim died. Since even Crl.A. No. 1238 of 2012 -14- according to the prosecution 4 persons were involved in the crime, the question is whether they intended to commit murder. The fact that they have gagged her and tied her mouth with a piece of cloth, itself would show that their intention was to immobilize her and keep her silent. The possibility of gagging her to death may not have been intended.

23. Learned counsel for the appellant relies upon the judgment in State of Uttar Pradesh v. Sunil 2017 AIAR (Criminal) 611. This judgment is relied upon to emphasise the fact that when there is no direct witness to prove the prosecution case, conviction of the accused can be made on the basis of circumstantial evidence, provided, the chain of circumstances is complete and beyond all reasonable doubt. There is no doubt about the above preposition of law. Learned counsel also places reliance on the judgment of the Apex Court in Raj Kumar @ Raju v. State (NCT of Delhi) AIR 2017 SC 614. That was also a case where circumstantial evidence was relied upon by the prosecution. It was found that certain jewellery items including gold ornaments were missing from the house. The accused were apprehended and on personal search the jewellery items were Crl.A. No. 1238 of 2012 -15- recovered. The prosecution relied upon circumstantial evidence. First was that in the night prior to the incident the accused were present in the house and secondly they were in possession of the gold ornaments belonging to the deceased which was not explained by them. Placing reliance on the judgment in Sanwat Khan and Another v. Sate of Rajasthan AIR 1956 SC 54, it was held that recovery of ornaments from the accused or production of same by the accused in the process of investigation, howsoever suspicious, cannot be conclusive of the question of the accused having committed the offence. The Apex Court in Sanwat Khan (supra) further held that though recovery of the ornaments can lead to a presumption that the accused had committed robbery or received stolen property, unless there are circumstances to show that the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offence under Section 302 of the IPC.

24. The Apex Court thereafter in Raj Kumar (supra) held at paragraphs 12 and 13 as under:

12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the Crl.A. No. 1238 of 2012 -16- possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence / offences alleged. Even with the aid of the presumption under S.114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction.

No such evidence is forthcoming.

13. In view of what has been found above, we do not see as to how the charge against the accused / appellant under S.302 IPC can be held to be proved. The learned Trial Court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration

(a) of S.114 of the Evidence Act, it has to be held that the conviction of the accused appellant under S.392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under S.302 IPC against the accused and he is acquitted of the said offence. The conviction under S.392 IPC is upheld. As the accused appellant, who is presently in custody, had already served the sentence awarded to him under S.392 IPC, we direct that he be set at liberty forthwith."

25. Therefore what is required to be proved by the prosecution is whether the victim died in the same transaction. As observed by the Apex Court in the judgment cited above, Crl.A. No. 1238 of 2012 -17- though there is a strong suspicion of murder being committed during the process of robbery, it will not amount to a conclusive proof. Under such circumstances, we are of the view that the accused could not have been convicted under Section 302 of IPC. However, he is liable for punishment under Section 394 of the IPC.

Accordingly, this appeal is partly allowed. The conviction and sentence of the accused under Section 302 and 449 of the IPC is set aside sustaining the conviction and sentence of the accused under Section 394 of the IPC.

Sd/-

A.M.SHAFFIQUE, JUDGE sd/-

P.SOMARAJAN, JUDGE kp

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