Unknown vs P.K.Basheer And Others : (2014) on 28 October, 2011

[Cites 40, Cited by 0]

Kerala High Court

Unknown vs P.K.Basheer And Others : (2014) on 28 October, 2011

The accused in Sessions Case No.27 of 2008, on the file of the III Additional Sessions Judge, Ernakulam, challenges his conviction and sentence in Crl.Appeal No.453 of 2012. The accused/appellant was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `25,000/-, and in default to undergo rigorous imprisonment for one year for the offence punishable under Section 449 of the Indian Penal Code, to undergo rigorous imprisonment for seven years and to pay a fine of `25,000/- and in default to undergo rigorous imprisonment for one year for the offence punishable D.S.R.No.1 of 2012 2 Crl.A.No.453 of 2012 under Section 392 read with Section 397 of the Indian Penal Code ; to undergo rigorous imprisonment for seven years and to pay a fine of `25,000/- and in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 394 of the Indian Penal Code ; to undergo rigorous imprisonment for seven years and to pay a fine of `25,000/- and in default to undergo rigorous imprisonment for one year for the offence punishable under Section 307 of the Indian Penal Code. The appellant was sentenced to death for the offence punishable under Section 302 of the Indian Penal Code. It was also held that the substantive term of the imprisonment shall run concurrently. The case records were forwarded to the High Court as provided under Section 366 (1) of the Code of Criminal Procedure for confirmation of the death of sentence. Accordingly, D.S.R.No.1 of 2012 was registered. D.S.R.No.1 of 2012 3 Crl.A.No.453 of 2012

2. Since common questions are involved in D.S.R.No.1 of 2012 and Crl.Appeal No.453 of 2012, they are being disposed of together by this judgment.

3. Hereinafter, the accused, Jayanandan @ Jayan is referred to as the accused.

4. The prosecution case against the accused is the following :

The accused, with an intent to commit robbery and murder, on 2.10.2006, at about one hour after midnight, committed house trespass by entering into the house belonging to PW2 and the deceased with dangerous weapons such as iron bar and chopper, voluntarily caused grievous hurt on the head of PW2 Ramakrishnan, who was sleeping, attempted to murder him and caused the death of Baby @ Devaky, W/o.Ramakrishnan, who D.S.R.No.1 of 2012 4 Crl.A.No.453 of 2012 was sleeping in the house, cut and removed her left palm at the wrist and committed robbery of gold ornaments weighing 96.9 gms. and cash of `1,300/- kept in an earthen hundial.

5. Deceased Baby @ Devaky and her husband Ramakrishnan were residing in their house at Puthenvelikkara Panchayat. The brother-in-law of the deceased (sister's husband- PW1 Sreedharan) resides nearby. Ramakrishnan used to regularly visit Sreedharan after the darshan at Bhagavathi temple at Puthenvelikkara. The birthday of PW2 Ramakrishnan was on 1.10.2006. On that day, Ramakrishnan came to the house of Sreedharan with payasam offered to the deity. Thereafter, since Ramakrishnan did not go to the house of Sreedharan for two days, PW1 Sreedharan went to his house situated 1= km. away, at about 7.45 P.M. When he reached there, Viswanathan, a friend of Ramakrishnan, was also there. Viswanathan had called D.S.R.No.1 of 2012 5 Crl.A.No.453 of 2012 Ramakrishnan over phone. Since nobody took the phone, Viswanathan came to the house of Ramakrishnan enquiring his whereabouts. Sreedharan entered the sitout of the house and rang the calling bell. There was no response. The key was found on the front door in the key hole and the newspaper of the day was also found at the sitout. The light on the terrace and in the north western room of the house were found lit. Sreedharan peeped into the room and something unusual was found there. When they came to the rear side of the house, the door at the rear side was found open. A black torch was found lying near the step. As they got afraid, PW1 and Viswanathan went to the house of neighbour Reghu. He was not there. His wife Syamala (PW4) said that she did not see Baby @ Devaky for the last two days. She also came with them to the house of the deceased. She called the deceased by name. There was no response. PW1 lighted the torch and they looked into the room through the D.S.R.No.1 of 2012 6 Crl.A.No.453 of 2012 window. They found Ramakrishnan lying on the cot. A pool of blood was found on the floor. Hearing the hue and cry, the neighbours, Paul (PW5), Radhakrishnan (PW26), Thomas and others came. Paul informed the police about the incident. The Assistant Sub Inspector of Police and two police men came to the spot. They entered the house through the rear door. Sreedharan, Viswanathan, Paul, Thomas and Dr.V.R.Pillai also entered into the house. They recognised the pungent smell of cooking gas. Dr.V.R.Pillai examined Ramakrishnan and stated that Ramakrishnan was alive. PW1, Paul and Ramakrishnan's nephew Prasannan, took Ramakrishnan to the Government Hospital, Puthenvelikkara. As advised by the doctor, Ramakrishnan was taken to Little Flower Hospital, Angamaly, and he was admitted there. PW1 went to the Police Station and furnished Exhibit P1 F.I. Statement at 11.30 P.M. on 3.10.2006. On the basis of Exhibit P1 F.I. Statement, Exhibit P1(a) FIR was D.S.R.No.1 of 2012 7 Crl.A.No.453 of 2012 registered by PW44. Inquest on the dead body of Baby @ Devaky was conducted on 4.10.2006 by the Deputy Superintendent of Police (Administration), Aluva, and Exhibit P3 inquest report was submitted. The postmortem was conducted by PW33 on 4.10.2006 and Exhibit P28 postmortem report was prepared. Investigation of the case was conducted by PW48. At 2 P.M., on 4.10.2006, as directed by the investigating officer, the well situated behind the house was drained and MO16 iron bar, MO17 chopper, MO18 black colour purse and MO10 torch were taken out from the well and Exhibit P17 mahazar was prepared. The investigating officer visited the place of occurrence along with Scientific Assistant, finger print expert, dog squad and photographer. After smelling the iron rod, door handle etc. found at the place of occurrence, the dog went up to Morathodu canal situated about 40 mts. away. D.S.R.No.1 of 2012 8 Crl.A.No.453 of 2012

6. The accused was arrested on 23.11.2006 by PW46, the Sub Inspector of Police, Paravur. On the basis of the confession statement made by the accused and as led by him, the police went to the office of a financier, namely, Thomson Bankers at Chalakkudy run by PW17. PW17 and the accused identified each other. PW18, PW19 and PW20 are the employees in the business establishment of PW17. They also identified the accused. PW17 produced 6 bangles, 2 rings and a chain which were kept in the locker of Thomson Bankers, on the basis of the disclosure statement made by the accused that he had pledged ornaments in the business concern of PW17. The accused identified those ornaments which were taken as per Exhibit P9 mahazar. The gold ornaments are MOs.5 to 8. The gold loan ledger was produced by PW17. The accused identified his signature in the said register. Exhibits P5 to P8 receipts were also produced by PW17 which were taken into D.S.R.No.1 of 2012 9 Crl.A.No.453 of 2012 custody by Exhibit P11 mahazar. The accused identified Exhibits P5 to P8 and the signatures in Exhibits P5 and P7 receipts. The accused was brought to his house and he identified his dhothi and shirt which, according to the prosecution, the accused was wearing at the time of the incident. On a search of the house of the accused, Exhibits P22 to P24 were seized as per Exhibit 21 search list. As per the disclosure statement made by the accused, he led the investigating officer to the southern side of Morathodu and two pieces of broken earthen hundial (MO9 series) were seized from Morathodu. According to the prosecution, the accused had purchased one Omni Van bearing No.KL8 AE 2814 and the money for the same was obtained by the sale of ornaments belonging to the deceased and her husband. PW47 conducted investigation after he took the charge on 14.5.2007. He completed the investigation and laid the charge sheet.

D.S.R.No.1 of 2012 10 Crl.A.No.453 of 2012

7. On behalf of the prosecution, PWs 1 to 48 were examined, Exhibits P1 to P59 were marked and MOs 1 to 22 were identified.

8. PW1 is the co-brother of the injured Ramakrishnan (PW2). He stated that Ramakrishnan used to visit him on all days after darsan in the temple. After 1st October, 2006, he did not visit PW1. On 3rd October, PW1 went to Ramakrishnan's house. At that time, Viswanathan, a friend of Ramakrishnan, also came there. They entered in the sitout. There was no response to the calling bell and there was light in the north western room. PW1 peeped through the window. He saw that the mosquito net was out of place and the drawer of the table was opened. They went to the rear side of the house. The rear door was found open. They also found a pen torch on the side of the step. They did not enter the house as they got afraid. PW1 and D.S.R.No.1 of 2012 11 Crl.A.No.453 of 2012 Viswanathan went to the house of Reghu. Reghu's wife Syamala also came to the house of Ramakrishnan. They looked into the room by using a torch light and they found Ramakrishnan lying on the cot and also found a pool of blood on the floor. Syamala cried aloud. The neighbours came to the place. On information given to the police, an Assistant Sub Inspector of Police and two policemen came there. They entered into the house. Dr.V.R.Pillai, on examination of Ramakrishnan, found that he was not dead. Ramakrishnan was taken to Government Hospital and as advised by them, he was taken to Little Flower Hospital. Thereafter, PW1 went to the Police Station and furnished Exhibit P1 F.I. Statement. PW1 was present at the time of inquest. He stated that the left palm of the deceased was found cut and it was lying on the cot. It was found that six golden bangles belonging to the deceased was lost. The earthen hundial in the pooja room was also found lost. D.S.R.No.1 of 2012 12 Crl.A.No.453 of 2012 The chain and two rings belonging to Ramakrishnan were also not there.

9. PW2 Ramakrishnan stated that he and his wife went to bed in two different rooms. As usual he removed his chain and rings and placed the same in the pooja room. He identified MO5 and the rings as MOs 6 and 7. He also identified MO8 series bangles. PW2 stated that with a heavy weapon made of iron somebody beat on his head while asleep. He opened his eyes and saw a person. He identified the person as one similar to the accused. PW3 Pramodkumar is the son of the deceased. He was working in Bombay. He came to the native place on getting information about the incident. He stated that on 3rd October, he called his mother over phone, but nobody took the phone. Later, he got the information that a thief had entered into his house and his father had sustained injuries as a result of the D.S.R.No.1 of 2012 13 Crl.A.No.453 of 2012 attack by the thief. Another relative told him that his mother was dead. From the Air Port, he went to Little Flower Hospital, Angamaly to visit his father. He identified MO8 series bangles, MO5 chain and MO6 and MO7 rings. He was present when the accused took out the broken pieces of the hundial from Morathodu. He identified MO9 pieces of hundial. He identified the accused as the person who pointed out the place in Morathodu as the place where MO9 were put. He also identified MO10 torch.

10. PW4 Syamala is the neighbour of the deceased and PW2. She saw PW2 and the deceased on 1st October at the temple. Later, on 3rd October, PW1 and Viswanathan came to her house. She narrated the incident as narrated by PW1.

11. PW5 is a neighbour of the deceased. He went to the D.S.R.No.1 of 2012 14 Crl.A.No.453 of 2012 house of the deceased on 3.10.2006 after 7.30 P.M. when he heard a hue and cry from that place. He also narrated what transpired thereafter, as spoken to by PW1.

12. PW6 Sudhakaran, the nephew of PW2, was present at the time of inquest. PW7 was also present at the time of inquest. He identified MO12 blanket with which the body of the deceased was covered. He stated that the left palm of the deceased was found removed. He identified MOs 2 and 13 blouses, MO14 skirt and MO15 saree belonging to the deceased.

13. PW10 knew the accused and they are neighbours and classmates. He stated that he saw the accused at Puthenvelikkara about 3 to 5 years ago. PW11 stated that his bicycle was stolen on the previous day of the date of murder of Baby. He is a D.S.R.No.1 of 2012 15 Crl.A.No.453 of 2012 neighbour of the deceased. Since the bicycle was old, he did not make a complaint to the police.

14. PW12 is a neighbour of the deceased. She had given contract to one Pushkaran for the construction of her new house and Pushkaran had entrusted the concreting work to PW9 Viswanathan. On 30th September, 2006, during night, her one year old child woke up and cried. She gave milk to the child. When the child was being fed, the light in the kitchen turned off and it was put on later and she heard the sound of someone pressing the switch. Later, she saw the light of a torch in her bed room. She saw a person standing near the entrance of the bed room. That person was having a height of about 5 feet and his hair was peculiar in nature and the witness identified the accused as the person who was found in her house. She also identified the accused in the identification parade. She stated that a torch D.S.R.No.1 of 2012 16 Crl.A.No.453 of 2012 and a mobile phone were lost from her house. She identified MO1 torch. PW12 stated that when she saw a person in her house near her bed room, she made a hue and cry and the person ran out of the house. She stated that she made a complaint to the police about the theft of the torch and the mobile phone.

15. PW13 Shaimon stated in evidence that on the night of 28th September, 2006, his mobile phone, watch, umbrella, shirt, purse, R.C.book of the vehicle, insurance papers, licence and chopper were stolen away from his house. He identified the chopper as MO17. PW14 stated that MO17 was made by him and it was sold to Swapna, the wife of PW13.

16. PW15 is a coolie. He stated that on 4th October, 2006, he went inside the well in the compound of the deceased as directed by the police. The water in the well was pumped out. D.S.R.No.1 of 2012 17 Crl.A.No.453 of 2012 He took out MO16 iron rod, MO17 chopper, MO10 torch and MO18 purse from the well and gave the same to the police.

17. PW16 stated that his shirt and pants were stolen away from the terrace of his house on 2nd October, 2006. He identified the shirt as MO19.

18. PW17 Thomas Thomas was running Thomson Bankers at Chalakkudy. It is also called Thomson Enterprises. He stated that PWs 18, 19 and 20 are his employees. The witness stated that on 2.10.2006, the accused came to his financial institution and pledged 12 sovereigns of gold. The gold ornaments were inspected by PW19, the gold appraiser. Since the gold was of inferior quality, the weight was taken as 83 gms. PW18 prepared the documents for taking gold from the accused. The accused gave his address as Babu, Pottokaran D.S.R.No.1 of 2012 18 Crl.A.No.453 of 2012 House, Koodapuzha, Chalakkudy. On 6th October, 2006, the accused came to Thomson Bankers again and stated that his vehicle was seized by the financiers and therefore, some more money is required. Since no amount was paid, the accused sold the gold to PW17. Accordingly, `10,000/- more was given to the accused. The slip and the receipt issued to the accused were taken back and the signature of the accused was taken in the closing register. On 24.11.2006, the police came to the office of the witness. Then only he came to know that the name of the accused is Jayanandan and that the ornaments pledged by him were stolen articles. The gold pledged by the accused were taken out from the locker and entrusted to the police. PW17 identified MOs. 5 to 8. Exhibit P4 is the ledger kept by PW17 in his office. Carbon copy of the stipulations issued to the accused and signed by the accused is Exhibit P6. Exhibit P7 is the D.S.R.No.1 of 2012 19 Crl.A.No.453 of 2012 document signed by the accused when he pledged the gold and closed the same. The original of the stipulations is Exhibit P8.

19. PW18 Preethi was working in Thomson Bankers. She stated that on 2.10.2006, the accused came there to pledge the ornaments. On 6.10.2006, the accused came to Thomson Bankers and sold the gold to PW17. The police came to the shop on 24.11.2006. She stated that on 2.10.2006, she made entries in Exhibit P4 register and in the slip. Exhibit P5 computer slip and Exhibits P6 and P7 were identified. The witness stated that the accused gave the address as Babu.P.G., Pottokaran House, Near Canal Palam, Koodapuzha, Chalakkudy and it was so recorded in Exhibit P4(a). She also identified the signature of the accused in Exhibit P4(a). The witness identified MOs. 5 to 8.

D.S.R.No.1 of 2012 20 Crl.A.No.453 of 2012

20. PW19 was the appraiser working in Thomson Bakers. He identified the accused. He stated that the gold ornaments given by the accused were inspected by him. He also identified MOs. 5 to 8. The witness stated that on 24.11.2006, the accused was brought to the shop by the police and the police took into custody the said ornaments.

21. PW20 Babu was the Manager of Thomson Bankers. He stated that he saw the accused on 2.10.2006 and 6.10.2006. He stated in evidence the details of the pledging of gold ornaments by the accused. The police took into custody the gold ornaments. He also signed as witness to Exhibits P9, P10 and P11 mahazars. He identified MOs.5 to 8 ornaments. The witness stated that Exhibit P4 is the ledger and Exhibits P5 to P8 are the receipts and other documents.

D.S.R.No.1 of 2012 21 Crl.A.No.453 of 2012

22. PW22 Babu is the brother-in-law of the accused. The witness stated that he did not pledge any gold ornaments at Thomson Bankers, Chalakkudy. The witness stated that his address is Babu.P.G., S/o.Gopalan, Pottokaran House, Koodapuzha, Chalakkudy.

23. PW23 Surendran stated that he sold his Maruti Omni Van bearing registration No.KL 8 AE-2814 to the accused on 2.10.2006 for a price of `52,000/-. A sum of `25,000/- was given as advance. On 18.10.2006, the accused paid the balance amount of `27,000/-. The registration of the vehicle was transferred in the name of the accused.

24. PW24 Shibu was a financier. He used to give loans on pledging R.C.Book of vehicles. The accused met the witness and a sum of `27,000/- was paid as loan on pledging the Omni D.S.R.No.1 of 2012 22 Crl.A.No.453 of 2012 Van bearing registration No.KL8AE-2814 on 18.10.2006. On 11.12.2006, the police took the records as per Exhibit P13 mahazar. He identified Exhibit P14 series R.C.Book and other documents in respect of the vehicle. He also identified Exhibit P15 hire purchase agreement.

25. PW25 is the wife of the accused. She turned hostile to the prosecution. She stated that the accused is her husband and they used to reside at Pallippuram and occasionally in her house at Chalakkudy. The witness stated that after arresting the accused, the police came to her house and took away the pass book and the records of the Omni Van. She stated that money was raised for purchasing the van after pledging her chain and the gold ornaments of her daughter. The witness admitted that the signature in Exhibit P5 is that of the accused. D.S.R.No.1 of 2012 23 Crl.A.No.453 of 2012

26. PW26 Radhakrishnan stated that he is a neighbour of the deceased and PW2. On 4.10.2006, the police along with finger print expert and others came to the house of the deceased. He saw that the water from the well in the compound was being pumped out. He also saw PW15 entering into the well and taking out iron bar, chopper etc.. He signed Exhibit P17 mahazar. PW26 identified MO10 torch, MO16 iron bar, MO17 chopper and MO18 purse. He stated that on the rear side of the house of the deceased, a pen torch was lying and he signed in Exhibit P18 mahazar.

27. PW27 is residing at Pallipuram. He stated that he went to the house of the accused on 26.11.2006 and witnessed the seizure of dhothi and shirt of the accused and signed in Exhibit P20 mahazar for the same. He identified MO20 shirt and MO21 dhothi.

D.S.R.No.1 of 2012 24 Crl.A.No.453 of 2012

28. PW28 is the immediate neighbour of the accused. He stated that on 26.11.2006, the accused along with the police party came to the house of the accused. PW28 stated that the police took into custody the mobile phone and certain documents. He signed in Exhibit P21 search list. He identified the seized documents as Exhibits P22, P23 and P24.

29. PW29 witnessed the recovery of MO9 pieces of the earthen hundial by the accused from Morathodu. He stated that the accused disclosed to the police the place where pieces of the hundial were put. He is a fisherman. As directed by the police, the witness searched in the thodu and took out MO9 series. PW30 is a witness to Exhibit P25 mahazar prepared in respect of seizure of MO9 series.

30. PW31 was working as the Causality Medical Officer D.S.R.No.1 of 2012 25 Crl.A.No.453 of 2012 at Little Flower Hospital, Angamaly, on 3.10.2006. On that day, he examined PW2 Ramakrishnan and issued Exhibit P26 wound certificate and Exhibit P27 discharge certificate. PW32 Dr.Ignatious treated PW2 Ramakrishnan and conducted a surgery. He stated that the patient (PW2) was in mechanical ventilator for few days. PW33, Professor of Forensic Medicine, Government Medical College, Thrissur, conducted the postmortem examination of the deceased on 4.10.2006 and issued Exhibit P28 certificate. He proved Exhibit P28 certificate.

31. PW37 is the Scientific Assistant, FSL Unit. He examined the scene of occurrence and collected 8 items from there and handed over to the investigating officer for chemical analysis as per Exhibit P32. He stated that he conducted preliminary examination and benzidine test. PW39, the police D.S.R.No.1 of 2012 26 Crl.A.No.453 of 2012 dog handler stated in evidence that on 4.10.2006, he took the dog to the place of incident. The dog after smelling the iron rod, lunki, door handle etc., went out and stopped near Morathodu.

32. PW44 registered Exhibit P1(a) FIR. PW45 is the Assistant Chemical Examiner. He stated that he detected human blood in items 5, 9 and 11 to 28 mentioned in Exhibit P37 report. Items 11 to 28 are the dress materials, pillows, beds etc.

33. PW46 was the Sub Inspector of Police, North Paravoor Police Station, for the period from 17.8.2006 to 12.10.2007. He was a member of the investigation team headed by the Dy.S.P. He stated that he got secret information that the accused was involved in the incident. Accordingly, he started watching the accused and the accused was found to live in luxury. He was found using a Maruti Van.

D.S.R.No.1 of 2012 27 Crl.A.No.453 of 2012

34. PW47 was the Circle Inspector of Police, Vadakkekara Police Station for the period from 17.8.2006 to 23.10.2007 and he took over investigation on 14.5.2007 as directed by the Dy.S.P. PW48 was the DY.S.P.(Administration), Aluva. He took over investigation on 4.10.2006. He narrated the various steps taken in the investigation.

35. There is no dispute that the deceased Baby alias Devaky and her husband Ramakrishnan were residing together in the house in question. It is also not disputed that Baby alias Devaky was found dead and Ramakrishnan was found seriously injured in the said house. The evidence of PWs.1, 4 and 5 would amply prove these aspects. The medical evidence in the case would prove that death of Baby alias Devaky was not natural. Exhibit P28 postmortem certificate shows that the deceased sustained the following ante-mortem injuries. D.S.R.No.1 of 2012 28 Crl.A.No.453 of 2012

"1. Chop wound, 5x5cm.xbone deep around left forearm 26 cm.

below elbow. The muscles, vessels, nerves and forearm bones were found cut. There were two cuts involving the radius in the distal segment measuring 2x2x2 cm., 3x2.5xthrough and through.

2. Incised looking lacerated wound 7x1.5cm.xbone deep placed front to back over the left side of head its front end 8 cm. above left ear and 7.5 cm. outer to midline.

3. Incised looking lacerated wound 8x1.5cm.xbone deep placed front to back over the left side of head its front end 3.5 cm. behind left eyebrow at its outer 1/3rd and 6 cm. outer to midline.

4. Incised looking lacerated wound 3.5x1cm.xscalp deep placed front to back almost lower oblique over the left side of head the back end just above pinna of ear.

5. Incised looking lacerated wound 3x0.7cm.x0.3cm. overlying the outer 1/3rd of left eyebrow.

6. Contusion 1.5x1cm.xdermal thick over the right eyebrow at its inner 1/3rd.

7. Contusion 5x3 cm.x dermal thick over the front of left arm 5 cm. above elbow.

8. Contusion 4x4cm. dermal thick over the inner aspect of left elbow."

D.S.R.No.1 of 2012 29 Crl.A.No.453 of 2012

36. PW33, who conducted the postmortem examination, opined that injury No.1 was sufficient in the ordinary course of nature to cause death, along with the cumulative effect of injury Nos.2 to 5.

37. PW31 examined Ramakrishnan (PW2) at Little Flower Hospital, Angamaly. PW32 stated in evidence that PW2 underwent a surgery at the hospital. The patient was in ventilator for a few days. PW31 noted the following injuries in Exhibit P26 wound certificate.

"(1) Patient was in on unconscious stage. (2) Cut wound left frontal area about 8 cm. long. (3) Multiple patchy areas of abrasions, peeled skin over back glutial areas right scapular area bout 12 hours old. (4) Echimosis both eyes.

(5) Head injury.

D.S.R.No.1 of 2012 30 Crl.A.No.453 of 2012 (6) Depressed fracture frontal bone.

(7) Bilateral frontal bone fractures."

PW31 stated in evidence that injury Nos.5, 6 and 7 are grievous in nature and fatal. He stated that these injuries are sufficient in the ordinary course of nature to cause death of the victim. According to PW26, injury Nos.2, 4, 5, 6 and 7 could be caused by MO16 iron bar.

38. The case rests on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must be cogently and firmly established. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the D.S.R.No.1 of 2012 31 Crl.A.No.453 of 2012 conclusion that within all human probability the crime was committed by the accused and none else ; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. See Ashok Kumar Chatterjee v. State of Madhya Pradesh, 1989 KHC 725 : AIR 1989 SC 1890 : 1989 Supp (1) SCC 560 : 1989 SCC (Cri) 566 ; Gambir v. State of Maharashtra, 1982 KHC 461 : AIR 1982 SC 1157 : 1982 (2) SCC 351 : 1982 SCC (Cri) 431 : 1982 CriLJ 1243 : 1982 MLJ D.S.R.No.1 of 2012 32 Crl.A.No.453 of 2012 (Cri) 396 ; Rama Nand v. State of Himachal Pradesh, 1981 KHC 76 : AIR 1981 SC 738 : 1981 KLT SN 39 : 1981(1) SCC 511 :

1981 SCC (Cri) 197 : 1981(2) SCR 444 : 1981 Cri LJ 298 :

1981 MLJ (Cri) 241 ; Prem Thakur v. State of Punjab, 1982 KHC 512 : AIR 1983 SC 61 : 1982 (3) SCC 462 : 1983 SCC (Cri) 88 ; Earabhadrapa v. State of Karnataka, 1983 KHC 388 :

AIR 1983 SC 446 : 1983 (2) SCC 330 : 1983 SCC (Cri) 447 :

1983 CriLJ 846 ; Gian Singh v. State of Punjab, 1987 KHC 1182 : AIR 1987 SC 1921 : 1986 Supp SCC 676 : 1987 SCC (Cri) 223 ; Balvinder Singh v. State of Punjab, 1987 KHC 812 : AIR 1987 SC 350 : 1987 (1) SCC 1 : 1987 SCC (Cri) 27 : 1987 CriLJ 330 ; State of U.P. v. Dr. Ravindra Prakash Mittal, 1992 KHC 874 : AIR 1992 SC 2045 : 1992 (3) SCC 300 : 1992 SCC (Cri)

642.

39. The evidence of PW12 shows that on 30.9.2006, a D.S.R.No.1 of 2012 33 Crl.A.No.453 of 2012 stranger stealthily entered into her house during night. PW12 saw a man near her bed room. She identified the accused as that person. MO1 torch and a mobile phone were stolen from her house on that night. PW12 complained to the police about the theft. Accordingly, Crime No.157 of 2006 was registered at Puthenvelikkara Police Station for the offences under Sections 457, 461 and 380 of the Indian Penal Code. The same MO1 torch was found at the rear side of the house of the deceased.

The evidence of PW26, PW48, PW40 and Exhibit P18 mahazar corroborate the fact of the presence of MO1 torch at the rear side of the house of the deceased.

40. Ramakrishnan, the husband of the deceased gave evidence that his wife used to wear six golden bangles, chain and rings. The gold ornaments were lost on the fateful night on which the deceased was murdered. Ramakrishnan also stated D.S.R.No.1 of 2012 34 Crl.A.No.453 of 2012 that the earthen hundial and cash kept in the pooja room were also lost. PW3, the son of the deceased, also gave evidence to the effect.

41. The accused was arrested on 23.11.2006. The investigating officer recorded the confession statement of the accused wherein he stated that if he were to be taken, he would show the finance shop where he pledged the ornaments and later sold those ornaments. The accused led the investigating officer to Thomson Bankers, Chalakkudy owned by PW17. Six gold bangles (MO8), two rings (MO6 & MO7) and a chain (MO5) were recovered. PW17 gave evidence that on 2.10.2006, the accused came to his shop and pledged MO5 to 8 gold ornaments and received `51,000/-. After a few days, the accused came to the shop of PW17 again and demanded some more amount. Since 90% of the maximum amount payable on pledge was D.S.R.No.1 of 2012 35 Crl.A.No.453 of 2012 given to the accused, PW17 refused to pay any money. The accused sold those ornaments to PW17 and received `10,000/- more. PW18, PW19 and PW20, the employees in the shop of PW17 also testified the same and they proved the register, receipts and other documents relating to the pledge and sale of gold ornaments. They stated that the accused identified his signature in the register and other documents. PW17 to 20 identified the accused as the person who pledged and later sold MO5 to MO8 series ornaments to PW17.

42. The address given by the accused while pledging the ornaments at Thomson Bankers was Babu, Pottokaran House, Koodapuzha, Chalakkudy. That was really the address of the brother-in-law of the accused, who when examined as PW22 stated that he had not pledged the ornaments at Thomson Bankers and Enterprises.

D.S.R.No.1 of 2012 36 Crl.A.No.453 of 2012

43. PW25, the wife of the accused, though turned hostile to the prosecution, admitted that the signature in Exhibit P5 is that of her husband. The court below compared the signatures in Exhibit P5 with the signatures in Exhibits P4(a), P6, P7 and P8 and came to the conclusion that all the signatures therein seem alike. We have also made such a comparison and we are also of opinion that all the signatures seem alike. Thus it can be seen that the evidence of PW22 and PW25 would corroborate and strengthen the evidence of PW17 to PW20, the owner and employees of Thomson Bankers.

44. PW2, the husband of the deceased, identified MO5 to MO8 series ornaments.

45. On the basis of the confession statement made by the accused and as led by him, the investigating officer went near D.S.R.No.1 of 2012 37 Crl.A.No.453 of 2012 Morathodu, a canal situated near the house of the deceased. PW29 testified that he heard the accused saying to the investigating officer that he had put the remnants of the earthen hundial in Morathodu. As requested by the investigating officer, PW29 searched in Morathodu at the place shown by the accused and recovered the pieces of the earthen hundial there. PW29 identified those pieces (MO9 series). The investigating officer also testified about these aspects while examined as PW48. PW30 is the witness to Exhibit P25 mahazar prepared in respect of the recovery of MO9 series. The evidence of PW39, the police dog handler proves that during investigation, the police dog, after smelling the weapons of offence and the articles found at the residence of the deceased, went near Morathodu and stood at the place. PW2 and PW3, the husband and son of the deceased, stated that there was an earthen hundial in the pooja room and after the incident, it was not seen there. From the D.S.R.No.1 of 2012 38 Crl.A.No.453 of 2012 evidence of PW29, PW30, PW39, PW48, PW2 and PW3, it is proved that the earthen hundial in the house of the deceased was stolen and the pieces of the same were recovered in the presence of and as pointed out by the accused, from Morathodu, to which place the police dog went after smelling the weapons of offence and other blood stained articles.

46. PW11 stated in evidence that on the previous day of the incident, his bicycle was stolen by somebody.

47. PW16, a retired PWD Overseer, resides about 1= kms. away from the house of the deceased. On 2.10.2006, a shirt and pants belonging to him and which were put for drying on the terrace of his house were missing. Later, he saw and identified the shirt at the police station. He identified the shirt as MO19. That shirt was produced by the wife of the accused D.S.R.No.1 of 2012 39 Crl.A.No.453 of 2012 (PW25) before the police and seized as per Exhibit P50 seizure mahazar prepared at the house of the accused. Though PW25 turned hostile to the prosecution, the evidence of the investigating officer would prove the seizure of MO19 shirt from the house of the accused.

48. The evidence of PWs 9 and 12 would show that for the construction of the house of PW12, a contract for concreting was taken by PW9. His tools and materials were placed in the work site itself. MO16 iron bar was stolen from the work site. PW9 stated that he identified the iron bar at the police station. His evidence also would show that he could not straight away identify the same in court due to passage of time. PW48 stated that MO16 was recovered from the well in the residential compound of the deceased.

D.S.R.No.1 of 2012 40 Crl.A.No.453 of 2012

49. PW13 stated that a chopper, mobile phone, watch, umbrella, shirt, purse, R.C.Book and insurance paper in respect of his vehicle were stolen on 28.9.2006. The chopper (MO17) was purchased by his wife when PW14 brought the same for sale at the school where she was working. PW14 stated in evidence that MO17 was manufactured by him. He sold MO17 to Swapna teacher at Thuruthikkara High School. PW13 and PW14 identified MO17. The investigating officer gave evidence that MO17 was recovered from the well in the compound belonging to the deceased.

50. The evidence of PW37 (Scientific Assistant, FSL Unit) and Exhibit P32 report shows that MO16 and MO17 were blood stained weapons. However, Exhibit P37 Report of Analysis prepared by PW45 does not mention that on MO16 and MO17, traces of human blood was detected. PW45 stated that D.S.R.No.1 of 2012 41 Crl.A.No.453 of 2012 moisturous blood stains would reduce the survival time of enzyme and antigen in the blood. He stated that the weapon was rusted at the time of examination. It has come out in evidence that MO16 and MO17 were recovered from the well. Therefore, non detection of the presence of human blood on those weapons would not be fatal to the prosecution.

51. The discovery of weapons of offence, broken pieces of earthen hundial, and the ornaments from Thomson Bankers have been duly proved by the prosecution. There is no material to suspect the veracity of the same. That the accused pledged the ornaments of the deceased at Thomson Bankers is also proved beyond any doubt. PW12 identified the accused as the person who trespassed into her house during the night of 30.9.2006. She identified the accused in the identification parade conducted on 26.7.2007. PW12 identified the accused in D.S.R.No.1 of 2012 42 Crl.A.No.453 of 2012 court also. MO1 torch was stolen from her house. That torch was found on the rear side of the house of the deceased.

52. Motive becomes relevant when the prosecution case rests on circumstantial evidence. It has been proved in the case that the accused pledged the gold ornaments of the deceased and PW2 at Thomson Bankers. Those ornaments were recovered on the basis of the information given by the accused in his disclosure statements. The evidence in the case shows that the amounts raised by the accused by pledging and selling the gold ornaments were utilised by him for purchasing a Maruti Omni Van. Thus it is clear that the motive for the crime was to commit robbery.

53. When the Criminal Appeal came up for hearing, the learned Public Prosecutor produced a chart showing the details D.S.R.No.1 of 2012 43 Crl.A.No.453 of 2012 in respect of the criminal antecedents of the accused, copy of which was served on the learned counsel for the accused. Details of 23 cases were shown in the chart, in which, in six cases (including the present case) he was convicted. It was argued on behalf of the accused that he was not properly heard by the court below on the question of sentence. A Division Bench of this Court took the view that further examination of the accused is needed on some material aspects of the case including the question of sentence. Accordingly, the accused was produced before the High Court and he was questioned. The accused answered the questions. He stated that 18 cases were registered against him and at the time of examination, only five cases were pending. The accused stated that he was the accused in five murder cases and three cases for escaping from the jail. He also stated that apart from these cases, in five cases, he was convicted.

D.S.R.No.1 of 2012 44 Crl.A.No.453 of 2012

54. Sri.Ranjith Marar, the learned counsel for the appellant/accused, submitted that the following points arise for consideration. (i) The original of Exhibits P5 and P7 could only be the computer hard disc, Exhibits P5 and P7 being computer print outs. (ii) In Exhibit P9 mahazar, the admissible part of confession statement is marked as Exhibit P9(a), which does not mention the name of Thomson Bankers or Thomson Enterprises. Therefore, the discovery cannot be a valid discovery under Section 27 of the Indian Evidence Act. (iii) MOs.5 to 8 (gold ornaments) were not properly identified. (iv) The evidence of PW25, the wife of the accused, was relied on by the court below to arrive at the conclusion that the signature in Exhibit P5 is that of the accused. This is a communication which is hit by Section 122 of the Indian Evidence Act and hence inadmissible. (v) In the facts of the case on hand, the presumption could only be that the accused is either the thief or the person who has received D.S.R.No.1 of 2012 45 Crl.A.No.453 of 2012 stolen property - not that the accused committed the murder. (vi) MO18 purse contained several articles like photographs, diary etc. The photographs and diary were not produced in the case.

(vii) This is not a fit case where capital sentence could be awarded. (viii) Previous conviction of the accused was not properly proved under Section 298 of the Code of Criminal Procedure.

55. Sri.Tom Jose Padinjarekkara, the learned Public Prosecutor countered the arguments of Sri.Ranjith Marar and submitted that there is no ground to interfere with the conviction and sentence. He submitted that the case comes under the category of rarest of rare cases.

56. According to the learned counsel for the appellant/accused, Exhibits P5 and P7 are inadmissible in D.S.R.No.1 of 2012 46 Crl.A.No.453 of 2012 evidence since the requirements of Section 65B of the Indian Evidence Act are not satisfied. The learned counsel relied on the decision in Anvar.P.V. vs. P.K.Basheer and others : (2014) 10 SCC 473. In Anvar.P.V. vs. P.K.Basheer : (2014) 10 SCC 473, it was held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. It was held that in the case of CD, VCD, chip etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

57. In paragraph 24 of the decision in Anvar.P.V. vs. P.K.Basheer and others : (2014) 10 SCC 473, it was held thus :

"24. The situation would have been different had the appellant adduced primary evidence, by D.S.R.No.1 of 2012 47 Crl.A.No.453 of 2012 making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section D.S.R.No.1 of 2012 48 Crl.A.No.453 of 2012 65-B of the Evidence Act."

58. Exhibits P5 and P7 constitute primary evidence. Those documents contain the signatures of the accused. Exhibits P5 and P7 were seized by the investigating officer as per Exhibit P11 seizure mahazar. Therefore, Exhibits P5 and P7 are admissible in evidence without complying with the conditions in Section 65-B of the Evidence Act.

59. The contention of the accused is that the discovery of MO5 to MO8 gold ornaments from Thomson Bankers is inadmissible in evidence since the confession statement does not contain mention of Thomson Bankers. The admissible part of the confession statement reads thus : ".fK 5bG_fA^Ia gI^O^W >^X XbVH^MxCBZ ICO" fUAa5Oa" I_K`?m U_WAa5Oa" f:Oq K_H^XXm 5? 5^C_:na Dx^"." As led by the D.S.R.No.1 of 2012 49 Crl.A.No.453 of 2012 accused, the investigating officer went to Thomson Bankers and MO5 to MO8 were discovered. The requirement of Section 27 of the Indian Evidence Act is that the information given by the accused must relate distinctly to the fact discovered. The accused had pledged the ornaments at Thomson Bankers. He stated that he would show the place where the ornaments were pledged. The accused took the investigating officer to Thomson Bankers. The owner of Thomson Bankers identified MO5 to MO8 as the ornaments pledged by the accused. The accused was present at Thomson Bankers at that time. Thus it can be seen from the evidence that the ingredients of Section 27 of the Evidence Act are satisfied.

60. In State Government of NCT of Delhi v. Sunil and another : 2001 SCC (Cri) 248, the Supreme Court held thus :

"21. We feel that it is an archaic notion that D.S.R.No.1 of 2012 50 Crl.A.No.453 of 2012 actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to the unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case."

61. MOs.5 to 8 (gold ornaments) were properly D.S.R.No.1 of 2012 51 Crl.A.No.453 of 2012 identified by PW2 Ramakrishnan (husband of the deceased) and his son PW3. There is nothing to disbelieve the evidence of PW2 and PW3. The contention of the accused in this regard is unsustainable.

62. The next question to be considered is whether the identification of the signature of the accused in Exhibit P5 by his wife (PW25) is hit by Section 122 of the Evidence Act. Section 122 reads as follows :

"122. Communications during marriage :- No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other."

D.S.R.No.1 of 2012 52 Crl.A.No.453 of 2012

To attract Section 122, the disclosure should be of a communication. Identification of the signature of the husband by his wife, in a document which is sought to be proved, does not amount to disclosure of a communication within the ambit of Section 122 of the Evidence Act. Signature is not a communication.

63. In Ram Bharosey v. State of Uttar Pradesh : AIR 1954 S.C. 704, the question was whether the evidence given by the wife of the accused was hit by Section 122 of the Evidence Act. For the sake of convenience, we extract the following discussion and finding in Ram Bharosey v. State of Uttar Pradesh : AIR 1954 SC 704.

"(3) .....................................The first contention has reference to certain statement which the appellant is alleged to have made to his wife. She D.S.R.No.1 of 2012 53 Crl.A.No.453 of 2012 was examined on behalf of the prosecution as PW2 as she deposed as follows :

"I awoke in the morning and saw that my husband was coming down the roof. Thereafter he went inside the Bhusa Kothri. He came out of the Bhusa Kothri and had a bath on the 'nabdan' after becoming naked. After this he wore on the same dhoti, which he was wearing before taking his bath. He sat at home after his bath and said to me that he would give me Chail Choori, Lacha, Kara and Zangir........I had asked him where he had gone at about 'moonhandherey', and he replied that he had gone to the middle house in order to get cheez." The middle house referred to in this deposition is the house in which Manna was living. The argument of the appellant is that his statements to PW2 that he would give her jewels, and that he had gone to the middle house to get them were inadmissible under Section 122 of the Evidence Act, being communications made to his wife. This is plainly so, and the Courts below ought not to have taken this evidence into consideration.

(6) Firstly, there is the evidence of PW2 that D.S.R.No.1 of 2012 54 Crl.A.No.453 of 2012 the accused was seen in the early hours of the 27th May 1952 while it was still dark, coming down the roof of his house that he went to the bhusha kothri and came out again and had a bath and put on the dhoti again. This is not inadmissible under Section 122, as it has reference to acts and conduct of the appellant and not to any communication made by him to his wife. Secondly, there is the fact that among the articles delivered by him to PW18 at the time of the investigation on the morning of the 27th was a blood-

stained gandasa."

64. For the reasons mentioned above, we reject the contention of the accused that the evidence of PW25 regarding the signature of the accused in Exhibit P5 is hit by Section 122 of the Evidence Act.

65. It is well settled that in cases where robbery and murder are so connected as to form parts of the same D.S.R.No.1 of 2012 55 Crl.A.No.453 of 2012 transaction, the recent and unexplained possession of the stolen property will not only be presumptive evidence against the accused on the charge of robbery but also on the charge of murder. (See: Palan v. State : 1973 KLT 886; Kuttappan v. State of Kerala : 1960 KLT 829; Baiju alias Bharosa v. State of Madhya Pradesh : (1978) 1 SCC 588; Mukund alias Kundu Mishra and another v. State of M.P. (1997) 10 SCC 130)

66. In Ganesh Lal v. State of Rajasthan : (2002) 1 SCC 731, the Supreme Court held :

"15. A review of several decisions of this Court, some of which we have cited herein above, leads to the following statement of law. Recovery of stolen property from the possession of the accused enables a presumption as to commission of offence other than theft or dacoity being drawn against the accused so as to hold him a perpetrator of such other D.S.R.No.1 of 2012 56 Crl.A.No.453 of 2012 offences on the following tests being satisfied : (i) the offence of criminal misappropriation, theft or dacoity relating to the articles recovered from the possession of the accused and such other offences can reasonably be held to have been committed as an integral part of the same transaction ; (ii) the time-lag between the date of commission of the offence and the date of recovery of articles from the accused is not so wide as to snap the link between recovery and commission of the offence ; (iii) availability of some piece of incriminating evidence or circumstance, other than mere recovery of the articles, connecting the accused with such other offence ; (iv) caution on the part of the court to see that suspicion, howsoever strong, does not take the place of proof. In such cases the explanation offered by the accused for his possession of the stolen property assumes significance. Ordinarily the purpose of Section 313 of the Code of Criminal Procedure is to afford the accused an opportunity of offering an explanation of incriminating circumstances appearing in prosecution evidence against him. It is not necessary for the accused to speak and explain. However, when the D.S.R.No.1 of 2012 57 Crl.A.No.453 of 2012 case rests on circumstantial evidence the failure of the accused to offer any satisfactory explanation for his possession of the stolen property though not an incriminating circumstance by itself would yet enable an inference being raised against him because the fact being in the exclusive knowledge of the accused it was for him to have offered an explanation which he failed to do."

67. In Earabhadrappa alias Krishnappa v. State of Karnataka : (1983) 2 SCC 330, it was held thus :

13. "....................................The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under Illustration (a) to Section 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts..................." D.S.R.No.1 of 2012 58 Crl.A.No.453 of 2012

68. In the case on hand, the deceased was murdered and in the same transaction, her ornaments were stolen. Her left palm was chopped, evidently for the purpose of removing the bangles. Some other gold ornaments and cash were also stolen away. The incident took place between the night of 1.10.2006 and early hours of 2.10.2006. The evidence shows that the accused pledged those gold ornaments at Thomson Bankers on 2.10.2006. The owner and the employees of Thomson Bankers identified the accused as the person who pledged the gold ornaments. The accused denied that he pledged the ornaments at Thomson Bankers. It has come out in evidence that the accused purchased a Maruti Omni Van utilising the amounts raised by the pledge and subsequent sale of the ornaments. In the facts and circumstances of the case, it can be safely held that murder and robbery formed part of the same transaction D.S.R.No.1 of 2012 59 Crl.A.No.453 of 2012 and the person who committed the robbery committed the murder also.

69. The learned counsel for the accused submitted that non-production of the articles found in MO18 purse would make the recovery under Exhibit P17 seizure mahazar suspicious. All the details with respect to the photo, diary and other papers found in the purse were mentioned in Exhibit P17 mahazar. Non production of those articles, which are insignificant, would not make the prosecution case doubtful.

70. The learned counsel for the appellant/accused had raised a contention that the previous conviction of the accused was not properly proved under Section 298 of the Code of Criminal Procedure and that the admission by the accused while he was examined before the High Court would not be a D.S.R.No.1 of 2012 60 Crl.A.No.453 of 2012 substitute for proof under Section 298 of the Cr.P.C. Section 298 of the Cr.P.C. reads as follows:

"298. Previous conviction or acquittal how proved .- In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force,-

(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order, or

(b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered.

together with, in each of such cases evidence as D.S.R.No.1 of 2012 61 Crl.A.No.453 of 2012 to the identity of the accused person with the person so convicted or acquitted."

In the present case previous conviction was not proved in the manner provided in clauses (a) or (b) of Section 298 Cr.P.C..

71. The learned Public Prosecutor filed a memo stating the details of the cases in which the accused was involved and the cases in which he was convicted. That statement would not constitute proof as provided in clauses (a) and (b) of Section 298 of the Cr.P.C.. As stated earlier, when a contention was raised by the accused before the High court that he was not properly heard on the question of sentence by the court below, this Court directed the accused to be present for further examination "on some material aspects including the matters relating to the question of sentence".

D.S.R.No.1 of 2012 62 Crl.A.No.453 of 2012

72. While examined before the High Court, the accused stated that he was involved in 18 cases that at present five cases are pending. He stated that he was involved in five murder cases and in three cases for escaping from the jail. He also stated that he was convicted in five cases. The question is whether the statement made by the accused while examined before this Court would be a substitute for proving the previous conviction in accordance with Section 298 of the Cr.P.C. Such a statement made by the accused while he was examined does not constitute proof of previous conviction under clause (a) or clause (b) of Section 298 of the Cr.P.C.. Section 298 of the Cr.P.C. contains an expression "in addition to any other mode provided by any law for the time being in force". So long as the prosecution has not brought out any material in evidence on the side of the prosecution about any previous conviction, answers given while examined under Section 313 Cr.P.C. that D.S.R.No.1 of 2012 63 Crl.A.No.453 of 2012 the accused was convicted previously in several cases would not be a substitute for proof under Section 298 of the Cr.P.C. An accused would be examined under Section 313 Cr.P.C. to afford him an opportunity personally to explain the circumstances appearing in the evidence against him. The examination of the accused under Section 313(1)(b) should be after the witnesses for the prosecution have been examined and before the accused is called on for his defence. It is true that proceedings for confirmation under Section 367(1) Cr.P.C. amount to an extended trial as held in Jumman v. State of Punjab (AIR 1957 SC 469) and State of Maharashtra v. Sindhi alias Raman (AIR 1975 SC 1665). But in the present case, the statements made by the accused about his previous conviction was not in answer to the materials produced by the prosecution in evidence in accordance with law. A voluntary statement by the accused that he was previously convicted D.S.R.No.1 of 2012 64 Crl.A.No.453 of 2012 would not be a substitute for the proof under Section 298 of the Cr.P.C. Therefore, we are inclined to accept the contention of the accused that the statements made by him while examined before this Court cannot be taken into account for the purpose of proof of conviction under Section 298 of the Cr.P.C.

73. On a reappraisal of the evidence in the case, we are satisfied that the prosecution has succeeded in establishing the circumstances from which an inference of guilt can be drawn against the accused. The circumstances so proved constitute a complete chain which unerringly point towards the guilt of the accused and those circumstances are inconsistent with any hypothesis other than that of the guilt of the accused. The circumstances proved in the case are only consistent with the guilt of the accused and inconsistent with his innocence. D.S.R.No.1 of 2012 65 Crl.A.No.453 of 2012

74. The next question to be considered is about the sentence to be awarded to the accused. To award a proper sentence under Section 302 of the Indian Penal Code, the following circumstances available in the case are relevant. The accused committed murder of a woman for committing robbery. Her husband was seriously injured and the accused committed an offence under Section 307 of the Indian Penal Code as against him. The offence was committed in a preplanned manner. The gold ornaments belonging to the deceased and her husband were pledged by the accused and later sold and that money was utilised for the luxury of the accused. The accused even chopped the palm of the deceased for the purpose of robbing the bangles which she was wearing. While committing robbery, the accused committed murder of a helpless woman who was sleeping in her house. The offence was committed not on any spur of a moment or on provocation. D.S.R.No.1 of 2012 66 Crl.A.No.453 of 2012 The offence was committed in a most cruel and inhuman manner.

75. In Swamy Shraddananda v. State of Karnataka :

(2008) 13 Supreme Court Cases 767, the Supreme Court considered the question of sentencing in a case where death sentence was not awarded by the Supreme Court and it was held thus :

"92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the D.S.R.No.1 of 2012 67 Crl.A.No.453 of 2012 same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e., the vast hiatus between 14 years' imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all.

93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of D.S.R.No.1 of 2012 68 Crl.A.No.453 of 2012 having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh v. State of Punjab (1980) 2 SCC 684 : 1980 SCC (Cri) 580 besides being in accord with the modern trends in penology."

76. On the basis of these principles, the Supreme Court in Swamy Shraddananda's case substituted the death sentence given to the appellant by the trial court and confirmed by the High Court by imprisonment for life and directed that the accused shall not be released from prison till the rest of his life.

77. Taking into account the principles laid down in Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka : (2008) 13 SCC 767 ; Birju v. State of Madhya Pradesh : (2014) 3 SCC 421 ; Santosh Kumar Satish Bhushan D.S.R.No.1 of 2012 69 Crl.A.No.453 of 2012 Bariyar v. State of Maharashtra : (2009) 6 SCC 498 ; Tattu Lodhi alias Pancham Lodhi v. State of Madhya Pradesh :

(2016) 9 SCC 675 ; Shankar KisanRao Khade v. State of Maharashtra (2013) 5 SCC 546 ; Alber Oraon v. State of Jharkhand : (2014) 12 SCC 306 ; Bachan Singh v. State of Punjab : (1980) 2 SCC 684 ; Aloke Nath Dutta and others v.

State of West Bengal : (2007) 12 SCC 230 ; Mohinder Singh v. State of Punjab : (2013) 3 SCC 294 ; and Ramnaresh and others v. State of Chhattisgarh : (2012) 4 SCC 257, we are of the view that the present case does not come under the category of rarest of rare cases. Therefore, we are of the view that the accused in the present case is not liable to be sentenced to death for the offence punishable under Section 302 of the Indian Penal Code. For the offences under Sections 449, 392 read with Section 397, 394 and 307 of the Indian Penal Code, the sentence awarded by the court below is just and proper. D.S.R.No.1 of 2012 70 Crl.A.No.453 of 2012

78. For the aforesaid reasons, we set aside the sentence to death imposed on the accused and sentence the accused to undergo imprisonment for life and direct that he shall not be released from prison till the rest of his life. We confirm the conviction and sentence awarded to the accused by the court below for the offences under Sections 449, 392 read with Section 397, 394 and 307 of the Indian Penal Code.

Accordingly, we allow Crl.Appeal No.453 of 2012 to the extent of substituting the sentence of death to a sentence of imprisonment for life with a condition that the accused shall not be released from prison till the rest of his life. We dismiss Crl.Appeal No.453 of 2012 with respect to the conviction and sentence of the appellant for the offences under Sections 449, 392 read with Section 397, 394 and 307 of the Indian Penal Code.

D.S.R.No.1 of 2012 71 Crl.A.No.453 of 2012

The Death Sentence Reference is answered in the negative and against the prosecution, to the extent indicated above.

K.T.SANKARAN Judge RAJA VIJAYARAGHAVAN.V. Judge csl

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