Kerala High Court
Raghunathan vs State Of Kerala on 12 January, 1995
Equivalent citations: 1995CRILJ1880
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT P.V. Narayanan Nambiar, J.
1. Reghunandhan, convicted of an offence under Sections 392 and 302, IPC, preferred this appeal, challenging his conviction and sentence.
2. Prosecution story is unfolded by P.Ws. 1 to 16. Deceased Nani, aged 72, lost her husband long ago. She had three sons and a daughter. All the children were staying away. Nani was residing alone in Muttampattupeedikayil house. P.W. 9, who is a relation of deceased Nani, is also residing in the neighbourhood. Every day they used to meet each other. On 6-4-1989, the day on which deceased Nani was murdered, she (Nani) was in the house of P.W. 9 till about 7.30 p.m.
3. The accused/appellant was a native of Mulackuzha and for about two years prior to the incident, he was staying with his relative P.W. 14 at Kuttamperoor, where deceased Nani was also residing. The accused needed money in connection with the Kavady festival of Parayarukavu temple. Though the accused was working in a brick kiln, the amount he got out of his work was not sufficient to meet his requirements. The accused who knew very well that deceased Nani was residing alone in her house, sneaked into the compound of the deceased and hid himself in the urinal shed. When deceased Nai sat for passing urine outside the urinal, the accused came out of the urinal shed and caught her by her neck with his hands; pressed her down on to the floor and using her own lungi strangulated her. The gold ornaments, i.e., ear studs, ring, bangle and chain were removed from her by the accused.
4. On the succeeding day, i.e., on 7-4-1989, the accused went to the house of P.W. 3 Sivankutty in a car and with the help of P.W. 3, the ear studs were pledged with P.W. 4 who issued Ext. P2 certificate. The gold rings, bangle and chain were entrusted to P.W. 7, owner of Sree Parvathy jewellery for the purpose of re-making.
5. On 21-4-1989, the accused was arrested by P.W. 16 the investigating officer and on the basis of the confession made by the accused, M.O. 3 ear studs and M.O. 4 gold rings which were worn by the deceased were recovered from P.Ws. 4 and 7 retrospectively. The gold bangle and chain could not be recovered as such as the same were melted by P.W. 7 for the purpose of re-making. The ingot, M.O. 5, was also recovered from P.W. 7.
6. In the course of hearing the appeal, learned Public Prosecutor filed Crl. M.O. 3007 of 1994 under Sections 311, 391 and 482 of Code of Criminal Procedure praying for issuance of summons to P.Ws. 2, 12 and 16 and to examine them before this-Court further. This application was opposed by counsel for the appellant. After hearing both sides and having an anxious consideration of the matter involved, we thought that the application should be allowed and an opportunity should be given to the prosecution for examining the witnesses mentioned above. We found that while P.W. 2 was examined, it was not brought out from her the direction in which her house is situated vis-a-vis the house of deceased Nani. Even the approximate distance between the two houses was also not brought out in the course of evidence. P.W. 12, the village officer, who prepared Ext. P9 plan was also not shown the house of P.W. 2. Exts. P6 and P 13 are the mahazars in which the relevant portions of the confession made by the accused which led to the recovery of M.Os. 3 to 5 are incorporated. Though the relevant portions are marked as Exts. P6(a) and P13(a), those portions were not deposed to in Court by P.W. 16 and hence those portions did not form part of the evidence.
7. A Full Bench of this Court in State v. Ammini, (1987) 1 Ker LT 928 : (1988 Cri LJ 107) (FB) has pointed out that in strict compliance with Section 27 of the Evidence Act, the investigating officer should have deposed to the words of the accused which distinctly led to the fact discovered and the words attributed to the accused must find a place in the deposition of the witness. Considering all those aspects, we over-ruled the objections of counsel for the accused that additional evidence at the appellate stage would only fill up the lacuna in the prosecution evidence. There was, in fat, no lacuna in the prosecution case, but it was only the omission of the Public Prosecutor who conducted the case in the trial Court. Such omission cannot be termed as a lacuna in prosecution case. Lapse on the part of Public Prosecutor is one thing and the lacuna in the prosecution case is yet another.
8. This Court in Suja P. Chacko v. State of Kerala, (1994) 1 Ker LT 148: (1994 Cri LJ 292) has considered this aspect in an elaborate judgment and held that whenever the interest of justice demands, additional evidence could be adduced at the appellate stage and the Court should permit it to be introduced. Otherwise, it will lead to injustice. We affirm the said principle.
9. Before this Court, P.Ws. 2, 12 and 16 were re-examined. P.W. 12 also produced a sketch plan showing the house of P.W. 2. The sketch plan is marked as Ext. P9(a). The accused was furnished with a copy of the same and he was given full opportunity to cross-examine all the witnesses summoned. He was also questioned under Section 313 Cr.P.C. in respect of the additional evidence recorded by this Court. His arguments were further heard.
10. It is a case where there is no direct evidence to connect the accused with the crime. As the case is to be proved by circumstantial evidence, we have carefully analysed the different circumstances projected by the prosecution which lead to the inference pointing to the guilt of the accused.
11. P.W. 15, Dr. Sivasuthan, conducted postmortem examination on the body of the deceased and issued Ext. P11 certificate. His evidence shows that all the injuries found on the person of the deceased were ante-mortem arid he opined that the deceased died of ligature strangulation. He has also deposed before the Court that the death of Nani was by ligature strangulation and could have been caused between 36 to 72 hours before he conducted the autopsy between 1.10 p.m. and 2.30 p.m. on 8-4-1989. There is no serious challenge on this point. So, we conclude that death of Nani was the result of homicidal ligature strangualtion.
12. Now we come to the other circumstances: P.W. 2 who is residing about 150 metres west of the house of deceased Nani has deposed that on 6-4-1989 at about 7.45 p.m. she saw the accused going towards the house of the deceased and after sometime returning to the same direction from which he came. P.W. 2 is a witness who knew the accused intimately for over two years prior to the incident. According to her, the accused used to visit her shop to take tea. She further deposed that when she asked who it was, the accused gave a cryptic reply. But, being a person regularly visiting her shop, P.W. 2 could confirm that it was accused himself as she heard his voice and saw the gait of walking. This witness was cross-examined at length, but nothing was brought out to disbelieve her. The Court below has chosen to believe her and we also find no reason to differ from it.
13. P.W. 3, Sivankutty, is a close friend of the accused who is residing near the house of the accused. He deposed that on 7-4-1989 at about 7 a.m. the accused came to his house in a car. The witness asKed the accused for a loan of Rs. 50/-. Then the accused told P.W. 3 that he had no money with him, but that he was in possession of some gold ornaments which they could either sell or pledge. P.W. 3 and the accused together approached P.W. 6 (Subrahmonian Achari) in the same car. P.W. 6 weighed the ear studs (M.0.3) and told them that he could not purchase the same as he was not haying enough money with him. All of them then proceeded to Chengannur and tried to sell the same, but that attempt also failed. Then they returned to Mulackuzha and decided to pledge the same with Erattakulangara Bank. P.W. 3 along with the accused went to the Bank owned by P.W. 4. M.0. 3 studs were pledged in the name of P.W. 3. The reason for pledging the same in the name of P.W. 3 was also explained by him. P.W. 4 was not prepared to accept the studs if they were pledged in the name of the accused who was not known to him and that was why it was pledged in the name of P.W. 3. Ext. P2 (the receipt issued by P.W. 4) shows that the ear studs were pledged with P.W. 4 for Rs. 1,150/-. P.W. 4, Managing Partner of Erattakulangara Bank, fully confirmed the above evidence. P.W. 6 also supported the versions of P.W. 3.
14. P.W. 7, Rajappan Achari, is the person with whom the accused entrusted M.0.4 gold ring, gold bangle and chain with a request for re-making the ornaments. Ext. P5 was the receipt issued by him in his own hand writing and signature. He deposed that he melted the bangle and chain and the ingot was recovered by the investigating officer as M.O. 5. M.0.4 gold ring was also recovered by the investigating officer.
15. The recovery of M.Os. 3 to 5 and Exts. P2 and P5 were made by P.W. 16 on the strength of the statement made by the accused. On an anxious consideration of the evidence of P.W. 16 and also of the attesting witnesses to the mahazars, we are persuaded to believe that those ornaments were recovered pursuant to the statement made by the accused.
16. P.W. 1 (the son of the deceased), P. Ws. 8 and 9 clearly identified M.Os. 3 and 4 gold ornaments as those belonged to the deceased. Their evidence shows that the gold bangle and chain were usually worn by the deceased and even on the date of death deceased was wearing them.
17. Recovery of incriminating articles pursuant to the information given by the accused is an important piece of evidence against him. The nature of the recovered articles, the manner of the acquisition by the accused, on the basis of whose information they were recovered, length of the intervening period between the disappearance of the articles from the owner and its recovery are some of the crucial aspects to be adverted to by the Court (see the decision in Mohan Kani v. State of Kerala, ILR (1993) 1 Ker 745). The gold ornaments of the deceased worn immediately prior to her death were found in the possession of the accused a few hours after the death of the deceased. The accused was not in a position to explain how he happened to be in possession of those ornaments.
18. The cumulative effect of all the above circumstances is that we can confidently hold that it was the accused who murdred the deceased.
We dismiss the appeal ,and confirm the conviction and sentence.