Abhilash vs State Of Kerala Represented By on 22 December, 2009

[Cites 10, Cited by 1]

Kerala High Court

Abhilash vs State Of Kerala Represented By on 22 December, 2009

Aggrieved by the conviction and sentence imposed on the accused in Sessions Case No.1430 of 2008, on the file of the Principal Sessions Court, Thiruvananthapuram, under Sections 302, 392 and 201 of the Indian Penal Code, (for short, IPC), he has filed this appeal.

2. We heard Sri.B.Raman Pillai, learned Senior Counsel for the appellant and Smt.Ambika Devi, learned Senior Public Prosecutor.

3. Shorn off the unnecessary details, the prosecution case, as borne out from the final report, is as follows:

On 02.09.2005 after 11 am, the appellant, with an intention to commit robbery and murder of his grandmother Muthammal, administered some drug to tranquilize her and gagged her with MO-8 towel and robbed her gold ornaments. On account of the asphyxiation resulted from the gagging, Muthammal died. In order to cause disappearance of the evidence of the crime, he buried the dead body of Muthammal near a coop adjacent to their residential building. It is therefore alleged that he has committed the aforementioned offences. Crl.Appeal No.595/2010 2

4. In order to prove guilt of the appellant, 17 witnesses were examined on the side of the prosecution and Exts.P1 to P35 were marked. Material objects are Mos 1 to 25. No defence evidence was adduced. Exts.D1 to D3 contradictions in the case diary statements were marked.

5. Sri.Raman Pillai, the learned Senior Counsel, contended that the court below committed error in the matter of appreciation of evidence and also in applying the principles of law to the facts of this case. Per contra, the learned Public Prosecutor would contend that the court below correctly appreciated the evidence and there is no reason to interfere with the conviction and sentence imposed on the appellant.

6. We shall consider the nature and quality of evidence adduced by the prosecution in this case before dealing with the legal aspects.

7. It is worthy to be pointed out that this is a case resting solely on the circumstantial evidence. Ext.P1 is the FIS. PW-1 is the informant. He is none other than the paternal uncle of the appellant. Stated differently, he is the son of Muthammal and brother of PW-2, Crl.Appeal No.595/2010 3 who is father of the appellant. PW-1 worked abroad for some time. Five years before the incident, he came down and settled at his native place. Ext.P1 was lodged on 23.12.2005 at about 8 am. It is mentioned in Ext.P1 that his mother Muthammal, aged about 73 years, went missing from 02.09.2005 onwards. At that time, she was residing in the house of PW-2 alongwith his family members. Immediately before that, Muthammal was residing with PW-1. It is specifically mentioned in Ext.P1 that deceased Muthammal used to stay alternately with all her children. On 02.09.2005 at about 7 o' clock in the evening, PW-2 contacted PW-1 over phone and enquired whether their mother had come to his home. When PW-1 said that she did not come to his house, PW-2 insisted that PW-1 should immediately meet him. PW-2 informed him that on 02.09.2005, PW-2 had gone to his hollow bricks factory at Vembayam and his wife had taken her mentally ill daughter to a physician at Ayoor. A boy (PW-3) then resided in PW-2's house had gone to school. At that time, deceased Muthammal and the appellant were left alone in the house of PW-2. At about 5 pm on the above date, when PW-2's wife and daughter came back, they were informed by the appellant that Muthammal had gone to a hospital for plucking a decayed tooth. Muthammal was a regular visitor in various temples. PW-2, after a reasonable time, enquired with his siblings and other relatives in Crl.Appeal No.595/2010 4 order to trace out the location of Muthammal. According to the statement in Ext.P1, PW-2 waited for Muthammal, believing that she would come back on one day. It is further mentioned in Ext.P1 that they have advertised in newspapers about missing of Muthammal. She was clad in a white saree and a doted blouse at the time when she disappeared. She was wearing a gold chain, weighing 5 sovereigns and had a ring. Besides, she was wearing two gold studs. These are the averments in Ext.P1.

8. In order to support the averments in Ext.P1, the prosecution relied on the testimony of PWs 1 and 2. PW-1 is the informant. He deposed about the relationship between the appellant and PW-2. He asserted in chief examination that from 02.09.2005 onwards, Muthammal was not seen by any of the family members, who would naturally have seen her. As stated in Ext.P1, PW-2 informed him over phone on 02.09.2005 that their mother Muthammal was not seen. It has come out in evidence that PW-1 was aware about the disappearance of Muthammal on 02.09.2005 itself. But the FIS was lodged only on 23.12.2005. The explanation offered for delay is that both PWs 1 and 2 were making frantic searches for Muthammal in their own way and also by publishing in newspapers. It is the testimony of PW-2 that on the date of her disappearance, the Crl.Appeal No.595/2010 5 appellant was the only family member present alongwith her in his house. PW-2 had gone to his hollow brick factory and his wife and daughter had gone to visit a physician. It has come out in evidence that PW2's daughter (sister of the appellant) was having some psychiatric problems and she used to take medicines. When enquired with the appellant about the whereabouts of Muthammal, he stated prevaricating versions. On one occasion, he informed that deceased Muthammal had gone to pluck an aching tooth. On another occasion, he informed that she went out packing up her dresses. It is the definite version of PWs 1 and 2 that they made a fervent search in various temples and relatives' houses. Testimony of PW-2 regarding these aspects clearly tally with that of PW-1. PW-2 further stated that Muthammal resided with him for attending to his daughter's delivery. It has come out in evidence through the testimony of these two witnesses that PW-3 Sivaprasad, a school boy at that time and a distant relative of PWs 1 and 2, was also residing in PW-2's house. He had gone to school on the date of Muthammal's disappearance. PW-2, father of the appellant, also testified that when Muthammal did not return, he questioned the appellant and he in turn answered that she had gone out with her apparels. Both PWs 1 and 2 satisfactorily explained the delay in lodging FIS by stating that they were hopeful to find out Muthammal by making enquiries to various relatives and Crl.Appeal No.595/2010 6 getting information from temples, where Muthammal used to go on pilgrimages.

9. PWs 1 and 2 deposed in unison that PW-5 Pampa Ravi was working in PW-2's hollow brick factory. PW-5 Pampa Ravi informed them that he had requested the appellant for a financial help and the appellant informed him that he had no cash in hand, but he could hand over certain gold ornaments to PW-5, either for sale or pawn. On hearing this version from PW-5 Pampa Ravi, both PWs 1 and 2 felt a suspicion. According to PW-1, this suspicion was passed on to Police. That lead to arrest of the appellant.

10. PW-2 also deposed that PW-5 Pampa Ravi had approached him for a loan, which PW-2 could not give as he had no cash. Later, PW-5 informed PW-2 that he received some gold ornaments from the appellant and PW-5 realised the proceeds by sale of the gold ornaments. PW-2 also deposed that this evoked suspicion in his mind. To this extent, both PWs 1 and 2 support one another.

11. These witnesses were cross examined at length. PW-1 deposed in cross examination that his mother Muthammal went to PW-2's house one month prior to her disappearance. Although that Crl.Appeal No.595/2010 7 was sought to be proved as an omission, we do not find any reason to treat it as a material omission. Fact that Muthammal had gone missing from the house of PW-2 is indisputable. Both PWs 1 and 2, in cross examination, clearly answered that they enquired about Muthammal at various places including their siblings and relatives. Delay in furnishing FIS has been satisfactorily explained by PWs 1 and

2. PW-1 further stated in cross examination that during his visits to PW-2's house in the interregnum, he did not find any reason to suspect that Muthammal could have been killed. It is the assertion of PWs 1 and 2 in tandem that both of them together purchased gold ornaments for their mother when they were working abroad. It has clearly come out from the testimony of these witnesses that they were competent to identify the ornaments worn by the deceased. Despite challenge in the cross examination, both PWs 1 and 2 have deposed that they were capable of identifying the ornaments seen on the dead body.

12. PW-2's testimony is in complete agreement with that of PW-1. It is true that there is some divergence in PW-2's statement regarding the time at which he had gone out on 02.09.2005. But we do not find any reason to hold that PW-2 was present in his house after 10 o' clock on 02.09.2005. He deposed that his wife and Crl.Appeal No.595/2010 8 daughter had gone to meet a physician after his departure from home. At the time of cross examination, PW-2 deposed that his mother used to wear gold ornaments occasionally and also when she went out. Otherwise, she used to keep the ornaments safely in her possession. As stated by PW-1, PW-2 also deposed that they purchased the ornaments for her from gulf.

13. PW-2 denied the suggestion in cross examination that Exts.P3 and P4 prescriptions showing the treatment of his daughter were fabricated for the purpose of this case. Even though a suggestion was put in the cross examination that PW-2 was inimical to his son (the appellant), it was stoutly denied by him. On an appraisal of the evidence of PWs 1 and 2, we find that they agreed on all material aspects without any divergence. Further, nothing is brought out to find that PW-2 deposed against the appellant with any motive to falsely implicate his own son. That apart, these witnesses identified the body of their mother Muthammal, though it was found to be in a putrefied condition. These witnesses clearly deposed that the appellant had pointed out the place where the dead body was buried. All these aspects remain credible, despite strict cross examination on these witnesses.

Crl.Appeal No.595/2010 9

14. Another star witness for the prosecution is PW-3 Sivaprasad. During the missing of Muthammal, he was residing with PW-2. In the chief examination, PW-3 deposed that his family was in financial difficulty at that time and therefore, he resided with PW-2 and family. He used to render help to the household activities and also he pursued studies. He was attending a tuition class at 7 am. Thereafter, he used to attend the regular classes in the school. By 4 o' clock in the evening, he usually returned home. PW-3 testified in chief examination that on 02.09.2005, PW-2 had gone out at about 6 o' clock in the morning. PW-3 also stated that PW-2 had gone to his factory. Thereafter, PW-2's wife and daughter alongwith her child had gone out to visit a physician. Then he went out to attend the tuition class. It is the definite version of PW-3 that when all of them had gone out, the appellant and deceased were the only persons left in the house. PW-3 deposed that when he returned, she did not find Muthammal in the house. He asked the appellant where Muthammal had gone. The appellant informed PW-3 that as she suffered tooth ache, she went to a hospital and from there she would have gone to her daughter's house. It is the testimony of PW-3 that when he persistently asked the appellant about Muthammal, he became irritated and answered that he killed and buried her. But PW-3 did not take it seriously. PW-3 further deposed in chief examination that Crl.Appeal No.595/2010 10 on 02.09.2005, the appellant himself had done all the household jobs and he had taken bath when PW-3 had seen him in the evening. He had put all the poultry in a nearby coop. PW-3 stated that earth from the coop used to be changed every week. On 02.09.2005 also, the appellant had removed earth from the coop as part of cleaning. PW-3 candidly deposed that the dead body was recovered as shown by the appellant buried in the coop, adjacent to PW-2's house. He further stated that he had given a statement under Section 164 Cr.P.C. before the Judicial First Class Magistrate, Attingal.

15. This witness was cross examined extensively. During the cross examination, PW-3 deposed that two weeks after 02.09.2005, the appellant rebuked him for repeatedly asking about Muthammal. PW-3 thought that the appellant was cracking a joke that he had killed her and therefore, he did not inform others about this conversation. PW-3 asserted that he saw PW-2 going out on 02.09.2005 and thereafter, his aunt (PW-2's wife)alongwith her daughter and child had gone out. It is his unchallenged version that only thereafter he had gone out. His testimony is to the effect that when all the household had left, the appellant and Muthammal were alone present in the house. To a definite question whether PW-2 was inimical to the residents in the neighbourhood, both PWs 2 and 3 deposed that there Crl.Appeal No.595/2010 11 was no hostility or cordiality between the family members of PW-2 and neighbours. In spite of cross examination on this witness, nothing could be brought out to show that PW-3 was falsely implicating the appellant. His assertion that he had gone to PW-2's house on the date of exhumation of the body of Muthammal remains credible. This fortifies his assertion that the appellant was present at the time when the body was exhumed. Testimony of this witness also lends support to the testimony of PWs 1 and 2.

16. PW-4 Vijayamma knew deceased Muthammal. She had acquaintance with PW-2 also. She is a neighbour of PW-2. She also stated that from 02.09.2005 onwards, Muthammal was not seen. At about 9.30 am on the said date, she saw Muthammal alongwith the appellant coming back home. They were returning after purchasing fish. PW-5 deposed that thereafter she did not see Muthammal. In cross examination, it is brought out from PW-5 that she was not a regular visitor in the house of PW-2. She further stated that PW-2's household were not very cordial with neighbours. It is the testimony of the material witnesses that PW-2 was residing in a compound having an extent of about one acre. PW-4 stated that she had no idea as to who were the persons regularly visiting PW-2's house. This witness was sighted to prove that the deceased was last seen in the Crl.Appeal No.595/2010 12 company of the appellant. The merit of that contention will be examined in the subsequent paragraphs. However, from the evidence of PWs 1 to 3, it can be seen that the appellant was present in PW-2's house alongwith Muthammal when all the other inmates had gone out for various purposes.

17. PWs 5, 7 and 8 were examined to prove the recovery of gold ornaments belonged to the deceased. Although there is an allegation that the deceased was wearing studs too at the time of disappearance, they were not recovered. MOs 1 and 2 are the gold chain and gold ring respectively recovered to implicate the appellant.

18. PW-5 Pampa Ravi alias Reveendra Chettiyar is a distant relative of PW-2. He was engaged by PW-2 in connection with the construction of hollow bricks factory. PW-5 deposed that he was undertaking sub contracts for some works in Sabarimala. Whenever he needed money for contract work, he used to borrow it from individuals. He had borrowed Rs.10,000/- from PW-2 prior to the incident. Out of that, Rs.5,000/- was returned. He had to return balance of Rs.5,000/- with interest. PW-5 again requested PW-2 for some amount. At that time, PW-2 informed that he had to return the balance outstanding and then only a further loan would be given. Crl.Appeal No.595/2010 13 PW-5 demanded money from PW-2 in the presence of the appellant. PW-5 had acquaintance with the appellant as had worked together in the hollow bricks factory and also in their farm land. When PW-5 told the appellant about his inability to take a contract work due to dearth of funds, the appellant informed him that he had also worked 3 years abroad and he possessed a gold chain and ring. Appellant instructed PW-5 to sell the ornaments and take whatever money he needed. It has come out in evidence that the appellant intended to advance money to PW-5 on loan basis. PW-5 was authorised by the appellant to sell the ornaments and take Rs.20,000/- out of the proceeds and he had to return balance to the appellant. It is also deposed by this witness that the appellant was unhappy over the fact that his father (PW-2) made no payment to him for working in the factory. PW-5 contacted his friend Ani and through him, he met PW-8 Mukesh. Alongwith PW-8, he went to the jewellery run by PW-7 Murugan. The gold ornaments handed over by the appellant were sold for Rs.27,900/-. PW-5 insisted that PW-7 should give a slip showing phone number of the shop, weight and price of the ornaments to convince a friend. PW-5 testified that he handed over the slip given by PW-7 to the appellant. But he could not pay balance money to appellant as the latter and his father (PW-2) were making preparations for a Sabarimala pilgrimage. Out of the money realised Crl.Appeal No.595/2010 14 by sale of the gold ornaments, PW-5 paid off the liability of PW-2. PW-5 deposed that PW-2 insulted him on account of delay in repaying the loan. When PW-2 questioned PW-5 about the source of money, he revealed that the appellant had given some gold ornaments for sale. It appears that his revelation evoked suspicion in the minds of PWs 1 and 2 about involvement of the appellant in the crime. These matters were informed to Police and thereafter, the appellant was arrested. PW-5 also identified MOs 1 and 2.

19. During cross examination, PW-5 adhered to his versions in the chief examination. No dent or discredit could be made in his previous statement. He deposed that PW-2 was a money lender. Suggestion that the appellant did not entrust any ornament to PW-5 for sale has been denied by him. It is his assertion that the appellant entrusted ornaments from hollow bricks factory. It is brought out in cross examination that PW-5 told different versions regarding ownership of the gold ornaments to different persons. The defence case is that PW-7 was running an ornament making unit and not a jewellery. To this query, PW-5 deposed that he had no idea about the nature of job undertaken by PW-7. It is his definite version that he could not hand over money to the appellant after taking Rs.20,000/- from the sale proceeds. According to PW-5, he handed over only Crl.Appeal No.595/2010 15 Ext.P5 receipt to him issued by PW-7 indicating the weight and price of the ornaments.

20. PW-8 Mukesh gained acquaintance with PW-5 through their common friend Ani. PW-5 informed PW-8 that he wanted to sell some gold ornaments. PW-8 was working in a jewellery at Nedumangad during that period. He introduced PW-5 to PW-7 Murugan and the former sold gold ornaments to the latter. The ornaments were recovered by Police and he is a witness to Ext.P8 seizure mahazar. In cross examination, he admitted that he did not notice any special features for identifying the ornaments recovered through Ext.P8. His previous statement given to Police that PW-5 informed him that the ornaments belonged to him was denied by PW-8. That portion of the CD statement is marked as Ext.D3. Despite proving Ext.D3, it is clear that through PW-8 only PW-5 had sold ornaments to PW-7. PW-7 Murugan was the owner of Bombay Gold Testing, a shop where he made gold ornaments for other jewellers. It is also stated that he used to purchase gold ornaments in auction conducted by banks and financial institutions. PW-7 deposed that PW- 5 sold MOs 1 and 2 in his shop on 26.10.2005 and he paid Rs.27,900/- as the price for the ornaments. As insisted by PW-5, he executed Ext.P5 slip showing the price, weight, etc. relating to the ornaments. Crl.Appeal No.595/2010 16 He also deposed that PW-8 Mukesh introduced PW-5 to him. When cross examined, this witness stated that he did not keep any registers for proving the business transacted in his shop. PW-8 deposed that when Police recovered MOs 1 and 2 from his shop, he got a document executed by PW-5 undertaking to recompense. It is his version that after one month, PW-5 had paid off the liability. The defence has a case that no such version was spoken to by PW-5. However, that is not a material issue to discard the consistent testimony of PWs 5, 7 and 8.

21. In order to prove the prosecution case that the appellant himself had pointed out the place where Muthammal's dead body was buried, the prosecution relied on the testimony of PWs 6, 12 and 13 apart from PW-17, the Investigating Officer. PW-6 is an attester to Ext.P6 inquest report. He is a witness to Ext.P7 scene mahazar too. In cross examination, he stated that he is a distant relative of PW-2.

22. PW-13 was the Tahasildar, Chirayinkeezhu. During the relevant period, he was officiating in the above post. He exhumed the body of Muthammal, as per the orders passed by Sub Divisional Magistrate, Thiruvananthapuram. He deposed in cross examination that the inquest was conducted in his presence.

Crl.Appeal No.595/2010 17

23. PW-12 Dr.Sreedevi conducted the postmortem examination on the exhumed body of Muthammal. She issued Ext.P11 certificate. The contents thereof have been proved through this witness. It can be seen from Ext.P11 that the body was buried in soil at a depth of 69 cm. When the body was exhumed, the following features were noted:

"Mud particles were seen sticking all over the body. Eyeballs were seen collapsed. A dirty light pink thorthu was seen kept in side the mouth with a portion 39 cm long seen outside the mouth (vide infra). External genetalia was decomposed. Hymen absent. Vaginal wall was soft, lax and decomposed. Anal mucosa was prolapsed. Postmortem loss of tissue seen at nostrils (vide infra). Other external body orifices were decomposed.

Sockets of incisors of the upper jaw, lateral incisors of lower jaw, second left premolar and third molar of upper jaw were open. Erosion of the edges of the alveolar margin of incisors of the left upper jaw and lateral incisor of left side of lower jaw were present. Attrition seen at the outer aspect of tooth number 15 and partial loss of crown of the back part of tooth number 44. Sockets of remaining teeth were recorbed. Biting surface of the teeth present showed severe degree of attrition. Peridontosis was seen moderately. Teeth numbers 43 and 44 showed close apposition. Five teeth were found lying loosely in the oral cavity. Coronal and sagittal sutures of skull were fused internally and externally. Crl.Appeal No.595/2010 18

Whitish fungus was seen at places on the body. Both lower limbs were abducted at hips and flexed at knees. Outer four toes of right foot and right little finger were missing (postmortem loss).

Rigor mortis was absent. Postmortem staining was not clear due to decomposition changes. Varying shades of putrafactive discolouration seen all over the body. Partial skeletonisation seen on the forehead, scalp, fingers, toes and top of right foot. Left thumb nail found in a loosened state and found in situ. Another nail seen loosened on the left hand. Three nails were seen loosened on the right hand, superficial skin was seen peeled off except on the available portions of scalp. Scalp hair were 38-48 cm long wavy black and occasional greying which were loosely adherent to scalp tissue. The soft tissues on the lower portions of limbs were dry and shrivelled and firmly adherent to the bones."

24. PW-12 has specifically noted the anti-mortem injuries in Ext.P11 as follows:

"1. Contusion 10x4x0.3 cm on the left side of head, adjacent part of forehead and temporal area just outer to outer border orbit.

2. Contusion 5x1.5x0.3 cm on the middle and right side of inner aspect of upper lip across the midline. Sockets of teeth numbers 12 and 32 showed infiltration of blood and fracture of edge of back Crl.Appeal No.595/2010 19 margin of the socket of tooth number 32.

3. Contusion 9x5x1.5 cm on the left side of front of chest 8 cm outer to midline and 13 cm below the collarbone.

4. Contusion 10x7x2 cm on the right side of back of chest 7 cm outer to midline and 14 cm below the top of shoulder. "

25. After considering all the aspects, PW-12 opined that the postmortem findings were consistent with the fact that death was due to gagging. She reserved her final opinion pending chemical analysis report. PW-12 further deposed that she obtained the chemical analysis reports of the articles collected at the time of the postmortem examination. They are marked as Exts.P12 and P13. There was no sign of poisoning. There was no sign of sexual offence committed on the deceased. Ext.P14 is the final opinion given by PW-12 confirming that the death was due to gagging as she had ruled out any other possibility for death. The assertion of PW-12 is that gagging could have been done by insertion of MO-8 bath towel inside mouth, as mentioned in Ext.P11. In Ext.P11, it has been clearly mentioned that mouth cavity of the deceased was seen tightly packed with a dirty bath towel in light pink colour and Crl.Appeal No.595/2010 20 it was seen extending up to the back wall of pharynx. The total length of thorthu (bath towel) was 94 cm and breadth 46 cm, which was wet and slimy. On these aspects, there is absolutely no cross examination conducted on PW-12. So that her version regarding cause of death remains unchallenged.

26. PW-17, the Investigating Officer also deposed in support of the testimony of PWs 6, 12 and 13. It is his definite version that the appellant, while in custody, confessed that he would show the place where deceased Muthammal was buried, if he was taken to his compound. In the presence of the appellant, PW-17 went to the informed place and on digging by the side of a coop, he unearthed the dead body of Muthammal. PW-17 deposed that it was shown to PWs 1 and 2 and identified. In the presence of PW-12 Dr.Sreedevi, PW-13 Tahasildar and PW-14 Scientific Assistant, the inquest was conducted. It is the definite version spoken to by PW-17 that the body was found out from a place pointed out by the appellant and at that time, PWs 12, 13 and 14 along with other witnesses were present. Learned Senior Counsel raised an argument that none of those witnesses testified about pointing out of the body by the appellant. We shall deal with that aspect in the following paragraphs. Ext.P24 is the Crl.Appeal No.595/2010 21 confession made by the appellant while in custody. There are two facts revealed from the confession. Firstly, he mentioned that Muthammal's body was buried on the western courtyard of his house and he would show the place, if taken. Secondly, he confessed about the sale of MOs 1 and 2 to Pampa Ravi (PW-5) and he could point out PW-5. First part of the confession regarding burial of the dead body was confirmed by subsequent event when it was exhumed. This confession has been properly proved by PW-17. Presence of the appellant at the time of exhumation of Muthammal's body is clearly spoken to by PWs 1 and 2.

27. Sri.Raman Pillai, the learned Senior Counsel contended that the prosecution did not elicit through PWs 12, 13 and 14 that the appellant was present at the time of exhumation of Muthammal's body. Smt.Ambika Devi, the learned Public Prosecutor, relying on Ext.P6 inquest report, which was proved by PW-17, contended that this contention of the defence is incorrect. Ext.P6 inquest report shows that the postmortem examination, inquest, etc. were done after exhuming the body in the presence of PW-12, Dr.Sreedevi, who conducted the postmortem, PW-13, Tahasildar, Chirayinkeezhu, and PW-14, Dr.Sreekumar, who submitted Ext.P15 FSL report. The specific statement in Ext.P6 that these witnesses were present at the Crl.Appeal No.595/2010 22 time of inquest has not been challenged. Similarly, when PW-2 was questioned at the time of inquest, he asserted that the dead body was exhumed from the place pointed out by the appellant. The fact that, the appellant pointed out the place, where body of Muthammal was buried, has been asserted in oral evidence by PWs 1 to 3. Therefore, the contention of the appellant that there was no recovery of body under Section 27 of the Evidence Act on his disclosure is unacceptable.

28. Principle underlying Section 27 of the Evidence Act, as it is well settled, is the confirmation of a fact by subsequent events. It is the definite case of PW-17, the Investigating Officer, that the appellant, while in custody, made two confessions; one about burying the dead body of Muthammal inside the coop and the other about sale of gold ornaments through PW-5 Pampa Ravi. Regarding discovery of the body as per the information furnished by the appellant while in custody, it is to be held that the fact has been proved by digging out the dead body from the place shown by the appellant and also by the clear testimony of PW-17. In other words, PW-17 has deposed to the fact the appellant confessed about burying the body of Muthammal inside the coop, which was confirmed by subsequent exhumation. Hence, the court below rightly relied on Section 27 of the Evidence Crl.Appeal No.595/2010 23 Act to find that the appellant was fully aware of the presence of dead body at the place pointed out by him.

29. Insofar as the recovery of gold ornaments on the basis of the confession by the appellant is concerned, it has to be held that the necessary link was not established by the prosecution evidence. According to PW-17, the appellant confessed that he would show PW-5 Pampa Ravi to whom the gold ornaments were handed over. There is no evidence adduced by the prosecution to hold that PW-5 Pampa Ravi was identified on the showing of the appellant. It has come out in evidence through PWs 1 and 2 that they had furnished information to Police about receipt of gold ornaments from the appellant by PW-5. In order to attract Section 27 of the Evidence Act, it must be established that the Investigating Officer got an information regarding the discovery of a relevant fact from the appellant while in custody. In this case, even before arresting the appellant, information about handing over of gold ornaments by the appellant to PW-5 was known to the Investigating Officer through PWs 1 and 2. Therefore, the basic requirement of Section 27 of the Evidence Act is not satisfied in the case of recovery of MOs 1 and 2.

30. Learned Senior Counsel contended that the court below Crl.Appeal No.595/2010 24 wrongly relied on the theory of 'last seen together' to implicate the appellant in the crime. There is some force in this contention. Going by the evidence adduced by PW-4, it is seen that on 02.09.2005, at about 9.30 am, she saw deceased Muthammal and the appellant returning home after purchasing fish. Prosecution raised a contention that the appellant must have committed the crime subsequent to 11 o' clock on the said day. From the testimony of PW-4 that she saw them on a public road, it is not discernible whether any person other than the appellant and the deceased was present in their home wherefrom the alleged act of murder had taken place. Therefore, merely by relying on the testimony of PW-4, it cannot be held that the deceased was last seen in the company of the appellant. The fact that at the time of the incident the appellant and deceased were alone present in the house gains attention through the testimony of PWs 2 and 3, that all the inmates in PW-2's house had gone out. Notwithstanding the failure of the prosecution to establish the theory of last seen together through the testimony of PW-4, we are of the view that the cumulative effect of PW-4's testimony alongwith that of PWs 1 to 3 support the prosecution case that the appellant and deceased were the only persons left in the house of PW-2 at the time of incident.

31. In recapitulation, it can be stated that the oral evidence Crl.Appeal No.595/2010 25 adduced by PWs 1 to 3 clearly indicate that the appellant was the only member in PW-2's house present with Muthammal on 02.09.2005 after 10 o' clock in the morning. It is also stated by these witnesses that she went missing on 02.09.2005 after all the persons, except the appellant, had gone out. When the material prosecution witnesses questioned the appellant about Muthammal's whereabouts, he prevaricated and even became irritated. PWs 1 and 2 started doubting the involvement of the appellant on the information obtained from PW-5 that the appellant had handed over MOs 1 and 2 to PW-5 for raising funds. Besides, non-receipt of any information about Muthammal, long lapse of time also evoked suspicion in the minds of PWs 1 and 2. Testimony of the independent witness, PW-3, remains blemishless despite cross examination. All these aspects lead unerringly to the complicity of the appellant in the crime. Apart from the above facts, recovery of the dead body as pointed out by the appellant to PW-17 while in custody, which was proved under Section 27 of the Evidence Act to the hilt, also reveal the involvement of the appellant in the crime. Even though recovery of MOs 1 and 2 could not be proved under Section 27 of the Evidence Act through the evidence of PWs 5, 7 and 8, it is a circumstance falling under Section 8 of the Evidence Act pointing a finger to the appellant. Crl.Appeal No.595/2010 26

32. Another important piece of evidence against the appellant is the testimony of PW-14, Dr. Sreekumar, who worked as the Assistant Director (Biology) in FSL, Thiruvananthapuram. He conducted the superimposition test on the skull exhumed from the place pointed out by the appellant. From Ext.P15, it can be seen that the skull, jaw bone, teeth-loose (in separate cover) have been sent for superimposition to FSL, Thiruvananthapuram. It is also seen from Ext.P15 that undergarments and blouse seen on the dead body were also forwarded for analysis. One shirt and a lunki belonging to the appellant recovered on his confession were also forwarded. Ext.P15 report further shows that examination of hair was done. Likewise, superimposition test was also performed with a photograph of Muthammal produced at the time of investigation. The superimposition test was performed and the report shows the following facts:

"Superimposition test Enlarged picture was made from the photograph in item no.4.

The skull, mandible and teeth in time no.1 were cleaned well and articulated in position. Anthropometric measurements were taken from the skull and mandible and the photographs. Ratios were calculated and found tallying.

Crl.Appeal No.595/2010 27

The skull and mandible in item No.1 was then fixed on to a craniophore with the same rotation and flexions as measured from the photograph in item 4 and subjected to video superimposition test. The observations were as given below.

(1) The eye balls were within the orbital cavities. (2) The eye brows corresponded to the upper orbital margins.

(3) The root of nasal bones corresponded to the point nasion.

(4) The nasal spine was just above the tip of the nose. (5) The upper alveolar margin was just below the tip of the nose.

(6) Gonions corresponded to the angle of mandible. (7) Gnathion corresponded to the symphysis menti. (8) The jaw and jaw bones were congruous granting due allowance to soft tissue thickness. (9) The overall facial contour of the skull and mandible matched perfectly with that of the photograph.

Necessary photographs were taken from the video monitor."

33. It is opined in Ext.P15 report that the skull and mandible in item No.1 could have belonged to the person whose photograph was furnished as Item No.4 for conducting superimposition. It was Crl.Appeal No.595/2010 28 also found that the hairs attached on item Nos.5 and 12 are human scalp hairs which were similar to the sample scalp hairs in item No.11

(a). Indisputably, samples were taken at the time of postmortem examination, about which PW-12 spoke. The blood was unsuitable for determining the origin and group due to putrefaction.

34. Ext.P16 contained photograph of Muthammal, alongwith various tests in superimposition of skull done with the aid of the photograph. Ext.P17 is the copy of photograph sent for examination. Even though the defence raised an argument that there is no material to hold that Ext.P17 was the photograph of Muthammal, this contention cannot be accepted because during the time when Ext.P1 FIS was launched, her photo was furnished. The records show that the Investigating Officer had come into possession of the photograph of the missing person long before the exhumation of her body. Therefore, this contention raised by the defence, as rightly pointed out by the learned Public Prosecutor, is without any merit.

35. It is pertinent to note that PW-14 testified all the details seen on Exts.P15 to P17. There is absolutely no cross examination on this witness. In other words, there is no challenge made either against the testimony of PW-14 or against the documents proved Crl.Appeal No.595/2010 29 through him. This is also a circumstance against the appellant as it has come out in evidence that body of Muthammal was exhumed from a coop, as pointed out by him.

36. Learned Senior Counsel vehemently argued that the prosecution witnesses, who deposed against he appellant regarding his involvement in the crime, cannot be believed. As discussed above, we find no reason to discard the testimony of PWs 2 and 3 for the reason that they have, in crystal clear terms, deposed that, on 02.09.2005, after 10 o' clock, the appellant was the only household member present with Muthammal and her mysterious missing was not explained properly by him. Testimony of PW-5 also speaks about the appellant's coming into possession of the gold ornaments worn by deceased Muthammal and in the facts and circumstances, it was for the appellant to explain how he came into possession of MOs 1 and 2. Going by the tenor of cross examination, we do not find any reason to hold that PW-5, 7 and 8 falsely implicated the appellant in the crime by saying that he handed over MOs 1 and 2 ornaments for sale. These ornaments were identified by PWs 1 and 2 and their testimony remain credible despite cross examination.

37. Learned Senior Counsel contended that recovery of sarees Crl.Appeal No.595/2010 30 through Ext.P9 and recovery of dress of the appellant through Ext.P10 were not properly proved. Importance of Ext.P9 comes to the fore because the appellant had informed PW-2 and others that Muthammal had gone to a dentist and thereafter she might have gone to one of her daughter's house. Some dress materials of the deceased were packed up in a cover which was recovered through Ext.P9. Ext.P10 is the dress worn by the appellant. These recoveries may not by itself implicate the appellant, but the circumstances put together assume importance as the appellant was chalking out a plan for explaining the disappearance of Muthammal.

38. Learned Senior Counsel, relying on State of Maharashtra v. Annappa Bandu Kavatage [1980 SCC (Cri) 155] contended that break in the chain of circumstances makes the accused entitled to an acquittal. Admittedly, this is a case resting only on circumstantial evidence. The oral evidence tendered by PWs 1 to 3 indicate the circumstances under which the appellant was suspected for the disappearance of Muthammal. Subsequently, PW-5 and other witnesses connected to MOs 1 and 2 gold ornaments revealed the fact that the appellant had attempted to sell the gold ornaments worn by Muthammal. Identity of the gold ornaments was established through the testimony of PWs 1 and 2. Subsequently, the Crl.Appeal No.595/2010 31 appellant while in custody, pointed out the site from where the dead body of Muthammal was exhumed. Confession leading to the discovery of the dead body is proved through oral evidence of PWs 1 to 3 and that of PW-17. It was done in the presence of the Tahasildar, the doctor who conducted postmortem examination and the scientific assistant. The body was found to be that of Muthammal by performing scientific examination, including superimposition. Therefore, all the circumstances in this case lead only to the guilt of the appellant. Therefore, the principle in Annappa's case has no application to this case.

39. Learned Senior Counsel further relied on Roopasena Khatun v. State of West Bengal [AIR 2011 SC 2256] to contend that the appellant cannot be held responsible for the death of Muthammal. It has come out through the medical evidence and other reliable evidence that Muthammal was gagged by thrusting a bath towel into her mouth. She died due to gagging is the unquestionable opinion of PW-12. That remains unshaken also. In Roopasena's case, the facts and circumstances are entirely different and therefore, the principles laid down by the Supreme Court in those factual settings cannot be applied to this case.

Crl.Appeal No.595/2010 32

40. Relying on Nizam and Another v. State of Rajasthan [2015 CRI.L.J. 4655], learned Senior Counsel contended that due to the time gap between PW-4 seeing the appellant and the deceased, and the alleged time of occurrence, principle of last seen together cannot be applied. We already found that the last seen together theory has not been established through the testimony of PW-4 as it was not established from her evidence that the appellant and deceased were the only members available in PW-2's house when they returned home. Therefore, the decision in Nizam's case may not be relevant in this case.

41. Even though large number of decisions were cited at the Bar regarding the appreciation of circumstantial evidence, we do not intend to burden this judgment with all these citations. It is well settled that in a case resting on circumstantial evidence, the normal principle is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete, that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and the circumstances should be Crl.Appeal No.595/2010 33 incapable of any explanation other than that of the guilt of the accused and inconsistent with his innocence. This well known principle is reiterated by the apex Court in Vijay Shankar v. State of Haryana [2016 (1) SCC (Cri) 151].

42. Learned Public Prosecutor, on the other hand, contended that the circumstances established by the evidence in this case forms a complete chain leading only to the guilt of the appellant and no hypothesis of his innocence is possible. We agree with the submission of the learned Public Prosecutor and find that the circumstances established in this case form a complete chain unerringly pointing out the guilt of the appellant. The trial court has analysed the evidence correctly. Except on the matters we have dealt with above, we find that the court below is legally and factually correct in finding the appellant guilty of the offence of murder and robbery. It is also clear that motive for the murder was robbing gold ornaments which was recovered in this case. It has also come out in evidence that he caused disappearance of evidence by burying the dead body to screen himself from the clutches of law. Therefore, the court below rightly convicted the appellant for the offences punishable under Sections 302, 392 and 201 IPC. We have examined the sentence imposed by the court below and find no reason to interfere in the sentence as well. Crl.Appeal No.595/2010 34

In the result, we find that the appeal is devoid of any merit and hence it is dismissed.

SD/-

P.R.RAMACHANDRA MENON JUDGE SD/-

A.HARIPRASAD JUDGE jv

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