Anoop Khan vs State Of Kerala on 9 April, 2019

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Kerala High Court

Anoop Khan vs State Of Kerala on 9 April, 2019

This appeal is filed by the accused in Sessions Case No. 812/11 of the Additional District and Sessions Judge (Adhoc-II) Kollam, challenging judgment dated 6/3/2013 by which the accused had been convicted for having committed the murder of an employee of a Bar hotel at Kottarakkara. He has been convicted and sentenced to undergo imprisonment for life for offence u/s 302 of I.P.C. and to pay a fine of `1 lakh, to undergo rigorous imprisonment for one year and to pay a fine of `5,000/ for offence u/s 201 of I.P.C., rigorous imprisonment for three years and to pay a fine of `10,000/- for offence u/s 394 of I.P.C. with respective default sentence as well, for non payment of fine.

2. The prosecution case is that, on 21/12/2010, the accused had gone to a bar-attached hotel by name Akash hotel at Kottarakkara. He came to the hotel at 4.30 p.m and asked for the air-conditioned bar. The Manager showed him the place. He left the hotel by 6.30 p.m. and came back at around 9.30 p.m and Crl.Appeal No.843/13 -:3:- was sitting in the A/C bar consuming liquor. The deceased Gopa Kumar was the waiter. PW19 was the nephew of the deceased and he was also assisting him in the cleaning works in the bar. At 9.45 p.m. PW19 went to the mess. At that time, the accused was sitting in the A/C bar and the deceased was attending him. When he came back, he saw a man running out of the corridor to the gate. When he opened the door of the A/C bar, he found the deceased lying in a pool of blood. He came out and called aloud to catch the accused, as he was trying to escape. By the time the security heard PW19, the accused crossed the road, jumped the next compound wall and ran away. The matter was informed to the police. In the meantime, the injured was taken to the hospital and PW21, the Doctor proclaimed him dead at about 10.30 p.m. PW24 the Sub Inspector of police came to the scene. The Sub Inspector of police took PW19 along with him and went in search of accused to the bus stand and other places, but the accused could not be located. At 11.15 p.m, PW19 gave the FIS which is marked as Ext.P33. The investigation was initially conducted by PW25, and later it was made over to the CBCID and PW26 Crl.Appeal No.843/13 -:4:- continued the investigation from 5/01/2011. On 7/1/2011, PW19 identified the accused from Ext.P34, the register of Criminal Intelligence Gazette of November 2018, which contains photographs of accused involved in various crimes on the basis of which PW26 filed a report before Court as Ext.P48 naming the accused as the person who had committed the crime.

3. Accused was arrested on 8/1/2011 by PW23 in connection with another crime No. 932/2010 of Kulathupuzha Police Station. On conducting body search, the mobile phone, MO4 belonging to the deceased and MO2 knife was seized from the accused. On receiving information about the arrest of the accused, as permitted by the Magistrate, formal arrest of the accused in the present crime was recorded. PW26 obtained custody of the accused on 10/1/2011. On the basis of the confession statement of the accused, PW26 recovered a comb from the compound on the opposite side of the Bar hotel, which fell down while the accused was running from the bar. His dress used at the time of commission of the crime were recovered.

4. The Court below found that the accused was involved Crl.Appeal No.843/13 -:5:- in the crime based on the oral testimony of PW1, PW2 and PW19 and also the seizure of MO2 the knife and MO4 mobile phone. Further scientific evidence in the form of finger print was collected from the glass which was recovered from the scene of crime.

5. Learned senior counsel Sri.B.Raman Pillai appearing on behalf of the accused submitted that none has seen the accused and the evidence given by PW1, PW2 and PW19 is totally unbelievable. MO2 and MO4 were planted on the accused. There was no trace of blood in MO2 knife. No identification parade had been conducted to identify the accused. How the witnesses had identified the accused is not known. PW26 started investigation only on 6/1/2011. Until such time, no one has any clue about the accused. The IMEI of MO4 mobile phone had been obtained only when he was arrested on 8/1/2011. First of all, for want of certification under Section 65B of the Evidence Act, the call detail records cannot be relied upon. How the sample finger prints of the accused was taken has not been explained. It is pointed out that Ext.P34 register of Criminal Intelligence Gazette was Crl.Appeal No.843/13 -:6:- available even earlier and it could have been shown to PW19 even before PW26 taking over investigation, which itself proves the fact that it is after fixing the accused, that evidence had been fabricated. The police got the IMEI number of the mobile phone MO4, before 6/1/2011 as evident from Ext.P12 which would indicate that the arrest of accused was much prior to 8/1/2011. It is therefore argued that there is every possibility of manipulating evidence and the entire case has been fabricated against the accused after fixing him as an accused in the crime. Even the Court below proceeds on the basis that he is involved in other crimes as well, which has indirectly prejudiced the accused.

6. On the other hand, learned Senior Public Prosecutor Sri.S.U.Nazar appearing on behalf of the prosecution argued that this is a case where the prosecution had proved the case beyond all reasonable doubt. The mobile phone which was used by the deceased was stolen in the process of commission of crime and recovery of MO4 mobile phone is the most important incriminating factor against the accused. Further PW1 and PW19 have seen the accused. He came there at 4.30 p.m, left the place Crl.Appeal No.843/13 -:7:- and again came at 9.30 p.m. Immediately after the crime, he ran away from the scene which was seen by PW19 and PW2 the security. Even assuming that the security personnel has not seen the accused, he saw the accused running away from the scene and PW19 was watching the same. There is no necessity to conduct identification as the accused was a known criminal and his photograph was published in the register of Criminal Intelligence Gazette. The fact that no other police officer had shown PW19, the said register by itself will not indicate that PW26 had fabricated the evidence. According to him, the fact that PW19 had seen the accused is clear from the fact that when the Sub Inspector of Police came to the scene immediately after the crime, the Sub Inspector had taken PW19 along with him in search of the accused. They had gone to the bus stand and various other places in search of the accused. The Sub Inspector of police would not have taken PW19 along with him unless he was able to identify the accused. It is therefore argued that when the Court below had relied upon sufficient material to convict the accused, there is no reason why this Court should interfere in the Crl.Appeal No.843/13 -:8:- said judgment.

7. The fact that the deceased Gopa Kumar died on account of injury sustained by him on the said day cannot be disputed. PW19 has seen the deceased lying in a pool of blood. He informed the same to his Manager, PW1 who called the police. The injured was taken to the hospital. PW21 Doctor examined him and declared him dead. The death intimation Ext.P37 was issued to the police. Postmortem was conducted by PW22 and Ext.P38 is the postmortem certificate. She deposed that the deceased suffered the following injuries:-

"1. Incised puncture wound 3.5x1x7.8 cm obliquely placed on left side of front of neck, its lower inner rounded end 4.5 cm, outer to midline and 5 cm, below jaw bone. Its upper outer end was sharply cut with a tailing 2cm long directed upwards and outwards. The left sternomastoid and sternohyoid muscles and front wall of internal jugular vein were cleanly cut, the wound track was coursing downwards and to the right behind the trachea through the soft tissue and terminating there just behind its right margin. Right ventricle of heart contained blood mixed with air under pressure.

2. Lacerated wound 4x0.5x0.5cm obliquely placed on right side of back of head, its upper inner end in midline on occiput."

Crl.Appeal No.843/13 -:9:-

She further opined that death was due to the injury sustained to neck and injury No.1 is sufficient to cause death in the ordinary cause. She also stated that the injury can be caused by MO2 knife and injury No.2 could be caused due to a fall after sustaining injury No.1.

8. From the aforesaid evidence, it is clear that the death of Gopa Kumar was on account of a stab injury on the neck. The question would be whether the accused had committed the aforesaid crime.

9. The prosecution had brought sufficient materials to prove the presence of the accused at Kottarakkara during the relevant time. PW5 was the Manager of Palace Land Lodge at Kottarakkara during 2010. He identified the accused as a person who had stayed at the lodge. The register was marked as Ext.P6. Ext.P6(a) is the entry at page No.70, which is that of the accused. He deposed that it was written in the handwriting of the accused. He had taken the room on 19/12/2010 at 9.35 and vacated at 4.20 p.m on 20/12/2010. He identified the signature of the accused and Ext.P7 is the mahazar relating to the same. His Crl.Appeal No.843/13 -:10:- evidence is challenged by the defence on the ground that he is only a coolie worker. In his cross-examination, he states that he is a coolie worker and he used to go with PWD contractors. The contractor is Baby Varghese Anchal, whose work place is 10-15 kms away from Palace lodge. For the last 2-3 years, he is a regular worker. During 2010, he got `2,000/- as bonus. The owner of Palace lodge is one John. John's house is on the northern side of the stand (bus stand). He had studied till 9 th standard. He does not know how to read English. He can read Malayalam. He does not give room without knowledge of the owner. He is the employee of the contractor. He cannot say more information about Palace lodge. Documents are in the custody of his owner. He had seen the photograph of the accused in newspaper and television. But despite the argument of the learned counsel, we do not think that there is any manipulation in the records that had been produced. Even according to PW5, he used to sit as Manager during night. In other words, it was his job to be there at night. It is only a small lodge having 9 rooms. It is not a big institution which warrants a qualified person as the Manager. Crl.Appeal No.843/13 -:11:- There is no other person to conduct the lodge other than himself and his owner.

10. PW4 was running Galaxy Bhavan lodge at Kottarakkara which is near Venus theatre. He deposed that the accused had come to take a room by about 11 p.m. Room rent was Rs.175/-. Accused gave `200/-. The accused said that he was a JCB Operator. He said he had come to see his employer. Next day, over telephone, he informed that he requires a room for one more day. He offered to give him. By about 11 p.m, accused came. PW4 opened the shutter. On that day, he gave a further amount of `200/-. He had produced Ext.P4 register of Galaxy Bhavan Lodge to the police and Ext.P4(a) is the relevant entry with reference to accused as contained in Page No.154 entry No.782. He had written the same. Signature is that of the accused. He had given room No.222. Next day, accused said that he is vacating the room. Since PW4 was not in station, he called the Manager of Payyans Textile Shop and asked him to give `50/- on collecting the key. Accused had called him twice and his mobile number is 98461441944. Ext.P5 is the mahazar prepared Crl.Appeal No.843/13 -:12:- for seizing Ext.P4. According to the learned counsel for appellant, this is also a fabricated document. In cross-examination he states that he was the Manager for the last three years and he was not a full-time Manager. During morning hours, the owner will take care of it and he used to be there from 5 pm till morning when he goes for work. He had not signed Ext.P4. Lodge belongs to his cousin. There is no document to prove that he is a Manager. He had written the address. He submitted that from 772 to 781, the entries are written by the persons who had come there. He is sitting in the lodge to help his employer. Suggestion was that in a blank portion, at the instance of the police, the name of the accused was recorded. The attempt of the prosecution was to prove the presence of the accused at Kottarakkara on 21/12/2010, the date on which the incident happened.

11. PW1 is the Manager of the bar hotel. He deposed that Gopan (Gopa Kumar) the waiter died on 21/12/2010. On that day, he was having waiter duty at the A/C bar which was between 9 a.m and 11 p.m. He deposed that at 4.30 p.m the accused came to his office and asked to direct him to the A/C bar. He said Crl.Appeal No.843/13 -:13:- it was on the first floor. At 9.45 p.m he had gone to A/C restaurant. Accused was sitting there having liquor. Waiter Gopan was beside him. He came near the bar. At that time he saw the accused trying to run through the main gate and from the top of the building, he heard the cleaning boy Vishnu, PW19 shouting "uncle is stabbed, catch him". PW2 Sundaran Pillai was on duty at the main gate. He ran after the accused. Accused crossed the road, jumped the wall to the next compound which was not inhabited. When he came back to A/C bar, he saw Gopan lying face down near the seat where the accused was having his drink. In a jeep, he took Gopan to hospital. Police was informed. Police started investigation. PW19 Vishnu was doing cleaning work in the A/C bar. He was a relative of Gopan. Gopan had a mobile phone. He does not remember the number. Accused was wearing a jeans and T shirt. The T shirt was having black and red colour. He could identify the same. Gopan was wearing white shirt and black pants. The account is settled by persons in A/C bar by 11 p.m. Normally a person will have `6,000/- to `7,000/-. He does not remember that day's collection. He produced the attendance Crl.Appeal No.843/13 -:14:- register to Dy.S.P which was seized as per Ext.P1 mahazar. The attendance register is marked as Ext.P2. Gopan's attendance is marked at page 46 at 9 am. After 22/12/2010, it is recorded as 'D'. The T shirt of the accused is identified by the witness as MO1. The suggestion of the defence was that PW19 has never worked in the bar and that he was not 18 years at the relevant time. He further deposed that the A/C bar is in the first floor and they had 6 tables and 24 chairs. Normally there is no requirement to ask for A/C bar but some persons used to ask. Very few persons used to go to A/C bar. From A/C bar to gate, it would be 30 metres. If somebody calls from the first floor, it can be heard by those standing on the ground. He further stated that he does not remember whether he told the police that he saw the accused jumping over the wall. During cross-examination he further sated that after seeing the accused at 4.30 p.m. on the said day, he had seen him today. Suggestion was that on the said day, the people in the bar had created a hue and cry and in the scuffle, someone committed a mistake which resulted in the injury to Gopan. In re-examination it was clarified that since the accused Crl.Appeal No.843/13 -:15:- was there at 9.45 p.m, he had seen the accused at 9.45 also. It was argued that under normal circumstances no one will ask the Manager where the A/C bar is, as anyone could locate the A/C bar, which is very conspicuous. But in this case, PW1 says that at 4.30 the accused had come and asked where the A/C bar was. Probably it was on account of the fact that he did not find A/C bar in that floor, as it was on the first floor. There is no reason to disbelieve the version of PW1 in that regard. However, the question is that after seeing the accused at 4.30 p.m, when he deposed that he is seeing the accused in Court, it apparently may indicate that the PW1 has not seen the accused at 9.45 p.m. There may be some doubt about the said version and might be an embellishment as well.

12. At any rate, we will analyse the other evidence in order to find out whether the accused was present at the relevant time.

13. PW2 was the watcher of the bar hotel at the relevant time. He also deposed about hearing the cry of PW19 saying that his uncle had been stabbed and he saw the accused Crl.Appeal No.843/13 -:16:- running. He ran behind. The person who was running crossed the road, jumped the wall and ran away. He came back. When he went to the bar, he saw the deceased in a pool of blood. Gopan was taken by two-three persons to the hospital. He said that he saw the accused running and he identified the accused. He said that the accused was wearing a jeans and T shirt and accused was brought to the hotel. He had seen the accused in the crime branch office as well. In cross-examination, he said that he ran behind the accused and the accused jumped over the wall and ran away. During further cross-examination he deposed that when the accused ran and looked back, he saw his face which according to the defence is an omission. PW2 of course says that he had identified the accused when he looked back while he was running. Defence has an argument it is not possible to identify a person during night since PW2 was only following him and had not seen his face and PW2's version that the accused looked back was an embellishment and merely for the reason that he had looked back does not mean that he may remember the accused and therefore according to the defence, his evidence of Crl.Appeal No.843/13 -:17:- identifying the accused is not at all believable.

14. The star witness for the prosecution is none other than PW19. PW19 deposed that he was working as a cleaning boy in the said bar hotel and he was cleaning the A/C bar. He had given FI statement at 11 p.m. Ext.P33 is the FIS. He deposed that, on 21/12/2010, the accused had come to the bar between 4 and 4.30 p.m. He was in the passage of the A/C bar. Accused asked him where the A/C bar was and he showed the place. His uncle (Gopa Kumar) was the supplier in the A/C bar and family restaurant. Accused asked for food and liquor. Within 10 minutes, the same was given. He remained there for about ½- ¾ hours. He came to the passage and was telephoning some one. He was telling that he had taken room no.222. After that, he paid the bill by around 6 p.m and left the place. Thereafter, at 9.30 p.m he came back and ordered liquor. His uncle gave the same. At that time, he, the accused and his uncle alone were there in the A/C bar. After getting permission from his uncle, he went to have a coffee. He came back after half an hour. He saw the accused running through the passage in a hurry. He thought that he was Crl.Appeal No.843/13 -:18:- running without paying the bill. He went to the bar to ask his uncle and when he opened the door of A/C bar, he saw his uncle lying in a pool of blood. By the time, the accused had reached the gate. He called the gate security to catch him. He said "അയയാൾ മയാമനനെ കുതത്തിയത്തിടയാണു പപയാകുന്നതത: " (which means "he is going after stabbing uncle"). When the security tried to get hold of him, he ran across the road and jumped over the wall. By the time Bar Manager and other staff came and his uncle was taken to the hospital. After some time, police came. Police took him to the bus stand and a few other places in search of the accused. Thereafter they went to the police station and he gave the FIS. He identified the accused. He had stated to the police that the accused was a person who is tall, having sufficient hair, small mustache and clean shaven. He was wearing a red and ash coloured T-shirt and blue jeans. He identified MO1 T-shirt and MO5 jeans. He was wearing a chappal. He identified MO6 chappal of the accused. He had shown the scene of occurrence to the police. A day before police could apprehend the accused, he was shown a book and he was asked to verify whether the photograph of accused was Crl.Appeal No.843/13 -:19:- there in the book. The book shown to him is Ext.P34 and at page No.66, which is marked as Ext.P34(a), the photograph of the accused was seen. He further stated that at the time of occurrence his uncle was having a pen, opener, money and mobile. The money for food was collected and it is settled by 11 p.m. The number of mobile phone of his uncle was 9562637241. The handset was Sony Ericson. He identified MO4. The key chain with opener is identified by him as MO11. In cross examination, he stated that he is 21 years of age. He studied upto SSLC and presently he is an auto driver. He got licence at the age of 18. He was residing at the hotel itself. There are 10 to 20 suppliers in Akash Bar and in A/C bar, there is only one person. He does not supply liquor. He did not go to the hospital. He does not know who else had taken his uncle to hospital. He had been working there 1½ years before the incident. In the said room where the incident occurred, there are 7 tables and 35 chairs. There is only one A/C room. His statement was recorded in the night on 21/12/2010. He had stated that the accused had come to Akash bar at 4.30 p.m, which, according to the defence, is an omission. Crl.Appeal No.843/13 -:20:- Similarly his statement that the accused enquired him where the A/C bar was, according to the defence, is not recorded by the police. He has no explanation for it. He admitted that he had stated to the police that the accused was wearing a pant with black and ash colour and a blue T shirt with red collar, his answer was that he admitted having given such a statement, but according to him as he was worried, he had said so. He further stated that the accused was brought for taking evidence and the police had taken the dresses. In further cross examination, he stated that he had not stated to police that he overheard accused saying about room no.222 in the passage. He further stated that he had told the police that the accused was wearing VKC chappal. From the evidence of PW19 it is clear that he was not a planted witness. He was there at the relevant time. He was working as a cleaner and he had seen the accused. At 11 p.m, he had given FIS. The learned counsel for the appellant submits that there is delay in giving FIS as the police had come to the scene of occurrence immediately after the crime. But it could be seen that when the Sub Inspector of Police PW24 came, he was informed Crl.Appeal No.843/13 -:21:- that the accused had ran away from the scene. PW24 in his deposition states that he was the Sub Inspector of Kottarakkara Police Station on 21/12/2010. He received information between 10.15 and 10.30 p.m. regarding the incident at Akash bar wherein an employee suffered stab injuries. He had gone to the scene. He knew that the injured was taken to the hospital. He closed the room and arrangements were made for scene guard. He conducted a preliminary investigation along with PW19 in search of the accused. When they reached the police station, he recorded Ext.P33 FIS and registered Crime No.3200/2010. Ext.P40 is the FIR. In cross examination, he stated that enquiry was conducted in the bus stand as Vishnu (PW19) informed that he had seen the accused. At that time, statement was not recorded. Until 11 p.m., they were in search of the accused. It is thereafter the statement was recorded. On the same day, it was dispatched. He had not recovered anything from Vishnu. He admitted that Vishnu had not told him that the accused asked him about A/C bar. He also deposed that Vishnu had not told him that within ½ an hour or 45 minutes he saw the accused talking over telephone Crl.Appeal No.843/13 -:22:- and referring to room no.222 and leaving the place at 6 pm after paying the bill and he had also not given a statement that he saw the accused running hurriedly through the passage. That Vishnu had not given a statement that the accused was wearing red and ash coloured T shirt and blue jeans. Therefore, the only infirmity which is pointed out in the statement of PW19 is regarding the colour of dress of the accused and PW19 seeing the accused at 4.30 p.m and overhearing him regarding room no.222 in the verandah and PW19 stating that he saw the accused running in a panic way through the passage.

15. Before finalizing on the oral testimony of the witnesses who have alleged to have seen the accused in the scene of crime just before the incident, it would be useful to refer to other evidence as well.

16. PW3 Jijimol is a cousin of accused. She deposed that during the year 2010, she was using mobile phone with sim No.9645115969. She lost her sim card. Later it was known that the sim card was with the accused. She had come to know about it when she called in that number. Accused's father asked her to Crl.Appeal No.843/13 -:23:- permit the accused to stay in her house for a few days. She produced Ext.P3, which is a book in which she writes phone numbers. First page was written by her and the rest was written by a girl called Dhanya. In the 9 th page, the number of accused Anu(Pallikkal) is written as 9946320277. Jesna is the sister of accused. She is working in customs. In cross examination, she said that her mobile connection is taken in her brother's name, who is residing 30 kms away.

17. PW6 was the Junior Superintendent of the JFCM, Punalur. He identified Ext.P8 the letter given by CBCID in Crime No.6/2011 to examine the knife, and the Court had permitted examination of the knife as per order dated 14/1/2011. He identified the said knife as MO2.

18. PW7 has produced Ext.P9 bill book and Ext.P9(a) counter foil for sale of mobile phone having IMEI No.3532031/03160426/03. He identified the accused. He had signed Ext.P10 mahazar and the mobile set cover is marked as MO3. PW8 is a co-accused of the present accused in another crime.

Crl.Appeal No.843/13

-:24:-

19. PW9 is the wife of the deceased. She deposed that the mobile phone number of the deceased was 9562637241. The connection was in her name and, two years prior to his death, the SIM card was given to her husband. He was using Sony Ericson mobile phone. She identified the same as MO4.

20. PW10 is an attestor to Ext.P11 mahazar by which the T-shirt, jeans and chappals of the accused were recovered from the house of accused. He identified the T-shirt as MO1, jeans as MO5 and a pair of chappals as MO6 series. At the relevant time, PW10 was working as Villageman. In cross-examination, he said that he along with Village Officer had come as per the requisition of the Dy.S.P. He further stated that he does not remember from where he had signed the mahazar and he does not remember from where the Village Officer had signed it.

21. PW11 at the relevant time was working in the Cyber Cell as Cyber Crime Analyst. On 6/1/2011, he had informed the investigating officer by e-mail regarding the SIM details of mobile phone having IME No.357746022612490. The copy of the e-mail is produced as Ext.P12. Ext.P12(a) is the annexure containing the Crl.Appeal No.843/13 -:25:- phone details. As per Ext.P12(a), the SIM card used in the phone was 9947483427 in the name of Jaseena Beevi 508(8/280), Malampally House, Kattuputhusserry, Pallickal, Chirayinkeezhu. Those details were obtained from the service provider. During cross-examination he stated that requisition came by way of e- mail to the Assistant Commandant who authorises them to give the details. Ext.P12 is written manually in paper and Ext.P12(a) does not seem to be a computer entry. The details are with the service provider and when a request is made, service provider gives details.

22. PW12 is the Nodal Officer and Deputy General Manager of Idea Cellular Limited. He had given the call detail records of mobile No.9562637241 which was in the name of Sajini, 55/5, Velliyilil, Ranni (PW9). The address proof attested by him is produced as Ext.P13 and the call details, the tower location and IME number is Ext.P14. As per Ext.P14, IME number was 357746022612490. A local call was made from the phone number on 21/12/2010 at 9:11:02 p.m. He further deposed that mobile No.9947483427 was issued to Jaseena Beevi, D/o Ayub Crl.Appeal No.843/13 -:26:- Khan, Malappally House, Kattuputhusserry, Pallickal, Chirayinkeezhu. Ext.P15 is the ID proof and application form of Jaseena Beevi. Ext.P16 is the call detail records and tower location of mobile bearing IME No.357746022612490 which is the same as in Ext.P14. He further deposed that Sl.Nos.384 to 749 is for the period from 24/12/2010 to 7/1/2011. Before Sl.No.384, IME No. used was 353203031604260 and the mobile number was 9947665230 which is the mobile number issued to the accused Anoop Khan S/o Ayub Khan, 508(8/289), Moolapally House, Kattuputhuserry, Pallickal, Chirayinkeezhu. Ext.P7 series are the scan copy attested by him regarding the address proof. The call detail records, tower location and IME number is produced and marked as Ext.P18. He further deposed that Sl.Nos.103 to 116 were from 24/12/2010 to 27/12/2010 and the SIM was used in IME No.357746022612490 which is the same as that of Ext.P14. Prior to 24/12/2010, the IME number was 353203031604260. He also deposed that as per Ext.P18, Sl.Nos.94 and 95 were made on 22/12/2010. Regarding calls made from number 9846144194, he also certified that the records had been computer generated Crl.Appeal No.843/13 -:27:- which was in his possession and duly protected by password and they were attested under the provisions of the IT Act. In cross- examination, he submitted that the request was given on 01/4/2011 and it was by hand. Initially, an e-mail was sent. Thereafter they came directly. The subscriber details are available in a password protected site. The tower details have to be decoded. The call details include tower location also. As per Ext.P17 series, connection was taken on 19/1/2010. As per Ext.P16 series, number 9947483427 was used in the phone bearing IME number ending 4260 from 24/12/2010. Before that, IME number was ending 4730.

23. PW13 is the Nodal Officer of Vodafone. He had given the call details and address relating to mobile No.9946320277 which is a prepaid connection in the name of Anoop Khan 3/508, Moolampally House, Kattuputhussery, Pallickal, Thiruvananthapuram. His letter is marked as Ext.P20 and the application form and address particulars of the user of SIM card is Ext.P21 series. Mobile pre-paid no.964511596969 is in the name of one Bijumon and his application form and address are Ext.P22 Crl.Appeal No.843/13 -:28:- series. The call details, tower location, IME number etc., have been marked as Ext.P23. In Ext.P23, Sl.No.12 indicates that, on 21/12/2010, at 17:22 hrs, a call was generated from No.9645115969 to 9846144194. The IME number of the said phone was 353203031604260. The number 9846144194 is that of one Robin Thomas. The certificate under the IT Act is produced as Ext.P24. In cross-examination, he stated that the request of the details by e-mail came on 1/04/2011.

24. PW14 is the finger print expert. On the request of Sub Inspector of Police, Kottarakkara in Crime No.3200/2010, he had gone to the scene of occurrence and chance fingerprints were taken. He obtained 7 chance finger prints. He had gone to the scene on 22/12/2010. The fingerprints marked as K3 was taken from a glass tumbler. The same was verified with the fingerprint of Anoop Khan, who was arrested in Crime No..932/2010 of Kulathupuzha Police Station. He opined that the right index finger of Anoop Khan is identical to the chance finger print K3. His report is Ext.P25 and the photograph is Ext.P26. The photo of the accused is Ext.P26(a). He identified the glass tumbler as MO7 Crl.Appeal No.843/13 -:29:- series. As per Ext.P25, one fingerprint is that of Vishnu (PW19). One of the arguments raised against the identity with reference to the finger print is that there is no evidence to prove how the fingerprint of the accused was taken. In cross-examination, he stated that the fingerprint of the person was not taken from the scene of occurrence. The police had sent the fingerprint of the inmate. Police used to take fingerprint in a particular form (Form No.3G). He further stated that the accused was taken into custody in another case and fingerprints were taken. According to the defence, the evidence was cooked up as the accused was asked to drink water in the said glass and thereafter the fingerprint was taken.

25. PW15 is the Village Officer who prepared the scene plan Ext.P27. PW16 was the Scientific Assistant at District Police Office, Pathanamthitta. On 22/12/2010, as per the request of the Investigating Officer, he visited the scene of occurrence and collected blood from a pool of blood in a cotton cloth, which is marked as MO8. The unstained cloth was also collected which is marked as MO9. Ext.P28 is his inspection certificate. On Crl.Appeal No.843/13 -:30:- 11/1/2011, he collected the material objects from House No.11/508 of Pallickal Panchayat. The jeans and T-shirt along with one black foot wear were also collected which are identified as MO1, MO5 and MO6. On the same day, at 10 a.m., a comb was examined by him. A few hairs were attached in the comb. MO10 is the comb. Ext.P30 is the report. He further opined that on 15/1/2011, at 11 a.m, he examined a folding type knife which was kept at the Judicial First Class Magistrate Court-I, Punalur in the presence of the Magistrate. It was having a length of 23 cm. It had a wooden handle and a metallic grip in the middle. He identified MO2. It was properly packed and handed over to the investigating officer. In cross-examination, he stated that there was blood on the verandah and northern place. He also deposed during cross-examination that there were blood stains on both the inner pockets of the jeans. The Benzidine test was found positive in the T-shirt and he had stated in his report that the trace of blood was detected.

26. PW17 is a witness to Ext.P3 mahazar by which MO10 comb was recovered by the police. Since he mentioned that he Crl.Appeal No.843/13 -:31:- had not given any statement to the police and the accused was brought after signing the mahazar, he was declared hostile.

27. PW18 was the Scientific Assistant of FSL Lab. Ext.P32 is the report. He deposed that 5 hairs were entangled in a magic brand rectangular shaped comb. Item No.2 has 8 hairs with sample scalp hair of Anoop Khan. His opinion was that item No. (1) are human scalp hairs which are similar to the sample scalp hairs in item No.2. Item No.1, the comb is marked as MO10. He is not cross-examined.

28. PW20 was working as Assistant Surgeon, District Hospital, Kollam. On 12/1/2011, the CBCID brought a person named Anoop Khan. His scalp hair was collected. Ext.P35 is the OP ticket which bears his signature.

29. PW23 was the Circle Inspector of Police on 8/1/2011. The accused was arrested by the investigating officer on 8/1/2011 in Crime No.932/2010. His body search was conducted. A mobile phone and a knife were recovered as per Ext.P39 mahazar. MO2 is the said knife. The mobile phone is MO4. The IME number of MO4 phone is stated in Ext.P39 mahazar. During Crl.Appeal No.843/13 -:32:- cross-examination, he stated that inspection memo was prepared in Crime No.932/2010. Mahazar was sent to the Court on 10/1/2011. 8/1/2011 was a Second Saturday. He stated that he prepared the mahazar in the Police Station. Several persons came knowing about the arrest and two persons among them were made witnesses. In further cross examination, he stated that he had taken the fingerprint of the accused. Arrest memo and arrest notice were prepared which were produced in Crime no.932/10.

30. PW25 was the Circle Inspector of Police, Kottarakkara during the relevant time when the incident happened. He had taken over investigation on 22/12/2010 and Ext.P41 is the report. Inquest was conducted and the said report is Ext.P42. The shirt and pant of the deceased were marked as MO12 and MO13 respectively, the sheet in which the deceased was covered is marked as MO14, his banyan is marked as MO15 and some coins were also collected from the person. He also filed a report indicating the mistake in the inquest report in which the injury was not mentioned. Ext.P43 is the report. He verified the scene and brought the finger print expert. Dog squad, Department Crl.Appeal No.843/13 -:33:- Photographer and Scientific Assistant were summoned and investigation was conducted. Mahazar is prepared and marked as Ext.P44. Chappal MO16 was seized and MO11 is the opener and MO17 is the cello pen. The dog had gone to the door, went to the verandah, came out through the eastern door of the bar, crossed the road and jumped to the compound on the opposite side and reached a waterlogged area. He gave a request to the Cybercell to trace the mobile phone with IME number. On 31/12/2010, the investigation was handed over to CBCID. In cross-examination he stated that he had given a report to Cybercell on 22/12/2010 by e-mail. He did not receive the details during his investigation period. He further stated that he knew that money and mobile phone were lost which he had mentioned in the CD file.

31. PW26 was the Dy.S.P. of CBCID, Hurt and Homicide Wing. He took over investigation as per proceedings dated 5/1/2011 and the crime was renumbered as 6/2011. He checked up whether the mobile phone of the deceased was being used by any other person and the IME number of the mobile was informed to the Hi-Tech cell on the basis of which PW11 gave the Crl.Appeal No.843/13 -:34:- information that it was used by the sister of accused Jaseena Beevi and she was using SIM No.9947483427 pursuant to which Ext.P12 report was submitted. Thereafter, enquiry was made regarding the persons who were residing there and it was noticed that there was a male member by name Anoop Khan. It was understood that he was involved in another murder case in the jurisdiction of Parippally Police Station. He obtained the book containing photos of criminals and it was shown to PW19. In the Criminal Intelligence Gazette of the month November, 2010, at page No.66, PW19 identified the accused based on which, on 7/1/2011, a report was filed as Ext.P48. The Criminal Intelligence Gazette is marked as Ext.P34 and the photograph of the accused as Ext.P34(a). On 8/1/2011, PW23 had arrested the accused in crime No.932/2010. Knowing about the same, a report was filed before the JFCM No.1, Punalur as per Ext.P4. Based on order Ext.P49(a), on 10/1/2011, the accused was formally arrested. Application was given for custody. Custody was received from 10/1/2011 4.p.m till 14/1/2011 at 3. p.m. On questioning, he said that, on 21/12/2010, by about 10.15 p.m, he ran from Akash bar Crl.Appeal No.843/13 -:35:- through the vacant compound on the opposite side and while running, he lost his pocket comb and if he is taken to that place he would show the said place. On the basis of the said statement, the comb was recovered in the presence of Scientific Expert PW16 and other witnesses at 11.30 on 11/1/2011 and Ext.P31 is the said mahazar. The relevant portion of confession statement is Ext.P31(a). He further stated that the jeans pant and T-shirt which he was wearing on 21/12/2010 while he ran away from the bar at Kottarakkara is kept at his house. On the basis of his statement, he was taken to his house and those were recovered in the presence of PW16 on 11/1/2011 at 3.40 p.m. At the time when PW23 arrested the accused, he had in his possession a knife and a mobile phone. Based on the same, report was filed before the learned Magistrate as Ext.P50. He identified the knife and mobile as MO2 and MO4 respectively. When he enquired about the SIM card in the mobile phone of the deceased, the accused had informed that he had thrown it away. Though enquiry was conducted in the case where it was thrown, it could not be located. He had also given the details of other investigation Crl.Appeal No.843/13 -:36:- carried out on the basis of the information given by the accused. He had gone to the lodges where the accused had stayed on 19/12/2010, 20/12/2010 and 21/12/2010 and the relevant records were seized.

32. PW25 the investigating officer initially conducted investigation. During cross-examination, he stated that he was aware of the loss of money and mobile phone initially and that he had recorded the same in a CD file. He also stated that he had given a request to the Cybercell to trace out the mobile using the IME number. In cross-examination, he reiterated that the request was given to the Cybercell on 22/12/2010 by way of e- mail and he did not receive any reply during his investigation. PW26 stated that he had called upon the Hi-Tech Cell to locate the mobile phone with IME number of deceased Gopa Kumar and information was received that it was being used by Jaseena Beevi with SIM No.9947483427 pursuant to which he had been given Exts.P12 and P12(a) address details. Ext.P12 is an e-mail communication dated 6/1/2011 from the Hi-Tech Crime Enquiry Cell, Police Headquarters, Thiruvananthapuram to the Dy.S.P. of Crl.Appeal No.843/13 -:37:- Police, CBCID with reference to tracing of IMEI. It is indicated that the traced details of IMEI number 357746022612490 was attached. Ext.P12(a) contains the address of the person who was using mobile having SIM No.9947483427. It was in the name of Jaseena Beevi, Malampalli House, Chirayinkeezhu, Trivandrum. The aforesaid facts had been indicated to the JFCM Court, Kottarakkara in Form No.15. It is therefore apparent from the aforesaid document that PW26 had obtained a very crucial information that the mobile phone of Gopa Kumar was used by Jaseena Beevi with her SIM card.

33. One argument raised by the learned counsel for appellant is how could the investigating officer get the IME number of the phone for the purpose of tracing it. The accused was arrested only on 8/1/2011 and only then, the IME number could be known. The call detail records which are produced in the case were collected only as per requisition dated 1/04/2011. Therefore, there is no possibility for the investigating officer to know about the IME number if the accused had been arrested only on 8/1/2011. Therefore, the argument is that mobile phone Crl.Appeal No.843/13 -:38:- was not lost, it was taken much earlier and at the time of arresting the accused, it was planted on him. This argument, according to us, cannot be accepted. During an investigation process, the police can seek the assistance of the Cybercell as well as the service providers to obtain call detail records and ascertaining the IME number from the call detail records is not difficult. For official purposes, and for producing before Court, the call detail records with IME number would have been taken as per request dated 1/04/2011, but for the purpose of investigation, it is possible for any investigating officer to collect such details without much difficulty. The technology has advanced to a larger extent and the service providers do help the investigating agencies to conduct criminal investigation by providing such details even before official communications are given. In other words, it is not difficult for any investigating officer to collect such details. In fact, the evidence of PW25 and PW26 have to be read together in order to find out whether there is any manipulation in the issue. As already stated, PW25 had requested the Cybercell on 22/12/2010 itself to trace the mobile phone with IME number. Crl.Appeal No.843/13 -:39:- However, he says that until he was relieved on 31/12/2010, he did not get any information. PW26 got the details on 6/1/2011 itself. Though reference was made by PW26 regarding Exts.P12 and P12(a), in cross-examination, PW26 stated that the request was given for call detail records on 1/04/2011 for obtaining certified copy. Even before that Hi-Tech Cell had collected details and it was given to him. In PW13's evidence, he had stated that it is as per letter dated 25/2/2011 and 01/4/2011 from the Hi-Tech cell that the documents were handed over. He further stated that the details will be collected much earlier. Therefore, from his evidence, it is all the more clear that all the call details will be available with the investigating officer during investigation and only the certified copies are received as per a formal requisition dated 1/04/2011. There is no reason to disbelieve the said version.

34. In fact, the involvement of the accused became clear only when PW23 arrested him in another crime on 8/1/2011 and on his body search, MO2 knife and MO4 mobile were recovered. Ext.P39 is the said mahazar. When he was arrested, he had two Crl.Appeal No.843/13 -:40:- mobile phones with him and a knife. One was a Nokia phone with double SIM and the other was Sony Ericson with IMEI No.357746022612490. In the said phone, SIM No. ending 9411 was seen inserted. The mobile phone of the deceased had been identified by PW9 and PW19.

35. As far as the call detail records are concerned, it is argued that there is no certification in terms of S.65B of the Evidence Act as contemplated in the judgment of the Apex Court in Anvar P.V. v. P.K.Basheer [(2014) 10 SCC 473]. But in this case, it could be seen that no objection was raised regarding marking of documents at the relevant time. Even otherwise, the fact that MO4 mobile phone was recovered from the accused itself proves that he was in possession of the mobile phone during the relevant time atleast when he was arrested. If we verify the call detail records, it could be seen that the said mobile phone was used by his sister Jaseena Beevi from 24/12/2010 onwards. Of course, she has not been examined before Court and the investigating officer stated that she was not available as she had gone to Goa. The accused has no explanation regrading the Crl.Appeal No.843/13 -:41:- possession of MO4 mobile phone. Of course, the accused has a case that it was planted on him, which argument is totally unsustainable. The accused was arrested in another crime, and at the relevant time, on his body search, his mobile phone was recovered. At the relevant time, the investigating officer in that case PW23 has no information about this case. Only when the accused was questioned that his involvement in the present case also came to light.

36. The presence of the accused in Kottarakkara is already proved from the evidence of PW4 and PW5 on 19/12/2010, 20/12/2010 and 21/12/2010. His presence is further proved when the chance fingerprint was obtained in a glass tumbler from the A/C bar, by the Scientific Assistant. The argument is that there is no material to indicate when his fingerprint was taken. This argument is fallacious. The accused is a known criminal. Even in the Criminal Intelligence Gazette for the month of November, 2010, his photograph and other details are available. His thumb impression is available with the police and nobody can have a case that when an accused is arrested, his thumb impression will Crl.Appeal No.843/13 -:42:- not be taken by the police. Therefore the police takes the thumb impression of an accused as a usual procedure and it is compared with the chance fingerprints and on comparison when it is found that the chance fingerprint is the same as that of the fingerprint of the accused, his presence in the A/C bar of Akash hotel immediately before the incident stands proved. Once the presence of the accused in the bar is proved by fingerprint examination, there need not be any difficulty for identification of the accused at all.

37. As far as the identification of the accused is concerned, PW19 has deposed that he had clearly seen the accused. The investigating officer had showed him Ext.P34 which was a publication of November, 2010. It was shown to PW19 on 7/1/2011 and PW19 identified the accused from the said photograph. Of course, it is true that any other investigating officer would have adopted the very same method. But in the case on hand, PW26 who is the superior officer had the advantage of Ext.P34 document and when it was shown to PW19 on 6/1/2011 itself, he immediately identified the accused. Crl.Appeal No.843/13 -:43:- Thereafter, a search was conducted. But he could not be located. After the accused was taken into custody, he had taken the police to the scene of occurrence and showed how he ran away. His comb was detected from an open compound. The hairs in the comb and the scalp hairs were found to be the same as per the FSL report. He had taken the investigating officer to the place where the T-shirt, his jeans and chappals were kept and those were recovered. It contained blood-stains. The knife was blood- stained. The lodges were the accused was residing were identified and documents were recovered and seized.

38. Learned Public Prosecutor placed reliance upon the judgment of the Apex Court in Gopalakrishnan v. Sadanand Naik (2004 (3) KLT 734). In the said case, the Apex Court held at paragraph 7 as under:-

"7. There are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eye-witnesses Crl.Appeal No.843/13 -:44:- and recorded their statements under Section 161 Cr. P.C. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photograph but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance".

39. It is argued that, in this case, PW19 had given some identifying features and therefore, the investigating officer was justified in asking him to identify the accused if his photograph was available in a book containing the photograph of several accused persons. This was for the purpose of enabling the investigating officer to proceed with further investigation in the matter.

Taking into consideration all these incriminating facts, which stands proved beyond reasonable doubt, we are of the view that the Court below was justified in convicting the accused for the Crl.Appeal No.843/13 -:45:- offence u/s 302 and 394 of I.P.C. No grounds are made out for any interference. The appeal is dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


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