Baiju vs State Of Kerala Represented By Dgp on 4 January, 2019

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Kerala High Court

Baiju vs State Of Kerala Represented By Dgp on 4 January, 2019

This appeal has been filed by the appellant challenging the judgment dated 06/07/2013 of Additional District and Sessions Judge (Adhoc) II, Kollam in S.C. No. 283 of 2013 by which he was found guilty for offences under Sections 302, 449, and 394 of the Indian Penal Code, 1860 (in short 'IPC') and sentenced to undergo imprisonment for life and a fine of `15,000/- (Rupees Fifteen Thousand only) with default stipulation of one year rigorous imprisonment for offence u/s 302 of IPC, rigorous imprisonment for seven years and to pay a fine of `5,000/- (Rupees Five Thousand only) for offence u/s 449 of IPC and rigorous imprisonment for seven years and a fine of `5,000/- (Rupees Five Thousand only) for offence u/s 394 of I.P.C., all of which shall go concurrently.

2. The case of the prosecution, in brief, is that the deceased Lakshmikutty Amma, aged 78 years, was residing at Njerinjampillil house bearing no. 408 in the first ward of Neduvathoor Panchayath. The house was almost 30 metres away Crl.Appeal No.233/14 -:3:- from the house of PW1, who is the son-in-law of the deceased. PW3 Nazeer @ Aneesh was residing in an outhouse of the said house on rent. Appellant herein was the friend of PW3. The appellant resided with PW3 for two weeks. While so, on 26/09/2012 at about 11.30 a.m., the appellant trespassed into the house of the deceased, inflicted injuries on her head using a coconut scraper (ചരവ) while she was sleeping and thereafter committed robbery of a gold chain weighing 11.500 grams and a pair of ear studs weighing 2.200 grams. While committing robbery, the appellant cut off the right ear lobe along with the ear stud. Lakshmikkutty Amma became unconscious due to the hit on her head and she succumbed to her injuries by 1.15 p.m., the very same day. Hence the appellant committed offences under Sections 449, 302 and 394 of I.P.C.

3. Prosecution examined PWs 1 to 28 as witnesses, marked Exts.P1 to P31 including Exts.P10(a) and P16(a) and produced and identified MOs 1 to 21. Exts.D1 and D2 were marked during cross-examination of PW4 and PW15.

4. In 313 examination, the appellant denied all Crl.Appeal No.233/14 -:4:- allegations and stated that he was falsely implicated in the case.

5. The learned counsel for the appellant Adv.Sainu B. argued that the appellant is innocent and the Court below erred in convicting him. There is no eyewitness in the case. Motive for the crime is not at all proved by the prosecution. Last seen together is also not proved properly. There is absolutely no evidence to connect the appellant with the crime. The alleged recovery is fabricated and hence cannot be relied on. There are contradictions in the depositions of witnesses. No investigation was conducted to rule out the involvement of PW3 and migrant workers in the locality. Prosecution does not have a consistent case regarding the time of occurrence. Evidence available when looked into in its totality would show that the prosecution failed to prove the allegations levelled against him. She vehemently argued for an acquittal.

6. On the other hand, the learned Special Government Pleader and Public Prosecutor for Attrocities against Women and Children Smt.S.Ambika Devi strenuously argued that there is no need for interference with the judgment of the trial Court as it is Crl.Appeal No.233/14 -:5:- well-founded and just. There are sufficient evidence to connect the appellant to the crime and on reading together them all, it would lead to the conclusion that it was the appellant alone who had committed the offence. Prosecution proved all the chain of circumstances beyond doubt through oral, recovery, medical and forensic evidence. The appellant was last seen together with the deceased. He pledged the gold ornaments immediately after the incident and it was recovered. He was absconding after the incident. Regarding the blood-stained articles and other incriminating evidence, the appellant had no explanation to offer other than a mere denial. The evidence at hand are sufficient to prove his guilt and hence warrants no disturbance.

7. Evidence adduced by the prosecution are, in short, are as under:-

8. PW1 who is the son-in-law of the deceased gave Ext.P1 F.I. Statement based on which PW24 registered the crime by Ext.P23 FIR.

9. PW2 is the daughter of the deceased and wife of PW1.

10. PW3 was a friend of the appellant and the appellant Crl.Appeal No.233/14 -:6:- was staying along with him in the outhouse of the deceased's house during the relevant time.

11. PW4 is another friend of the appellant who is a resident of Karalimukku near Sasthamcotta.

12. PW5 is the Manager of Triveni Store, Karunagappally. CW6 Ajitha purchased MO7 mobile phone from the appellant and PW5 produced it before C.I. Of Police on request.

13. PW6 is the son of the deceased and PW7 is the grandson of the deceased.

14. Prosecution mainly relies on the above witnesses to prove the vital aspects of last seen together, acquaintance of the appellant with the deceased, attending circumstances and subsequent conduct of the appellant. We shall consider their version in detail later.

15. PW8 is an attestor to Ext.P5 inquest report.

16. PW9 is an attestor to Ext.P6 scene mahazar.

17. PW10 is a roommate of the appellant at Kottiyam and was working along with him. It is his version that he had gone to Tamil Nadu along with the appellant to purchase a motorcycle. He Crl.Appeal No.233/14 -:7:- is an attestor to the custody memo of the appellant Ext.P7, Ext.P8 seizure mahazar of a bag (MO16) containing dress and mobile phone of the appellant at the time of his arrest, Ext.P9 mahazar of a receipt, Ext.P10 mahazar for the recovery of MO1 chain. MO17 series combs and MO18 towel were also marked.

18. PW11 is an attestor to Ext.P11 seizure mahazar of MO7 mobile phone.

19. PW12 is the proprietor of M/S. Boben Financiers at Eravipuram where the appellant allegedly pledged ornaments belonging to the deceased on 26/09/2012 between 4 p.m. and 4.30 p.m.

20. PW13 is an attestor to Ext.P16 recovery mahazar of MO1 series dated 04/10/2012 and also Ext.P17 form-J.

21. PW14 is the business person conducting M/S. M.K.Karppakam Bankers at Madurai, a gold loan institution. On 28/09/2012, a gold chain was pledged for `15,000/- by Mrs.P.Shanmugam, wife of Thirukannan. Ext.P18 is the receipt issued by him for the same. He identified MO1 of 11.500 grams weight. It is his version that while the police prepared Ext.P10 Crl.Appeal No.233/14 -:8:- mahazar of MO1, the appellant and Shanmugam were present.

22. PW15 is the Manager of Hotel Ganga Bar. Ext.D2 is marked through him.

23. PW16 is the Manager of Hotel Vijaya Castle Bar, Sasthamcotta. He handed over to the police copy of the relevant visuals in the CCTV camera in a pen drive. According to him, he had seen the appellant.

24. PW17 Dr.Reghu of Taluk Headquarters Hospital issued Ext.P19 intimation in which it is stated that, on 26/09/2012, the deceased was brought dead to the hospital at 1.15 p.m.

25. PW18 was the then Scientific Assistant at DCRB, Kollam. It is her version that on 26/09/2012, she visited the scene of occurrence of this case and collected 11 items. She packed and labelled it and handed over to the investigating officer. Ext.P20 is the certificate prepared by her.

26. PW19 is the then Associate Professor of Forensic Medicine, Medical College Hospital, Thiruvananthapuram. He conducted the post-mortem of Lakshmikkutty Amma and issued Ext.P21 report. He noted the following 12 ante-mortem injuries on Crl.Appeal No.233/14 -:9:- the victim: -

"1. Contusion 11x7.5x0.5 cm on right side of back and adjoining top of head just above the level of occiput 2 cm outer to midline.

2. Contusion involving the whole of right temporalis muscle. Fissured fracture 6 cm long, of right temporal bone, horizontally placed.

3. Lacerated wound 5x1cm, bone deep, obliquely placed on left side of head, its front inner end 6cm outer to midline, 5 cm above the outer end of left eyebrow.

4. Lacerated wound 2x0.8 cm, bone deep, on left side of head, 7 cm above root of ear, its front end 5.5cm behind the back end of the injury number (3) and in line with it.

5. Lacerated wound 4x1cm, bone deep, obliquely placed on left side of head, its lower front end 1.5 cm above root of ear and it was almost parallel to the injury number (3) and 6 cm below it.

The margins of lacerated wounds showed abrasion and the scalp around showed contusion for a width of 1cm to 2.5cm. The skull underneath the lacerated wounds showed depressed fracture over an area 10x4x0.5 cm, involving left temporal, parietal and left side of frontal bone.

6. Contusion 8x4x0.5 cm on left side of back and adjoining top and left side of head 2.5cm outer to midline just above the level of occiput.

Fracture of anterior cranial fossa across midline and right middle cranial fossa seen. Brain showed contusions

(a) 8x5x0.5 cm on outer aspect of right temporal lobe (b) Crl.Appeal No.233/14 -:10:- 3x2x0.5 cm on under aspect of right temporal lobe (c) 3x2x0.5 cm on under aspect of right frontal lobe (d) 4x3x0.5 cm on under aspect of left frontal lobe (e) 5x3x1cm on under aspect of left temporal lobe (f) 3x2x1 cm on under aspect of right half of cerebellum. Subdural haemorrhage seen on both halves of brain. The gyri were flattened and sulci narrowed.

7. Incised wound 1.3x0.5x0.5 cm on left side of forehead 6cm outer to midline 0.5cm above the upper end of eyebrow, with abrasion of its margins all around.

8. Incised wound 2x1x1cm on left side of face its upper end being 3cm outer to outer angle of eye, with abrasion of its outer margin.

9. Superficial incised wound 1.2x0.1 cm, horizontally placed on left side of face, 0.5 cm in front of tragus of ear.

10. Incised wound 2cm long, involving full thickness of lower part of right ear lobe with lobule of ear missing.

11. Incised wound 3.5cm long, involving full thickness of the left ear lobe, at its lower part, separating the lobule except for its attachment to root of ear.

12. Dislocation of tooth number 41 with infiltration of socket."

27. It is his opinion that death was due to blunt injuries sustained to the head (Injury nos. 1 to 6). MO5 coconut scraper was shown to him and he deposed that the injuries are possible using the same as weapon. According to him, injury nos. 7 to 12 are possible by MO6 knife. He collected viscera and it was sent Crl.Appeal No.233/14 -:11:- for chemical analysis and Ext.P31 is the report of the analysis. Ext.P31 reveals that there was no poisoning.

28. PW20 is the videographer who took the video of the location and MO19 is the compact disk containing the same.

29. PW21 is a goldsmith. Ext.P22 is the certificate issued by him after verifying the purity of MO1 and MO2.

30. PW22 was the then Village Officer who prepared Ext.P22(a) site plan.

31. PW23 was the then police constable of Rural Cyber Cell, Kollam. He deposed that he traced the location of Samsung mobile phone used by the appellant by making use of IMEI number and found it was at Sasthamcotta. He prepared a CD from the pen drive seized from Vijaya Castle Bar and it was marked as Ext.P20.

32. PW24 was working as Sub Inspector of Police at Puthoor. He registered Ext.P23 FIR based on Ext.P1 FIS of PW1 and also prepared Ext.P5 inquest report. He also produced materials collected by PW18 before Court.

33. PW25 was the then ASI of Police, Puthoor. He prepared Crl.Appeal No.233/14 -:12:- Ext.P6 scene mahazar. He seized nine items including MO5 and MO6.

34. PW26 is the Circle Inspector who investigated the case. He questioned witnesses. He arrested the appellant. He collected most of the evidence described already. Ext.P24 is the mahazar prepared for the seizure of Videocon mobile phone of the appellant which he had given to PW3 in exchange of PW3's Samsung mobile phone. Ext.P11 is the seizure mahazar of Samsung mobile phone of PW3 which was at the hands of the appellant. He seized MO20 CD as well.

35. PW27 Shanmugham pledged MO1 chain for the appellant on his request on 28/09/2012 for `15,000/- and gave the amount to the appellant. She identified Ext.P18 receipt and stated that her name is mentioned in it.

36. PW28 was the then Circle Inspector of Police at Ezhukone Police Station holding additional charge of Kottarakkara. Ext.P31 chemical analysis report is marked through him. He laid charge-sheet before Court after verifying the same.

37. Now we may look into the evidence of PWs 1 to 7 in Crl.Appeal No.233/14 -:13:- detail.

38. PW1 deposed that the incident took place on 26/09/2012 between 9 a.m. and 11 a.m at Njerinjampillil house in Puthoor, which is the family house of his wife PW2. His mother-in- law was staying alone. His house was 25 to 30 metres away from this house. There is a cattle shed and an out-house attached to the family house. PW3, Nazeer @ Aneesh was residing at the outhouse on rental basis for the last six months. According to PW1, about one week prior to the incident, appellant Baiju @ Singam started residing along with PW3, with the permission of the deceased. PW1 and PW2 used to supply food to the deceased. On that day, at 8.30 a.m. his wife PW2 gave breakfast to Lakshmikkutty Amma. PW1 was working at Kerala Ceramics at Kundara and he was on night duty during the previous day of the incident. He came back from work place at 10 a.m. and at that time the appellant was sitting at the step of the outhouse. After 11 a.m., PW2 went to the family house carrying lunch and she found her mother lying in the cot in a pool of blood. It is the version of PW1 that on hearing her hue and cry, he ran into the Crl.Appeal No.233/14 -:14:- bedroom of the house. Appellant was not there and he was not available at the outhouse also. She was soon taken to hospital and at Taluk Hospital, the Doctor examined her and at about 1.15 p.m. he declared her dead. According to PW1, the deceased was having injuries on her face and left ear. Part of right ear was cut and was missing. A gold chain of 11.5 grams, one ear stud and another ear stud along with part of ear were missing. He identified the gold chain and the ear studs as that of the deceased's and they were marked as MO1 and MO2 series. He also identified the blouse and kaili of the victim and they were marked as MO3 and MO4.

39. PW2 is the daughter of the deceased and wife of PW1. She deposed in tune with PW1 regarding the stay of PW3 and appellant in their outhouse, seeing of the dead body by herself and PW1 on the date of incident. She added that during night, her son Ajeesh used to go and sleep with the deceased. According to her, on 26/09/2012, at about 9 a.m., she had given breakfast to her mother and mother shared breakfast to the appellant also. Later when she went to feed the cattle, her mother was seen Crl.Appeal No.233/14 -:15:- talking with the appellant who was standing at the courtyard. It is her version that since it was 28 th Onam, an auspicious day, her mother requested her to bring lunch for the appellant as well. Accordingly, at about 11 a.m., she went to the family house along with lunch for both her mother and also the appellant. She placed lunch for the appellant at the kitchen with fish curry. On entering inside the room, she found her mother lying in a pool of blood. She made a hue and cry. She searched for the appellant also but he was not available there. On hearing her cry, PW1 and neighbours rushed to the house and the victim was taken to hospital. It is her version that the gold chain, left ear stud and right ear stud along with part of ear was missing from her mother's body. She also identified MOs 1 to 4 as that of her mother's. She stated that her mother was attacked with a coconut scraper and knife, both of which were available at her family house and identified them as MO5 and MO6 respectively.

40. PW3 deposed that he knew the victim and the appellant. He had given a statement before the Magistrate and it is marked as Ext.P2. 8 to 9 months prior to the incident, he began Crl.Appeal No.233/14 -:16:- to reside at the outhouse of the victim for a monthly rent of `500/-. He deposed that he was employed in Ganga Bar, Puthoor. He said that Lakshmikkutty Amma was killed on 26/09/2012 between 10.30 a.m. and 11.00 a.m. During the relevant time, he was working with AIDS control. One day, on his return from Ernakulam, he came into contact with the appellant at KSRTC Bus stand. It is his version that since it was 11.30 p.m., there was no bus service to Puthoor. Accused told him that he is having a room at Kottiyam and welcomed him to stay with him that night. Accordingly, he went along with the appellant and stayed with him in his room at Kottiyam. Next day morning, he went to Puthoor along with the appellant. Appellant stayed there for about 7 days at the outhouse with the permission of Lakshmikkutty Amma. According to him, on the date of incident, he woke up at 5 a.m. and went for work at Nedugola hospital. He prepared food. The appellant went out in search of a mason and he came back at 8.00 a.m. It is his version that the appellant alone was there in the outhouse when he left to Nedugola hospital for work. Appellant wore PW3's clothes. Appellant had Crl.Appeal No.233/14 -:17:- taken PW3's Samsung phone and gave his Panasonic phone to PW3. He identified his mobile phone as MO7 and that of the appellant as MO8. He identified his dress which was worn by the appellant on the date of incident and they were marked as MOs 9 to 14. Belt used by the appellant is marked as MO15. He was caught by the police from Kottarakkara bus stand and he gave statement to police as well.

41. PW7 is the grandson of the deceased and the son of PWs 1 and 2. It is his version that he used to sleep along with his grandmother in the night as she was alone there. On the previous day of the incident also, he slept in the family house with his grandmother. He woke up at 6.30 a.m. PW3, the appellant and the deceased were there at the house. He deposed that at about 8 a.m. he went to the college and he saw his grandmother sitting in the hall and the appellant sitting in the step of the outhouse. He further deposed that PW3 was residing in the outhouse on rent for about 6 months and the appellant was staying there for about a week. On 03/10/2012, police had shown the appellant to him. He identified MO1 and MO2 series items as his Crl.Appeal No.233/14 -:18:- grandmother's.

42. PW6 is the son of the deceased. He deposed his knowledge about the stay of the appellant along with PW3 at the outhouse during the relevant period. Police had shown him the ear studs on 04/10/2012, the gold chain on 06/10/2012 and he identified them as that of his mother's. He identified the appellant as well. He identified a photograph of his mother wearing the said gold ornaments in a marriage function and is marked as Ext.P4. He also identified MO1 and MO2 series as his mother's.

43. PW4 resides at Karalimukku near Sasthamcotta and he became acquainted with the appellant at District Hospital, Kollam, about six months prior to the incident when their wives were admitted in the hospital. He deposed that the appellant had visited his house later. It is his version that, on 26/09/2012, the 28th Onam day, between 1.30 p.m. and 2.00 p.m., the appellant came near his house and contacted him over phone. He deposed that the appellant told him that he was coming from Bangalore and that he is having a mobile phone for sale. PW3's maternal Crl.Appeal No.233/14 -:19:- aunt Ajitha (CW6) was ready to purchase the said mobile phone for `1,400/-. He gave `800/- to the appellant. It is his further version that both of them went to a bar at Sasthamcotta and consumed liquor. Thereafter the appellant collected his mobile number and went away. PW3 identified MO7 Samsung mobile phone. Ext.D1 contradiction is also marked.

44. PW5 is the Manager of Triveni store, Karunagappally. It is his deposition that on 26/09/2012 while he was attending a meeting at Hotel Nila Palace, CW6 Ajitha contacted him over phone between 2.30 p.m. and 3.00 p.m. and told about the mobile phone. Ajitha purchased the mobile phone for `1400/- for him and while he was using it, on the very next day, police contacted him and asked to produce the mobile phone and he produced it. He identified the said mobile phone as MO7.

45. It is admitted that there is no direct evidence for the offence and the prosecution relied on circumstantial evidence to prove the case against the appellant.

46. It is undisputed that Lakshmikkuty Amma was found lying in a pool of blood in her house on 26/09/2012 and it was a Crl.Appeal No.233/14 -:20:- homicide and the post-mortem report indicated the number of ante-mortem injuries, which was the result of death.

47. It is rather clear from the evidence that the appellant was allowed by the deceased to stay with PW3 in the outhouse. It is also brought in evidence that 26/09/2012 was 28 th Onam, a peculiar festival day of the locality and hence deceased shared breakfast with the appellant and also offered lunch to him by telling her daughter PW2 to bring lunch for the appellant also.

48. Accordingly, PW2 brought food for both of them and at that time she found her mother lying in a pool of blood. They searched for the appellant but he was missing and was absconding thereafter along with his articles and bag.

49. The deposition and materials described above would show that apart from the above facts, the following facts were also brought out by the prosecution as circumstance that incriminate the appellant herein:

(i) Lakshmikkutty Amma was staying alone in the house in which the incident took place and the appellant was residing at the outhouse of the said property of the deceased along with Crl.Appeal No.233/14 -:21:- PW3 for about one week prior to the alleged incident.

(ii) On 26/09/2012, the appellant collected MO7 Samsung mobile phone of PW3 and exchanged his MO8 Videocon mobile phone with PW3.

(iii) PW1 came back from work place at 10 a.m. on 26/09/2012 and at that time the appellant was sitting at the step of the outhouse of the deceased.

(iv) According to PW2, on 26/09/2012 at about 9 a.m., she had given breakfast to her mother and mother shared breakfast to the appellant also. Later when she went to feed the cattle, her mother was seen talking with the appellant who was standing at the courtyard. It is her version that since it was 28 th Onam, an auspicious day, her mother requested her to bring lunch for the appellant as well. Accordingly, at about 11 a.m., she went to the family house along with lunch for both her mother and the appellant. She placed lunch for the appellant at the kitchen with fish curry. On entering inside the room, she found her mother lying in a pool of blood.

(v) According to PW3, the appellant stayed there for about Crl.Appeal No.233/14 -:22:- 7 days at the outhouse with the permission of Lakshmikkutty Amma. According to him, on the date of incident, he woke up at 5 a.m. and went for work at Nedugola hospital. He prepared food.

The appellant went out in search of a mason and he came back at 8.00 a.m. It is his version that the appellant alone was there in the outhouse when he left to Nedugola hospital for work. Appellant wore PW3's clothes. Appellant had taken PW3's Samsung phone and gave his Panasonic phone to PW3. He identified his mobile phone as MO7 and that of the appellant as MO8. He identified his dress which was worn by the appellant on the date of incident and they were marked as MOs 9 to 14. Belt used by the appellant is marked as MO15.

(vi) It is the version of PWs 1, 2, and 7 that the deceased was wearing MO1 gold chain and MO2 series ear studs and those were missing from the body of the victim when they saw her in the pool of blood.

(vii) On 26/09/2012 between 1.30 and 2.00 p.m., the appellant met PW4 at his house and sold MO7 Samsung mobile phone to PW5 through PW4 for an amount of `1400/-. PW5 Crl.Appeal No.233/14 -:23:- supported the same and Ext.P11 is the recovery mahazar of MO7.

(viii) Evidence of PW23 shows that the location of mobile phone was found to be Sasthamcotta which proves the presence of the appellant there, against which appellant had no explanation.

(ix) PW16 produced MO20 visuals of CCTV footage taken from Vijaya Castle Bar, Sasthamcotta which shows that the appellant was present at the bar at the relevant time and hence his presence at Sasthamcotta.

(x) MO5 coconut scraper and MO6 knife were recovered as per Ext.P6 scene mahazar from the place of occurrence. They were listed as item nos. 6 and 7 respectively in the FSL report. They were found to be stained with human blood of B 'Rh' positive, belonging to the deceased.

(xi) Ext.P21 post-mortem report reveals that the deceased suffered altogether 12 ante-mortem injuries out of which, according to the Doctor, injury nos. 1 to 6 could be caused by object like MO5 and rest of the injuries particularly injury no.10 which is a cut injury on the ear lobe could be caused with MO6. Crl.Appeal No.233/14 -:24:-

(xii) Ext.P6 scene mahazar corroborates the version of PW2 that she had supplied lunch for both the deceased and the appellant as per the instruction of the deceased and that she kept food including fish curry in a glass bowl in the kitchen of the house for the appellant and that for the deceased in the dining table.

(xiii) PW3 deposed that the appellant was not available there at the time she had seen her mother lying in a pool of blood and that he had left the place with his belongings. At the time of his arrest, MO16 bag was seized from the appellant as per Ext.P8 mahazar and it contained MO9 to MO15 items. Ext.P29 FSL report reveals that track suit lower and the T-shirt (Item nos. 22 and 23) contained blood and appellant has no explanation for the same.

(xiv) Appellant was arrested by PW26 from Thiruchirappilli Railway Station on 02/10/2012 in the presence of PW10 Muniswamy and as per Ext.P25 inspection memo, he seized certain articles from the appellant, including Ext.P13 receipt of M/S Boben Financiers. Following that, PW26 recovered MO2 series ear studs from PW12, the proprietor of the said financiers as per Crl.Appeal No.233/14 -:25:- Ext.P16 recovery mahazar based on Ext.P16(a) confession statement of the appellant to which PW13 is an attestor. It is corroborated by PW12's testimony that the appellant pledged MO2 series with him on 26/09/2012 between 4.00 p.m. and 4.30 p.m. for `2,500/-. Ext.P14 ledger entry also shows that the appellant pledged the gold ornaments.

(xv) Based on Ext.P10(a) disclosure statement of the appellant, PW26 was led to PW27 and then recovered MO1 gold chain as per Ext.P10 mahazar. Appellant was present at the time of the recovery and all these were done with the assistance of the interpreter. But this information as such is not admissible under S.27 of the Evidence Act, 1872 since the same was pledged by PW27 as per Ext.P9 receipt at the shop of PW14 at Madurai, Tamil Nadu. But his disclosure shows his subsequent conduct which is admissible under Section 8 of the Evidence Act.

50. The learned Prosecutor relied on the decision of this Court in Manikandan v. State of Kerala (2018 KHC 40), in which one among us was a party, for emphasizing presumptive evidence. Paragraph 14 reads thus:-

Crl.Appeal No.233/14

-:26:-

14. It was argued that the legal position settled in Baiju v. State of M.P. (supra) and other decisions referred above that unexplained possession of stolen property of the victim by the accused would be a presumptive evidence of the charges of murder besides robbery had been given a go by the larger Bench decision (three Bench) rendered in George v. State of Kerala (supra). In fact, there is no conflict in the legal position settled in Baiju v. State of M.P. (supra) and other decisions referred in the earlier paragraphs with the larger Bench decision (three Judge Bench) rendered in George v. State of Kerala (supra). The criteria for the application of the principles laid down in George's case and in Baiju's case is resting on the question whether the murder and robbery alleged would form part of same transaction and when there is evidence to show or to presume that both the commission of murder and robbery form part of same transaction, presumptive evidence of charges of murder can be applied besides robbery. But, when there is evidence to show that the commission of murder and robbery will not form part of the same transaction or when there is possibility of having other hypothesis for the commission of murder rather than what is attached with the commission of robbery / theft, there cannot be any application of presumptive evidence for the charges of murder. The factual scenario involved in Baiju's case (supra) would come under the purview of former one and in George's case (supra) would come under the purview of latter one. The test is to find out whether the unexplained possession of the articles of theft / robbery Crl.Appeal No.233/14 -:27:- would form part of same transaction in which the offence of murder was committed. Then only the presumptive evidence of unexplained possession of the articles of theft / robbery can be extended to the charges of murder. It is well within the power of the Court to test whether the commission of murder and robbery would form part of the same transaction, both by direct evidence and presumptive evidence, and in the case of latter one, the test is to find out the existence of any other hypothesis for the commission of murder rather than what is available under the presumptive evidence".

51. The above circumstance and available evidence would clearly indicate that the appellant herein committed the crime. The deceased was alone in the house and they were last seen together by PW2 and, within an hour, her dead body was found by the witnesses. Soon after the incident, the appellant was absconding. His prior preparation is evident from his exchanging mobile phone with PW3 and attending conducts. MO1 and MO2 series worn by the deceased were recovered based on the information given by the appellant. Injuries sustained were serious and were sufficient in the ordinary course of nature to cause death. It is proved that MO5 and MO6 were the weapons used for the commission of the crime which were readily Crl.Appeal No.233/14 -:28:- available in the house of the deceased. Appellant had no explanation for the blood stains found on the dress recovered from his bag at the time of his arrest.

52. Hence, we find no reason to interfere with the finding of the court below that the appellant is the murderer of the victim.

Appeal is dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                            A.M.BABU

Rp               //True copy//                JUDGE

                 PS to Judge

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