Kerala High Court
Court vs Shahir on 6 September, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
THURSDAY, THE 6TH DAY OF SEPTEMBER,2012/15TH BHADRA 1934
CRL.A.NO.1274 OF 2008
(S.C.No.68/2007 OF SESSIONS COURT, THRISSUR)
(C.P.105/2006 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, CHAVAKKAD)
APPELLANTS/ACCUSED NO.3, 4 and 5
1. SHAHIR,
S/O.HYDRU, ARAKKAL VEEDU
KADAPPURAM VILLAGE, RESIDING AT
NEAR THOTTAPPU BADARI MOSQUE.
2. RASHED
S/O.ABDUL KHADER
PANIKKAVEETIL, THOTTAPPU,
KADAPPURAM VILLAGE.
3. SHIHAB
S/O.ABDUL HAMEED,
THEKKOD VEEDU, NEAR THOTTAPPU LIGHT
HOUSE,
KADAPPURAM VILLAGE.
BY ADV.SRI.P.VIJAYA BHANU
SMT.P.MAYA
RESPONDENT/COMPLAINANT
STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.JIKKU JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-09-2012
ALONG WITH CRL.APPEAL 1274/2008 THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.SASIDHARAN NAMBIAR &
C.T.Ravikumar,JJ.
================================
Crl.Appeal No. 1274 & 2549 OF 2008
================================
Dated this the 6th day of September,2012
JUDGMENT
Sasidharan Nambiar,J.
Appellants were convicted and sentenced to imprisonment for life for the offence under section 396 IPC by Sessions Judge, Thrissur in S.C.68/2007. Prosecution case is that deceased Rajan the husband of PW5, Chandrika left his wife and daughter in 1996 due to the failure in his business and thereafter they were living separately. He was doing business at Kattilappilly in two rooms obtained on rent from PW2 Hassan Koya. Rajan was residing alone in one of the rooms. On the morning of 4.7.2005, the deadbody of Rajan was found by PW4, Jameel on the backside of the rooms, with both hands and legs tied. PW4 informed it to Crl.A.1274 & 2549 of 2008 2 Pws 1 to 3. PW1 Muhammed Rafi, a close neighbour furnished Ext.P1 First Information Statement which was recorded by PW18, the Sub Inspector of Police, who registered Crime 400/2005 of Chavakkad Police Station for the offences under sections 394 and 302 of Indian Penal Code, after preparing Ext.P1(a) FIR. PW19 Circle Inspector took over the investigation. He prepared Ext.P11 Inquest report in the presence of PW16 Raphy and thereafter prepared Ext.P12 scene mahazar in the presence of PW17 Unnikrishnan. PW19 seized M08 chappal, M09 purse containing M010 series of cash of Rs.1605/- from the room where the deceased was living at the time of preparing Ext.P12 scene mahazar. From the western paramba of the shop building, PW19 seized M09 chappal, M014 banian and M02 drawer found abandoned there. PW19 forwarded the body for autopsy. PW12 Dr.N.Rajaram conducted the autopsy and prepared Ext.P6 postmortem certificate finding that the deceased died due to smothering and the blunt injury sustained on his head. PW21 the Crl.A.1274 & 2549 of 2008 3 successor Circle Inspector, who took over the investigation from PW19, continued the investigation. The assailants involved could not be traced. PW21 therefore enquired about the whereabouts of persons involved in such offences and found out that the accused were missing from the area. On 28.8.2006, PW21 arrested appellants 1, 4 and 5. First accused was arrested while he was engaged as worker in the vegetable market at Ernakulam and appellants 4 and 5 from their native place. Second appellant was undergoing sentence in Central Jail. His formal arrest was recorded on 5.7.2006 after obtaining permission from the court. PW21 arrested the third accused on 7.7.2007 from Olavakkode Railway Statiion. On the information furnished by the fifth appellant, under Ext.P5 recovery mahazar, M04 gold ring allegedly worn by the deceased and was found missing on the morning of 4.7.2005 when his dead body was found, was recovered from the house of the fifth appellant in the presence of PW11 the Police Constable on Crl.A.1274 & 2549 of 2008 4 7.7.2006 at 4 p.m. PW21 seized Ext.P7 and P8 register and bill book of Anugraha Tourist Home, Kozhikode where all the appellants allegedly stayed on 4.7.2005. After completing the investigation charge was laid before Judicial First Class Magistrate, who committed the case to Sessions Court, Thrissur.
2. Learned Sessions Judge framed the charge for the offence under section 396 of Indian Penal Code read over and explained to the appellants. All the appellants pleaded not guilty. Appellants are defended by a counsel appointed by them. Prosecution examined 21 witnesses and marked 23 exhibits and identified 18 Material Objects. After closing the prosecution evidence appellants were questioned under section 313 of Code of Criminal Procedure. When the incriminating evidence was put to the accused they denied the same and contended that they were not involved in the incident at all. The fifth appellant contended that he did not furnish any information and based on his Crl.A.1274 & 2549 of 2008 5 information M04 was not recovered. Learned Sessions Judge finding that this is not a case for acquittal under section 232 of the Code of Criminal Procedure, called upon the appellants to enter on the defence and adduce evidence if any, in support thereof. Appellants did not adduce any defence evidence.
3. Learned Sessions Judge on the evidence found that M04 is identified as the gold ring which was worn by deceased Rajan as proved by Pws.1 to 4. Learned Sessions Judge also found that M04 was proved to be recovered under Ext.P5 recovery mahazar in the presence of PW11 Police Constable and that recovery was on the information furnished by the fifth appellant. It was also found that M04 gold ring was recovered on the information furnished by fifth appellant, while it was kept in his house concealed in the inner pocket of his jeans and hence it is clear that fifth appellant is involved in the dacoity and murder. Relying on the evidence of PW6 Subeesh, the autorikshaw Crl.A.1274 & 2549 of 2008 6 driver and PW7 Sukumaran, learned Sessions Judge found that they identified all the appellants and the evidence conclusively establish that as requested by the third appellant, who had earlier worked as an employee under PW7, PW7 engaged PW6 to take them in his autorikshaw on the night of 4.7.2005 and later the third appellant contacted PW7 over phone by about 3 a.m in the morning and requested to engage an autorikshaw to take them to the bus stand and PW7 engaged PW6 to take the appellants to Chavakkad Bus Stand and thus the evidence of PW6 establish that he had taken the appellants near to the scene of occurrence and thereafter back to the Bus Stand. Learned Sessions Judge also found that the evidence of PW13 with Ext.P9 mahazar and the evidence of PW14 establish that Exts.P7 and P8 register and the bill book were seized by the police under Ext.P9 mahazar and the relevant entries in Ext.P7 and P9 establish that all the appellants had stayed in Anugraha Tourist Home on 4.7.2005. Based on these evidence learned Crl.A.1274 & 2549 of 2008 7 Sessions Judge found that as all the appellants were found near to the scene of occurrence on the night of 3.7.2005 and the dead body of deceased Rajan was found on the early morning of 4.7.2005 and M04 gold ring of the deceased was found in possession of fifth appellant, it is clear that all the appellants conjointly committed the dacoity and murder of Rajan. All the appellants were thus found guilty of the offence under section 396 of the Indian Penal Code and were sentenced to imprisonment for life. The conviction and sentence are challenged in these appeals.
4. Appellants 1 and 2 preferred Cr.A.2549/2008 together from the jail where they are undergoing imprisonment. Accused 3 to 5 challenged the conviction sentence in Crl.A.1274/2008. As the appellants in Crl.A.2549/2008 did not engage a counsel, Advocate Sheela Devi was appointed from the panel of senior State brief, to appear for the appellants.
5. Learned senior counsel appearing for the Crl.A.1274 & 2549 of 2008 8 appellants in Crl.A.1274/2008 and the learned counsel appearing for the appellants in Cr.A.2549/2008 and learned Public Prosecutor were heard.
6. The argument of the learned senior counsel is that there is no evidence to connect any of the appellants either with the dacoity or murder. It was pointed out that though M04 was alleged to be the gold ring belonging to deceased Rajan, the description of the gold ring was not furnished by PW1 in Ext.P1 First Information Statement or PW2 to 4 in their statements recorded under section 161 of the Code of Criminal Procedure and PW5 the wife has not even identified M04 as the gold ring of her husband and in such circumstances based on the identification by Pws. 1 to 4 for the first time from the box, learned Sessions Judge should not have found that M04 was the gold ring belonging to deceased Rajan. Learned senior counsel argued that if it is to be found that prosecution did not establish that M04 belongs to Rajan and it was lost Crl.A.1274 & 2549 of 2008 9 on 4.7.2005, based on the recovery of M04 appellants cannot be found guilty. Learned senior counsel also argued that even if M04 is to be taken as the gold ring of the deceased, unless recovery is soon after the dacoity and murder, the presumption provided under section 114(a) cannot be drawn and it cannot be found either that the fifth appellant or all the appellants conjointly committed the dacoity and the murder. Learned senior counsel relied on the decision of the Apex Court in State of Rajasthan v. Talevar and another (2011) 11 SCC 666)and argued that even according to the prosecution recovery of M04 was one year after the dacoity and murder even if the recovery is believed, it cannot be led to the conclusion that it was the fifth appellant or any of the appellants who committed the dacoity and murder. It was pointed out that the evidence of PW3 shows that deceased Rajan was in the habit of pledging the gold ring and if that be so, when Pws 1 to 4 have no case that the gold ring was found in the finger Crl.A.1274 & 2549 of 2008 10 of the deceased on the night of 3.7.2005, it cannot found that the gold ring was stolen or removed from the body of the deceased on the night of 3.7.2005 or in the early morning on 4-7-2005. Learned senior counsel also argued that based on M04 it is not possible to connect any of the appellants with the offence. Learned senior counsel also argued that the recovery of M04 under Ext.P5 mahazar cannot be believed as even according to the prosecution, there were neighbouring houses and none of the neighbours were examined to prove the recovery and only PW11, a Police Constable, was examined to prove the recovery. It is therefore argued that even the recovery effected by PW21 under Ext.P5 cannot be relied on. Learned senior counsel then argued that learned Sessions Judge was not right in holding that appellants were found near the shop of the deceased on the previous night of 4.7.2005. It was pointed out that the evidence of PW6 autorikshaw driver only establishes that he took five persons in his autorikshaw as Crl.A.1274 & 2549 of 2008 11 requested by PW7, on the night and he could not identify them and though he was later compelled to identify the accused, that identification cannot be believed. It was also argued that the evidence of PW7 establishes that he had no previous acquaintance with the accused, except the third accused who was his previous employee and it was admitted by PW7 that the accused after the arrest were shown to him by the police and therefore when no test identification parade was conducted and the appellants were shown to PW7 by the police, his identification of the appellants from the box should not have been relied on by the learned Sessions Judge. Even if the evidence of Pws.6 and 7 is to be believed it would only prove that 2 = years earlier to the date of their examination third appellant requested PW7 to engage an autorikshaw as he has no acquaintance with the drivers and the autorikshaw driver may not carry five persons, PW7 engaged PW6 to take them and PW6 took them from Guruvayoor to Madayikadavu and there Crl.A.1274 & 2549 of 2008 12 is no evidence to prove that PW6 had taken the appellants near to the shop building of the deceased and therefore based on that evidence it cannot be found that appellants were found near the scene of occurrence on that fateful night. Learned counsel also pointed out that evidence of PW7 shows that the bag containing dresses of third appellant was left in the shop of PW7 and therefore there is nothing unusual in the third appellant contacting PW7 in the early morning when he has to take back the bag and in such circumstances evidence of PW6 and 7 are also insufficient to connect the appellants with the offence. Learned senior counsel relied on the decision in Mohanlal Gangaram Gehani v. State of Maharashtra (1982) 1 SCC 700), Mohd.Iqbal M.Shaikh and others v. State of Maharashtra (1998)4 SCC 494)in support of the submissions.
7. Learned counsel appearing for the appellants in Crl.A.2549/2008 reiterated the submissions of the learned senior counsel.
Crl.A.1274 & 2549 of 2008 13
8. Learned Public Prosecutor submitted that M04 gold ring was identified by Pws.1 to 4 as the gold ring which was found in the finger of the deceased and there is no reason to disbelieve the evidence of Pws.1 to 4 with regard to the identity of M04 as the gold ring of the deceased. Learned Public Prosecutor pointed out that M04 was recovered on the information furnished by the fifth appellant immediately after his arrest and it was recovered from his house and as it was found kept inside the inner pocket of his jeans and taken by the fifth appellant and handed over to PW21 and as it is found to be the article which was stolen from the deceased at the time of his murder, it is conclusively proved that fifth appellant was involved in the dacoity and murder. Learned Public Prosecutor also argued that though PW5 originally deposed that he could not identify all the appellants later he identified the appellants as the persons whom he had taken in his autorikshaw on that night as instructed by PW7 and the evidence Crl.A.1274 & 2549 of 2008 14 of PW7 establish that the third appellant was his employee and PW7 could recognise even the voice of the third appellant and in such circumstances there is no reason to disbelieve the evidence of PW7 with regard to his identity. It was also pointed out that evidence of PW7 establish that as requested by the third appellant, PW7 took all the appellants together to the hotel and directed the waiter to give them food and paid for the same and therefore PW7 had sufficient opportunity to identify those persons and in such circumstances there is no reason to disbelieve the evidence of PW7 on the identity of the other accused also. It was also pointed out that evidence of PW7 establish that he is in the practice of waking up in the early morning at 3 a.m and used to go to the temple and when he woke up on that day, third appellant called him at 3 a.m and requested to send an autorikshaw and PW7 sent PW6 to take the appellants from Pancharamukku in his autorikshaw to the bus stand and the evidence of PW6 establish Crl.A.1274 & 2549 of 2008 15 that PW6 had taken the appellants to the bus stand. Leaned Public Prosecutor also argued that the evidence of PW13 establish that first appellant signed in Ext.P7 register and obtained two rooms on rent in Anugraha Tourist Home, Pavamani road, Kozhikode on 4.7.2005 and all the appellants together stayed for one day in that hotel and it establishes that all the appellants were together before and after the dacoity and murder.It is therefore argued that there is no reason to interfere with the conviction and sentence.
9. Evidence of Pws 1 to 4 establish that deceased Rajan was conducting business in the two shop rooms owned by PW2 and situated near to the house of Pws. 1 to 4. Their evidence also establish that on the morning of 4.7.2005, PW3 found that the cot and bed of the deceased was lying in the open and wet and deceased was missing and shutter of one of the the shop rooms was partly opened. PW3 informed PW2 the owner of the lodge and they together searched for the deceased. Under the Crl.A.1274 & 2549 of 2008 16 impression the deceased had gone out, PW2 closed the shutter fully and they returned to their houses. PW4 by that time found the body of deceased Rajan on the back side of the shop rooms. PW4 cried and called aloud. Pws 1 to 3 reached there. The body of Rajan was found naked and both hands and legs as well as eyes and mouth were tied. They found that Rajan had already breathed his last. The gold ring was missing. PW1 furnished Ext.P1 F.I. Statement to PW18 Sub Inspector who prepared Ext.P1(a) F.I.R, and registered the crime. PW19 the Circle Inspector took over the investigation prepared Ext.P11 Inquest Report and also Ext.P12 scene mahazar. On examination PW19 found that M09 purse containing M010 series of notes of Rs.1605/- and M08 chappals of deceased were there. M02 drawer was found missing and the entire articles were found displaced. Near to the scene of occurrence on the western property PW19 found M014 banian and M08 chappal and M02 drawer. Though the assistance of sniffer dog and finger Crl.A.1274 & 2549 of 2008 17 prints were sought, nothing fruitful could be obtained. While the case was being investigated PW21 the successor Circle Inspector who took over the investigation investigated whether persons of the locality involved in such criminal incidents were missing. The evidence of PW21 is that based on such information, he reached vegetable market, Ernakulam and found the first appellant and arrested him on 28.6.2006. Accused 4 and 5 were arrested on the same day from their native place. It is thereafter on questioning the fifth appellant, on the alleged information furnished,M04 gold ring was recovered. It is mainly based on M04, learned Sessions Judge found the appellants guilty. Though appellants 2 to 4 were implicated based on the evidence of Pws.6 and 7 that they were found near to the scene of occurrence on that fateful night, the first question is whether M04 was the gold ring belonging to the deceased and worn by him and whether it was recovered on the information furnished by the fifth appellant.
Crl.A.1274 & 2549 of 2008 18
10. True, Pws 1 to 4 identified M04 as the gold ring which was found in the finger of the deceased. It is also true that they deposed that they found deceased Rajan wearing M04 gold ring. At the same time, PW3 deposed that deceased Rajan had shown M04 ring to him earlier stating that it is to be pledged. Neither PW1 nor PW2 nor PW4 deposed that any of them had seen M04 with the deceased on the night of 3.7.2005. Though Pws.1 to 4 identified M04 as the gold ring worn by the deceased, neither in Ext.P1 First Information Statement nor in their statement recorded by the Investigating Officer under section 161 of the Code of Criminal Proceddure,Pws. 1 to 4 had given the description of the gold ring found worn in the fingers of the deceased. In such circumstances if instead of M04 another gold ring was produced as recovered and shown to the witnesses it is possible that they would have identified it as the gold ring of the deceased. As none of the witnesses had given any description or identification mark of the gold ring Crl.A.1274 & 2549 of 2008 19 earlier to the date of their examinatio0n, it is not safe to rely on their evidence to find that M04 is the gold ring worn by the deceased and found missing when his dead body was found on the morning of 4.7.2005. It was pertinent to note that even PW5 the wife of the deceased was not asked to identify M04 as the gold ring belonging to her husband. Though for some years earlier to the date of incident, deceased was living away from PW5, if M04 was worn by the deceased earlier as claimed by Pws. 1 to 4, PW5 could have definitely identified it as the gold ring belonging to her husband. In such circumstances the identity of M04 as the gold ring of the deceased is doubtful.
11. Though PW21 deposed that on the information furnished by the fifth appellant, under Ext.P5 recovery mahazar he recovered M04 from the house of the fifth appellant and the fifth appellant led him to his house and took M04, which was concealed inside the inner pocket of his jeans in a brief case, fifth appellant denied the alleged Crl.A.1274 & 2549 of 2008 20 information and the recovery. Apart from the evidence of PW21, only PW11 the Police Constable was examined to prove the recovery. Though there is an independent witness who affixed his signature as an attesting witness to Ext.P5 recovery mahazar, for reasons best known, the independent witness was not examined. In such circumstances it is not safe even to rely on the recovery of M04 under Ext.P5, as claimed by the prosecution.
12. Even if it is taken that M04 was the gold ring of the deceased and it was recovered on the information furnished by the fifth appellant, the question is whether it will lead to an inference that it was the fifth appellant along with the others, who committed the dacoity and murder. As rightly pointed out by the learned senior counsel the murder was at a time between the night of 3.7.2005 and the morning of 4.7.2005. The recovery of M04 under Ext.P5 recovery mahazar, was one year thereafter on 7.7.2006. It is definitely not "soon after the dacoity and murder." Section 114 of Crl.A.1274 & 2549 of 2008 21 Indian Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration(a) provides that the court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. True, fifth appellant did not offer any explanation for the possession of M04. But it is because, as according to him it was never with him and it was not recovered under Ext.P5 and he did not furnish any information which led to its recovery.
13. The Honourable Supreme Court in Tulsiram v. State (AIR 1954 SC 1) considered the effect of recovery of a gold ornament, five months after the murder. As is clear from the facts of that case it was on 26.5.1949 the deceased was murdered and the Crl.A.1274 & 2549 of 2008 22 gold ornaments were stolen. It was on 28.10.1949 about five months after the murder accused was arrested and based on his information the gold ornaments were recovered. The question considered was whether based on the recovery, the presumption provided under Illustration (a) of Section 114 could be drawn. Their Lordships held:-
"7. Apart from this confession, the judgment of the High Court is based on the identification of the gold ornaments. The Sessions Judge recognised that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning, under the circumstances of the case is unsound. The alleged murder took place on 28-5-1949 and assuming that Crl.A.1274 & 2549 of 2008 23 the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the appellant being the murderer of the deceased. The important factor which appear to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under S. 114, illu. (a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the Crl.A.1274 & 2549 of 2008 24 circumstances of the case. The criticism applied equally to the reasoning of the High Court for its conclusion."(underline supplied) A three Judge Bench considered the same question in Sanwat Khan v. State of Rajasthan(AIR 1956 SC
54). The facts of the case reveal that the dead bodies of the two deceased were found lying in the temple on 1.1.1948. Based on the investigation recovery of the articles were made on 13.1.1948.
Their Lordships on the facts found that from the solitary circumstance of the unexplained recovery of the two articles from the house of the two appellants, the only inference that can be raised in view of illustration (a) to Section 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.In Earabhadrappa v. State of Karnataka (AIR 1983 SC 446) the Honourable Supreme Crl.A.1274 & 2549 of 2008 25 Court again considered the similar question. As is clear from the facts of the case, the deceased lady was throttled and murdered on the night between March 21 and 22nd 1979. The gold mangalsutra and gold rope chain were missing from the body. They were recovered on the information furnished by the accused on 29.3.1980. Their Lordships on the facts found that it is a case where murder and robbery are proved to have been integral part of one and the same transaction and the presumption arising under Illustration(a) to Section 114 of Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the transaction. It was found that prosecution led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of PW3, on the morning of March 22, 1979 where he was employed when it was discovered that the deceased had been strangulated to death and Crl.A.1274 & 2549 of 2008 26 relieved of her gold ornaments coupled with the circumstance that he was absconding for a period of one year till he was apprehended by the Investigating Officer on March 29, 1980, was taken into consideration. It was held that appellant had no satisfactory explanation for the possession of the stolen property and on the contrary, he denied that the stolen property was recovered from him. It was held that the false denial by itself is an incriminating circumstances. Their Lordships held:-
"13. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Sec. 114 of the Evidence Act is that not only, the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part Crl.A.1274 & 2549 of 2008 27 of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of P. W. 3 on the morning of March 22, 1979, when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by P. W. 26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ex. P-35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else Crl.A.1274 & 2549 of 2008 28 was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under Illustration (a) to See. 114, must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not Crl.A.1274 & 2549 of 2008 29 calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long, particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property."
It is to be born in mind that the facts of that case reveal that the accused should have been there in the house and he was found missing in the morning, when the body of the strangulated lady was found. It was also proved that he absconded for more than one year since that date. He could be found out in his village by the Investigating officer, only one year thereafter. It was immediately after his arrest, on the information furnished by him the stolen articles belonging to Crl.A.1274 & 2549 of 2008 30 the deceased were recovered. It is in such circumstance, on the facts it was found that the delay of one year will not take the case out of "soon after" as provided under Illustration (a) to Section 114 of the Evidence Act.
14. Later another Bench of the Supreme Court in State of Rajasthan v. Talevar (2011) 11 SCC 666) considered the same question and analysed the earlier decisions and summarised the law as follows:-
18. Thus the law on this issue can be summarised to the effect that where the only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in Crl.A.1274 & 2549 of 2008 31 possession of the stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof."(underline supplied).
As distinct from the facts of the case in Earabhadrappa's case (supra), there is no evidence to prove that either the fifth appellant or other appellants absconded and were not available in their houses. Though PW21 deposed that he investigated the conduct of persons, who could have involved in similar cases, and deposed that the third accused was absconding and the first accused was arrested from Ernakulam, evidence of PW10 the owner of Town Hotel at Ernakulam shows that 2 = years earlier to the date of the incident, all the appellants except the first Crl.A.1274 & 2549 of 2008 32 appellant were employed in his hotel. Eventhough first appellant was arrested at Ernakulam, appellants 4 and 5 were arrested from their native place. In such circumstances there is no evidence to prove that appellants absconded from their houses or the locality after the incident. If the prosecution case is to be accepted, the murder was for committing dacoity of the gold ornament worn by the deceased and his money. The evidence of PW19 with Ext.P12 establish that when PW19 examined the room and the scene of occurrence, he could find M09 purse containing Rs.1605/-. If the purpose of the murder was committing dacoity, it cannot be believed that appellants will leave the purse with a cash of Rs.1605/-. Therefore, especially when the evidence of PW7 shows that the appellants were not having any money and sought the help of PW7 to purchase food for that night, it appears strange. Moreover, if the purpose of the murder is to rob M04 gold ring, it is not known why the fifth appellant kept M04 gold ring Crl.A.1274 & 2549 of 2008 33 with him and that too concealed inside the inner pocket of his jeans and that too for one year. If the case is true, the attempt of the appellants would naturally be to sell the gold ring and divide the money. In the normal human conduct, if the murder was committed for dacoity of a gold ring, attempt would be to sell the gold ring immediately, especially when prosecution has a case appellants after taking the gold ornament had gone to Kozhikode where they could have easily disposed the gold ring. Added to this the evidence of PW19 with Ext.P12 scene mahazar establish that from the western paramba, along with M02 drawer the investigating officer recovered M08 chappal and M014 banian. The chappal of the deceased was recovered from the verandah of the shop room itself. Therefore that chappal could have been only that of the assailants. Prosecution has also no case that the banian so recovered was that of the deceased. If that be so, if proper investigation was Crl.A.1274 & 2549 of 2008 34 conducted the identity of the owner of the chappal and the banian could have been found out and it would have directly connected them to the dacoity and murder. It is strange that no investigation was conducted based on the chappal and the banian. The Investigating Officer had not even verified whether that chappal or the banian was suitable for any of the appellants. If that be so, it cast series doubt with regard to the identity of the assailants. It is clear that the Investigating Officer did not investigate the ownership of the banian and chappal. If investigated, it would have shown that appellants have no connection with the banian or the chappals. Added to this, evidence of PW9, though he turned hostile, shows that prosecution examined him to prove that he was approached by the appellants to rob the gold ornaments of the deceased. What was sought to be proved by the said witness was that he had gone there, along with the appellants one night, for the purpose of robing the gold ornament. But it Crl.A.1274 & 2549 of 2008 35 was not successful, as the room was closed. Even according to prosecution, PW9 was involved in twelve theft cases. If that be so and PW9 was made known that the deceased was having gold ornament and money, possibility of PW9 either of his own or with the assistance of somebodyelse committing the dacoity and murder, cannot be ruled out. When the identity of any of the assailants could not be traced out for about one year, there is no impediment if they had committed the murder and dacoity to sell M04 and that itself cast doubt with regard to the prosecution case.
15. When the entire evidence is appreciated, being a case solely depending on the circumstantial evidence, unless the facts established unerringly point out the guilt of the appellants and the facts so established are incompatible with the theory of the innocence of the appellants or that the offences were committed by others, appellants cannot be convicted based on the evidence on record. Appellants are at least Crl.A.1274 & 2549 of 2008 36 entitled to the benefit of doubt, in the light of the unsatisfactory evidence. In such circumstances conviction of the appellants cannot be sustained.
Appeals are allowed. Conviction of all appellants by Sessions Judge, Thrissur in S.C.68/2007 is set aside. All the appellants are found not guilty of the offence charged. They are acquitted. If the appellants are not wanted in any other cases, they shall be released forthwith.
M.SASIDHARAN NAMBIAR JUDGE C.T.Ravikumar Judge tpl/-
M.SASIDHARAN NAMBIAR & C.T.Ravikumar,JJ.
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Crl.Appeal No.1274 & 2549 of 2008
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JUDGMENT 6th September, 2012