Kerala High Court
Premith vs The State Of Kerala on 10 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
CRL.A NO. 315 OF 2015
AGAINST THE JUDGMENT DATED 07.02.2015 IN S.C.NO.250/2012 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT-IV, THIRUVANANTHAPURAM
(CP 66/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, NEDUMANGAD
THIRUVANANTHAPURAM)
(CRIME NO.340/2011 OF Kilimanoor Police Station,
Thiruvananthapuram)
APPELLANT/S:
PREMITH,
S/O. PRABHAKARAN, HOUSE NO. XII/286A,
KUZHIPURAYIDOMKARA, MANNARKADU, KOTTAYAM DISTRICT,
PRABHA BHAVAN, KOODAL GANDHI JUNCTION, KOODAL VILLAGE,
PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.BABU S. NAIR
SMT.M.LISHA
SRI.P.A.RAJESH
SRI.K.RAKESH
SRI.R.RANJITH K4892011
SMT.SMITHA BABU
RESPONDENT/S:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI - 682 031, FOR THE CIRCLE
INSPECTOR OF POLICE, KILIMANOOR, THIRUVANANTHAPURAM.
BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
02.09.2021, ALONG WITH CRL.A.435/2015 AND CONNECTED CASES, THE
COURT ON 10.09.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 2 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
CRL.A NO. 435 OF 2015
AGAINST THE JUDGMENT DATED 07.02.2015 IN SC 250/2012 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT-IV, THIRUVANANTHAPURAM
(CP 66/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, NEDUMANGAD
THIRUVANANTHAPURAM)
(CRIME NO.340/2011 OF Kilimanoor Police Station,
Thiruvananthapuram)
APPELLANT/S:
DILESH KUMAR @ KUTTAN
S/O SUDEVAN PILLAI,CHARUVILA PUTHEN VEEDU, PARAKONAM,
PAPPALA DESOM,PAZHAYAKUNNUMEL VILLAGE,
(DILESH BHAVAN,VATTAMAN DESOM,KARAVALOOR VILLAGE,
KOLLAM DISTRICT).
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
02.09.2021, ALONG WITH CRL.A.315/2015 AND CONNECTED CASES, THE
COURT ON 10.09.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 3 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
CRL.A NO. 680 OF 2015
AGAINST THE JUDGMENT DATED 07.02.2015 IN SC 250/2012 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT-IV, THIRUVANANTHAPURAM
(CP 66/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, NEDUMANGAD,
THIRUVANANTHAPURAM)
(CRIME NO.340/2011 OF Pangode Police Station, Thiruvananthapuram)
APPELLANT/S:
KANNAN @ KARUNAKARAN,
C.NO.9861, CENTRAL PRISON,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.GEORGE MATHEWS
SRI.PRANOY K.KOTTARAM
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY THE DGP,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
02.09.2021, ALONG WITH CRL.A.315/2015 AND CONNECTED CASES, THE
COURT ON 10.09.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 4 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
CRL.A NO. 806 OF 2015
AGAINST THE JUDGMENT DATED 07.02.2015 IN SC 250/2012 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT-IV, THIRUVANANTHAPURAM
(CP 66/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEDUMANGAD,
THIRUVANANTHAPURAM)
(CRIME NO.340/2011 OF Pangode Police Station, Thiruvananthapuram)
APPELLANT/S:
NAVAS
AGED 43 YEARS, S/O BADARUDEEN,
CHARUVILA PUTHEN VEEDU,KARIYODE, PARUTHIUYIL,
NILAMEL VILLAGE,KOLLAM DISTRICT.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.M.M.DEEPA
SRI.V.C.SARATH
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
02.09.2021, ALONG WITH CRL.A.315/2015 AND CONNECTED CASES, THE
COURT ON 10.09.2021 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 5 -
K. Vinod Chandran & Ziyad Rahman A.A, JJ.
-------------------------------------
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
-------------------------------------
Dated, this the 10th September 2021
JUDGMENT
Vinod Chandran, J.
The 'night-watchmen' are a lot, generally ill-
equipped and ill-paid, who often stake their lives to offer
nothing more than a sense of security to those, whose
property they watch over. Little resistance can be offered to
a concerted robbery by the sole emaciated man, we often see
armed with a smouldering mosquito coil on the veranda of shop
rooms; where they spent the night guarding over the effects
of a man or woman slumbering in their opulent homes, on soft
beds. We have here an incident in which a night watchman,
guarding a jewellery, was murdered and his body dumped in a
well in the course of a dacoity executed in the night of
05.05.2011 or the wee hours of the sixth.
2. There were fourteen arrayed as accused in the
trial, wherein documents were numbered as Exts.P1 to P99 with
multiple documents under the same number differentiated by
alphabets through 90 witnesses, who also marked 128 material
objects with many marked as one series. The defence examined
two witnesses and marked ten documents as Exts.D1 to D9 &
D9(a). The Court too marked four exhibits. A7, A9 and A10 to
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 6 -
A14 stood acquitted. A2 expired before trial and A4 & A5 are
still absconding. A1, A3, A6 & A8 are the appellants before
us. A3 was convicted under Sec.449, 392, 302 and 120(B) read
with 392 of the Indian Penal Code [for brevity, 'the IPC'].
A1, A6 & A8 were found guilty under Sec.120(B) read with
Sec.392 IPC. The case set up by the prosecution is entirely
hinged on circumstantial evidence. In the present appeals, we
are only called upon to decide on the evidence led, to
establish the culpability of the appellants herein; one of
whom (A3) is convicted for the offence of murder in the
course of house trespass, robbery and for conspiracy. The
other appellants are convicted for the offence of robbery and
the conspiracy leading to the same.
3. Sri.P.Vijayabhanu, learned Senior Counsel,
instructed by learned Counsel Smt. Sanjana Rachel Jose
appeared for A1 & A6. Sri. Babu S.Nair, learned Counsel,
appeared for A8 and Sri. Pranoy Kottaram, learned Counsel,
appeared for A3.
4. Sri. Vijayabhanu argued that there is not even
one circumstance proved against any of the accused. The
evidence led on conspiracy falls short of proving it and
there is nothing connecting the crime to the accused. The
only evidence led is of recovery of the thieved ornaments,
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 7 -
some of which were alleged to have been converted to gold
ingots. There can be no conviction for robbery or murder
based solely on recoveries; which in this case are not
reliable to even establish possession of stolen property.
There is nothing to prove that the recovered ornaments were
those thieved from the jewellery. The robbery is alleged to
have been made from a jewellery, which has a statutory
obligation to maintain a Stock Register. But for the
identification made by the owner of the jewellery, there is
no proof offered of the possession and ownership of the
articles recovered. A manual Stock Register is said to have
been handed over to the Investigating Officer [for brevity,
'the I.O'], which was not produced before Court nor were the
recovered articles verified and tallied with the stock held
by the jewellery as per the register. Though an identifying
mark is referred to by certain witnesses, the owners of the
jewellery do not speak about it. The prosecution did not
attempt to elicit any identifying mark on the articles
thieved from the jewellery. On the contrary, the I.O. deposed
that no such distinguishing mark was stated by the owners.
Each of the recoveries made concerning A1 & A6 were also
challenged with reference to the evidence of witnesses
examined to prove the same. It is pointed out that A1 has
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 8 -
been roped in also on the alleged confession made by A8
concerning the recoveries effected from that accused. The
confession itself is inadmissible under Sec.27 of the
Evidence Act. The confessions read as, the recovered articles
being handed over by one Kuttan; whose identity is not
decipherable. Only the I.O says that Kuttan is A1 and A1's
wife, who was examined, was not asked whether he was known by
that name in any circle.
5. Sri. Babu S.Nair learned Counsel points out
that as far as A8 is concerned, there is a complete lack of
evidence regarding the conspiracy. The circumstances alleged
by the prosecution does not at all connect the accused and
the entire case rests on conjectures and surmises without any
valid evidence led to connect the accused with the crime. The
call details though produced prove absolutely nothing, not
even a casual contact between the various accused arrayed.
The trial Court itself has not reckoned the evidence led on
that count. The seizures made from the house of A8 are
articles of daily use and there is not even an explanation as
to how these are connected to the crime. The learned Counsel
specifically pointed out that an LPG cylinder was seized from
A8's house without any reason. The specific case of the
prosecution is use of some gas cutting equipment to break
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 9 -
into the locker; which cannot be with LPG. The rental of a
car, which is said to have been used in the commission of the
crime, even as per the evidence led by the prosecution is not
at any time proximate to the alleged crime.
6. Learned Counsel Sri. Pranoy Kottaram relies on
Ramreddy v. State of Andhra Pradesh, (2006) 10 SCC 172 to
urge the trite position of law regarding proof in cases,
where the prosecution is entirely based on circumstantial
evidence. There is not even one circumstance that connects
the accused to the crime and in the case of A3, the trial
Court has presumed that he was part of the robbery, based on
which presumption, a further presumption on murder is also
drawn. This is quite contrary to the law declared by the
Hon'ble Supreme Court in Suresh Budharmal Kalani @ Pappu
Kalani v. State of Maharashtra, AIR 1998 SC 3258. The learned
Counsel also took us through the evidence of those witnesses
paraded before Court by the prosecution to argue that there
is no proof offered for his culpability in the offence of
robberry and much less of murder.
7. The learned Public Prosecutor, Sri. Alex
M.Thombra submitted that PW1 is the most competent witness to
attest and identify the recovered gold articles. He is the
owner of the shop and he identified each of the ornaments
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 10 -
from the property list and the material objects shown to him
in Court. The recoveries unerringly established the
involvement of the accused and they had no explanation for
the possession of the ornaments thieved from the jewellery.
Sec.114, Illustration (a) of the Evidence Act squarely
applies. The accused were moving together before and after
the crime. They were arrested and recoveries were made from
their body. Based on confession statements, the Police
carried out a series of recoveries from third parties, with
and to whom, the accused had pledged and sold the ornaments.
A huge amount of cash was also recovered from the accused.
The conspiracy is very clearly established and so is the
commission of robbery, in the course of which the three
persons involved in the actual commission, murdered a poor
watchman. The body of the watchman and the articles used for
the commission of crime were dumped in a nearby well. The
booty was shared by the actual perpetrators and the
conspirators, whose confession statements led to the
recoveries. The prosecution has unerringly established the
circumstances leading to the culpability of the accused and
the appeals are to be dismissed, argues the Prosecutor.
8. Before we look into the evidence, we first
perused the charge sheet. As per the charge-sheet, A1 to A10
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 11 -
entered into a criminal conspiracy to commit dacoity in
Jaseena Jewellery. In furtherance of such common object, A3,
A4 & A5 are alleged to have committed the actual dacoity.
Having made arrangements and travelled to the jewellery in a
car, A3 to A5 forcefully took the Security Guard to the
adjacent School compound and beat him with a reaper as also
strangulated him, thus committing his murder. A3 to A5 then
broke open a wall to enter the jewellery and committed
dacoity by removing 1066 gms of gold ornaments valued at
Rs.2,15,000/- [Rupees Two lakhs fifteen thousand only] and
two watches one a 'Rado' and the other a 'Rolex'. A1 and A6
to A10 are alleged to have abetted the commission of the
above offences. A1 by arranging the stay of A3 to A5 and a
car, KL 22B 3032, as also having waited outside when the
dacoity was carried out. A2, who is no more, was alleged to
have made available a gas cutting gun, A8 an LPG cylinder,
the latter of whom had also transported the same to the
School compound. A3 to A5 are also alleged to have caused the
disappearance of evidence by throwing the cylinder, a chair
and the dead body of the deceased into a nearby well. A11 to
A14 were alleged to have dishonestly received stolen
property. As we noticed, except for the appellants and A4 &
A5, all the other accused have been acquitted.
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 12 -
9. We are not dealing with the evidence led, to prove
the involvement of the acquitted accused, as it has been
disbelieved by the trial Court. We also notice that PW55 to
PW57, PW76 to PW78 and PW89 are authorised Officers of mobile
phone service providers, who marked various documents
regarding the call details of different mobile numbers.
However, the prosecution has not established the ownership of
the various subscriptions; nor identified their tower
location or even connected the call details, to even barely
evidence constant contact between the various accused
arrayed. The trial Court itself has found in paragraph 38
that only A3 has been shown to be the subscriber of one of
the mobile numbers and there is no connection established
even between A1 & A3, who were projected as using two mobile
numbers. When the identity of subscribers, call details and
the tower locations are not established, there cannot be any
proof of conspiracy from the evidence of the said witnesses.
We do not propose to at all discuss the evidence of the said
witnesses.
10. The FIS-Ext.P1, was by PW1, the son of the
owner; who was examined as PW2. PW1 deposed in tune with the
FIS. On the previous night, the night watchman was attending
a wedding reception and joined duty only at 9 p.m. Having
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 13 -
come to the premises, he called PW2, the owner and father of
PW1, to inform that he had commenced his duties. PW1 at 9 a.m
on 06.05.2011, opened the jewellery and saw the shop in
disarray. The entire ornaments on the display board were
missing. He rushed to the locker room and found an
unsuccessful attempt to break into the locker room. On the
backside wall of the shop, there was a hole drilled, through
which a person could wriggle in. The Security Guard was not
seen anywhere and local people gathered at the crime scene.
Somebody informed him that there was a body inside the nearby
well. PW1 immediately informed the Sub Inspector, who deputed
3-4 policemen to the scene of occurrence. PW1 gave the FIS to
one of them. Later he was repeatedly summoned to the Office
of the Circle Inspector, where he was shown the accused and
the recovered articles.
11. PW1 identified MO1 to MO22, some of which
marked, have multiple items as a series. He identified the
objects on sight and cross-verifying them from the property
list with specific reference to the thondy numbers. In cross-
examination, first by A1, he said there are distinguishing
marks in the ornaments kept in the shop and that was stated
to the police. Later in cross, by A3, he said that the
distinguishing marks were not stated to the police. He also
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 14 -
confirmed that he regularly paid tax and the registers
maintained at the shop would disclose the sales as also the
stock retained in the shop. He also asserted that there was
in existence a stock statement, which was shown to the Police
but returned to him. In cross-examination, PW1 stated that
usually the displayed items are kept in the locker room
before the shop is closed and on the crucial day there were
items left on the display board since on the next day it was
'Akshaya Tritheeya'. It was also admitted that on the night
of 05.05.2011 his father closed the shop.
12. PW2, the owner of the shop, corroborated PW1 on
what happened in the morning of the day after. PW2 verified
the stock remaining at the time of closure on 05.05.2011. He
stated that there were a total of 13 Kilograms in the locker,
out of which 1½ kilograms was displayed, which display was of
small ornaments. He confirmed that the registers maintained
would clearly indicate the opening and closing stock of the
shop. In cross-examination for A3, a specific question
was put whether the witness had spoken about the
distinguishing marks 'JSM' on the ornaments. PW2 answered in
the affirmative. Ext.D1 contradiction was insofar as the
witness stating to the Police that before closing on
05.05.2011, the entire ornaments, including those displayed,
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 15 -
were secured in the locker. An attempt was made to explain
Ext.D1 in re-examination by the prosecution and PW2 clarified
that what was kept inside the locker were those ornaments
displayed, but not including those kept in the 'corner box'.
To another specific question in re-examination, PW2 also
answered that what was lost were the ingots and cash kept
inside the table and those ornaments kept in the corner box.
13. We have to immediately notice that there were
no distinguishing marks on the ornaments of the jewellery, as
disclosed to the Police by PW1. PW1 had different versions on
the distinguishing marks on the ornaments. The evidence of
PW2 is that the distinguishing mark revealed to the Police
was 'JSM'; while the mark seen in some of the ornaments is
'JSJ'. PW90, the I.O, in cross-examination at page 96
specifically deposed that the description marks or
identifying particulars of the stolen ornaments were not
stated by the owners. We notice this since pertinently some
of the witnesses had identified a mark 'JSJ' on some of the
recovered ornaments. PW90 also deposed that the owners had
not identified the recovered objects with reference to any
marks. Pertinent is also the fact that there was no physical
stock register produced before Court or cross-verification
carried out, of the material objects, with such a stock
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 16 -
register. PW90, the I.O., on page 100 of his deposition
categorically stated that the manual stock register was
handed over to the I.O. It was also stated that the computers
were not seized since the statement of stock was printed out
from the computer. None of these is seen produced in Court
and the I.O does not speak of any cross verification carried
out with these documents on effecting the recoveries. The I.O
has not carried out any inventory of the stock available in
the jewellery and ascertained, the ornaments stolen, from the
stock register maintained. There is no complaint made by PW1
or PW2 as to the exact ornaments lost from the shop, which
they could have easily specified. We find force in the
submission of the learned Senior Counsel that the ownership
and possession of the MOs recovered have not been proved.
Now, we come to the evidence led specifically as against the
appellants herein.
The Evidence against A1:
14. The items recovered on the confession of A1 are
MO12 series of four gold rings, MO10 series of six gold
coins, 4 gold rings, one bracelet and a pair of ear-drops as
also MO31 iron lever. On the arrest of A1, interalia, some
pledge receipts in the name of A7 and A8 were seized by
Ext.P58. In addition, certain pay-in-slips, four SIM cards,
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 17 -
currency of Rupees one lakh, a watch and three mobile phones
were recovered. The four gold rings (MO12) were recovered as
per Ext.P15 mahazar on the strength of Ext.P15(a) confession.
PW18 is the mahazar witness and the I.O. proved the
confession. The confession was to the effect that A1 had
concealed the four rings in the backside of the rental
residence of his family. Though PW18 stated that four rings
were taken from the residence of A1, he did not clearly
identify them. He only said, he thinks the rings shown are
that recovered. The Sessions Judge too noticed the
identification as not correct. PW18 also said that he did not
see the rings being recovered but was shown them in a packet.
No reliance can be placed on the circumstance of this
recovery.
15. M010 series was recovered by Ext.P56 mahazar
based on Ext.P56(a) confession statement on 28.06.2011. The
confession statement was to the effect that the gold coins,
rings, bracelet and ear-drops were handed over to a friend of
A1, by name of Ramar, who is examined as PW71. PW71 was
acquainted with A1 when they spent time together in prison;
less said the better about the antecedents of the witness and
also that of A1, which has no bearing on this case. A1
approached PW71 to pledge ornaments for purchasing a lorry.
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 18 -
The ornaments were shown to PW71 and together they
unsuccessfully attempted to pledge those. PW71 then pledged
the RC Book of his tourist van, the proceeds of which coming
to Rs.1.5 lakhs was handed over to A1. He identified MO10
series as those recovered by the police. It has to be
emphasized that the prosecution, in chief examination, did
not elicit the exact time or day on which A1 is said to have
approached PW71 for pledging the ornaments. In re-
examination, PW71 said that "I think it was on 28.06.2011",
without any indication as to the incident that occurred on
28.06.2011. He also stated that it was a month before that he
pledged the RC Book and that he can correctly state the date
only if he ascertains it from the documents of pledge.
Despite the attempt in re-examination, we do not have any
concrete date on which the transaction referred by PW71 had
occurred; whether it was before or after the theft thus
putting to peril this recovery too.
16. MO31 iron lever is recovered by Ext.P21
mahazar, based on Ext.P21(a) confession. The confession is to
the effect that the iron lever was concealed in the shrubs
near the wall behind the 'borma', where one Shiju
manufactures bakery items. The mahazar witness, PW24
identified both A1 and A3 in court and stated that it was A3
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 19 -
who recovered the iron lever, thus exonerating A1 with regard
to the said recovery.
17. The arrest of A1, A3, A6 & A9 was made when the
police waylaid the car they were travelling in, on
20.06.2011. PW73 witnessed the arrest and seizure of MOs from
each of these accused. Ext.P58 was the seizure mahazar, which
was not identified or marked through the said witness. Seven
pledge receipts, three in the name of A7 and four in A8's
name, were recovered from A1. In addition to this, a bill of
'Cheers India, Industrial Gases', in the name of A2, some
personal effects, a watch and dress were also recovered from
A1. A7 has been acquitted and the pledge receipts of A8 will
be dealt with while discussing the evidence against A8. As to
the bill in the name of A2, the prosecution attempts to
establish the purchase of the Oxygen Cylinder to use the gas
cutting equipment to break open the locker in the jewellery.
PW17 is the witness to Ext. P14 Mahazar, by which documents
relating to registration made by A2 for purchase of Oxygen
Cylinder was seized. The documents were seized from 'Cheers
India, Industrial Gases', whose Manager was examined as PW36.
PW36 affirmed that A2 had purchased two cylinders, one of
which was returned. MO34 was identified as the Cylinder
purchased by A2. MO34 was seized as per Ext.P28 Mahazar in
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 20 -
which there were two witnesses, the father of A8, who is said
to have surrendered MO34 before the office of the I.O and
PW32. PW32 alone was examined, but he has not specified the
location of the seizure. In any event, even according to the
I.O, the cylinder was surrendered at his Office and Ext.P28
indicates that the father of A8 has a workshop. There is no
identification by PW36 that MO34 is the one taken by A2 and
there is no distinguishing mark in the cylinder purchased by
A2. There is also nothing to indicate that MO34 has any
connection with the crime and the attempt seems to be to
allege that A8 carried out some experiment with MO34, which
again we will discuss later. There is in fact another Oxygen
Cylinder, recovered from near the crime scene, which was
dumped in the well. There is no incriminating circumstance
against A1 coming out of the seizure of the bill from his
body since MO34 is not the Cylinder seized from the crime
scene; which is MO33.
Evidence against A6:
18. Coming to A6, recovery is made of MO2 gold bar,
MO11 ingot and gold ring with the mark of 'JSJ' and a Rolex
watch, the last two recovered at the time of the arrest. MO2
gold bar was recovered as per Ext.P41 mahazar, proved by
PW49. The confession of A6 is to the effect that a gold bar
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 21 -
was broken by a goldsmith in Thrissur and a piece of it was
sold in his jewellery. PW49 is the goldsmith, who handed over
MO2 gold bar to the police. The said witness only speaks of
the seizure of 10 grams of gold in the form of a broken ingot
from him and he also confirmed the presence of A6 at the time
the seizure was made. There is nothing stated as to who gave
him the ingot, despite A6 having been identified as being
present at the time of recovery. No reliance can be placed on
Ext.P41 or PW49 as against A6.
19. MO11 ingot was recovered as per Ext.P54
mahazar. PW67 and PW68 are the witnesses. The said recovery
was made by PW83 S.I.of Police on the instruction of the I.O.
The confession at Ext.P54 is to the effect that two bangles
were sold in a jewellery at Mananthavady town. PW68 is the
owner of the jewellery who purchased the stolen property.
PW67 is an adjacent shop owner, who was summoned since PW68
was not conversant with Malayalam. PW67 spoke of the
recovery, identified A6's presence at the time of recovery
and also identified MO11 ingot. PW68 identified A6 and stated
that he sold two bangles to PW68. He handed over MO11 ingots,
which he claimed to be obtained on melting the two bangles.
The witness, however, does not speak of any description of
the bangles sold to him; nor does he speak of the exact date
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 22 -
on which A6 sold the bangles to him, which again makes the
entire recovery unreliable to pin the crime on A6. On the
arrest of A6, a gold ring with a 'JSJ' mark is said to have
been recovered from him (Ext.P58 Mahazar, PW73 Witness);
which mark is not proved to be available in the ornaments
stocked for sale in the jewellery.
Evidence against A3:
20. Now we come to A3, who is arrested along with
A6 and again a gold ring having the mark 'JSJ' was recovered
from his body (Ext.P58 Mahazar, PW73 witness). What we said
in the case of A6, of a similar recovery made applies
squarely. MO5 series is a watch and gold ring recovered as
per Ext.P53(a) confession by Ext.P53 mahazar. A3 is said to
have confessed that the said objects were concealed in his
house, based on which the recovery was carried out. PW66 is
the mahazar witness, who was a Village Administrative
Officer. He identified A3 and confirmed that a Rado watch and
gold ring were recovered from A3's house. He identified the
articles from the ornaments and watch produced by PW1 in
court. There is no identification recorded as to the specific
material object before court. The ring was also identified as
having the mark 'JSJ', which again cannot be traced back to
the stolen articles from the jewellery.
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 23 -
21. The recoveries were made by Ext.P58 mahazar
when A1, A3, A6 and A9 were arrested on 20.06.2011. The
mahazar witness was PW73. Many items were seized as per
Ext.P58 mahazar, which were found on the body of the accused
arrested on that day. MO17 and MO18 were the gold rings
seized from A6 and A3, which have the mark of 'JSJ'. PW73 has
specifically spoken of the mark 'JSJ 916'. The prosecution
attempted to connect the said recoveries to those ornaments
stolen from the jewellery. However, as we noticed, there is
no evidence led as to any distinguishing mark available in
the jewellery, kept on display, in the corner box or stolen
from the jewellery. Hence the said recoveries do not in any
manner inculpate the accused, specifically A3 and A6.
22. MO30 series are gas cutting gun, meter and hose
recovered on 27.06.2011 by Ext.P20 mahazar. PW24 is the
witness, who has earlier spoken of all the articles being
recovered by A3 in the presence of police. It is the
allegation of the prosecution that the said gas cutting gun,
meter and hose were used in the crime committed in the
jewellery of PW1 and PW2. But for the allegation and the
assumption that the perpetrators of the crime would have used
a gas cutting gun, meter and hose in the operation; which
reveals an attempt to break into the locker, there is nothing
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 24 -
to connect the recovered items to the crime. As was argued
by the learned Counsel, there is no scientific evidence as to
any fingerprint or even telltale signs of the said articles
having been specifically used in the robbery committed.
23. A3 has been convicted under Section 302 on very
sketchy findings as argued by the learned Counsel. The
specific finding is available in paragraph 31 of the impugned
judgment. The learned trial judge noticed the allegation
against A3, which was of having committed dacoity along with
A4 and A5. A3 is alleged to have struck the security staff
with a wooden reaper; a mere assumption without any proof. It
was noticed that the recovery of the stolen articles on the
strength of confession statements by A3 is a strong
circumstance throwing light on the involvement of A3; again
according to us devoid of proof. The arrest of A3 and the
possession of a considerable share of the booty was found to
be an additional circumstance, giving further strength to the
prosecution allegation. Then the circumstance of A3 having
been found in the company of A1 and A6, alleged to be the
main conspirators as spoken of by PW58 was noticed, which was
emphasized as conduct relevant under Section 8 of the Indian
Evidence Act. The recovery of implements used for the
commission of the offence was also observed to be a
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 25 -
compelling circumstance; not established as we see it. The
learned judge then considered the allegation of dacoity and
the charge itself being only of three persons having been
involved in the crime proper, to hold that the charge of
dacoity would not survive, but a charge of robbery would
definitely lie against the said accused. Even the charge
speaks of only three being involved in the robbery with one
standing vigil; definitely falling short of the five required
to allege dacoity. The learned judge noticed two decisions;
Mukudu @ Kundu Mishra v. State of MP, 1997 KHC 1208 and Saji
v. State of Kerala, 2007 (3) KLT 151. The learned judge then
found that, with the above proposition of law in mind, an
analysis of the evidence on record, would indicate the motive
of the theft and the offence of robbery and murder committed
in the course of same transaction. "Therefore, it can safely
be presumed that A3 is not only the robberer but also the
murderer" (sic) was the specific finding recorded. The
learned judge erred egregiously in presuming the robbery and
then based on such presumption, drawing a further presumption
of murder.
24. We have found that the circumstances to establish
robbery, as projected by the prosecution before Court, was
that of conspiracy and the possession of the booty; the
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 26 -
latter allegedly proved through the recoveries. We have
considered each of the recoveries and found them to be
unreliable. There is no proof of ownership, of the recovered
articles, by the jewellery, since the exact articles stolen
have not at all been specified. There is also no valid
evidence for conspiracy but for the fact that some of the
accused, before and after the crime moved and stayed
together. Without something more to connect the accused to
the crime, we are unable to believe the story of a conspiracy
or the sharing of booty alleged. The cited decisions are to
the effect that if the robbery is proved, and the murder is
found to be arising out of the very same transaction, then
the person in possession of the stolen ornaments can be
presumed to have committed the murder. The fact of the
accused having committed robbery is not established and the
recoveries are disbelieved, in the context of which, the
decisions have no application. Suresh Budharmal Kalani @
Pappu Kalani (supra) is relevant as it held: "A presumption
can be drawn only from facts- and not from other presumptions
- by a process of probable and logical reasoning."(sic)
Evidence against A8:
25. As against A8 also the sole evidence is again
recovery of the thieved ornaments and several items which the
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 27 -
police imagines that the accused used in the dacoity. MO4
series was recovered as per Ext.P12 mahazar from Manappuram
Finance. PW15 & PW41 are witnesses to Ext.P12, who merely
stated that A8 is known to them and A8 has pledged ornaments
in the Finance Company, where they were working. They handed
over the records and ornaments to the Police. They were not
asked to identify the ornaments. The recoveries are made
before the arrest of A1, from whom the pledge receipts in the
name of A8 were recovered. If the pledged ornaments were
established to be those stolen, probably the pledge and the
recovery would barely establish a conspiracy. That having not
been established, the above circumstances are rendered
useless.
26. In addition, MO36, 39, 40 and 80 to 85 were
recovered from A8's house, all household items. The seized
articles were found by the trial court itself in para 59 of
the judgment to be not incriminating articles having any
connection with the crime. PW72 has been arrayed as a witness
to speak on an experiment said to have been carried out in a
workshop from where metal pieces were recovered as per Ext.
P57 Mahazar. The story set up by the prosecution is that A8,
before the actual dacoity, used the gas cutting appliances to
verify whether it can effectively cut into the locker of the
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 28 -
jewellery. The metal pieces were recovered from a workshop
and nobody is seen examined from the workshop to speak on the
specific act done by A8. PW72 only speaks of recovery and
cannot speak on how the metal pieces were left there. This
again is another figment of imagination based on which the
prosecution has built the case against the accused. PW90
states that the workshop belongs to the father of A8, without
any documentary proof. All the same, if that is true, the
presence of A8 in his father's workshop cannot be questioned
nor can the presence of metal pieces in a workshop, give rise
to any inference, as the prosecution would seek us to draw.
27. The other evidence as against A8 is the rental
of a car alleged to have been used in the crime. It is the
prosecution case that the car was rented out by A8, in which
the perpetrators came to the crime scene and also carried the
materials to break into the jewellery. PW32, 33 and 34 are
the witnesses arrayed to prove the fact. PW32 had a Rent-A-
Car business, who said that A8 had rented out a Maruti Alto
car with registration number KL-22B-3032 on 12.03.2011, two
months before the alleged incident. He also rented out a Jeep
with registration number KL-16-E-5112 to A1, in the 2nd week
of April. It was further stated that a Santro car with
registration number KL-16-E-6262 was also rented out by A1.
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 29 -
In the month of May, all these vehicles were under repair in
a workshop is the evidence of PW32. The police seized three
vehicles, the Alto and Santro cars referred above and a
Hyundai Accent from the business place of PW32; the last
without any rhyme or reason according to us. The scientific
examination carried out in the cars seized did not reveal any
incriminating circumstance.
28. PW33, an acquaintance of A8, deposes that the
rental of the car was in connection with the marriage of A8
and he introduced A8 to PW32. PW34, the employer of A8
deposed that, on 20.03.2011 he paid the rent for a car for
three days, which car was rented out in connection with the
marriage of A8. The evidence led, concerning the rental of
the car does not at all relate to the crime which occurred in
the night of 05.05.2011. There is also a further instance of
A8 having made some repairs to the car as deposed by PW42
and PW58, which again does not have any connection with the
crime. The attempt was to establish that the perpetrators had
come to the crime scene in the Alto car, carried out the
murder and robbery and got away in the same car and some
damage was caused to the car in the process; none of which
stands established and remain as mere speculations. The
rental itself is seen to be long before the crime. The cars
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 30 -
were stated to be under repair in May, on the 5 th of which
month, the crime was committed.
29. As argued by the learned Senior Counsel,
though many recoveries of ornaments alleged to have been
robbed from the jewellery were put forth in evidence before
court, the recovered ornaments were not proved to be the ones
owned and possessed by the jewellery. Illustration (a) of
Section 114 of the Evidence Act arise only when the articles
recovered are established to be those stolen. The dacoity
alleged by the prosecution is of a jewellery where statutory
forms and registers are to be mandatorily maintained,
especially concerning the stock retained in the shop. The
stolen articles are also said to be not those in the locker
or displayed, but kept inside the table and in a corner box.
The stock register would have disclosed the description of
the ornaments and an inventory of the ornaments in the locker
would have revealed the exact ornaments which were stolen
from the jewellery. The I.O specifically said that a manual
stock register was handed over to him, but there is no such
verification carried out from the ornaments left in the
locker of the jewellery, nor has the recovered ornaments been
tallied with the specific items in the stock register. The
I.O also deposed that the print-outs of details of stock was
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 31 -
taken from the computers. Neither the stock register nor the
print-outs from the computers in the shop, of details of the
stock, were produced in evidence. Only two witnesses, PW66 &
PW73 spoke of the mark on the recovered ornaments,
identified as 'JSJ'. The owners of the jewellery did not
speak of any distinguishing mark for identifying the stolen
articles. PW1 in cross-examination of A1 first gave a very
evasive answer as to there 'could' be a distinguishing mark.
Then when A3 cross-examined, PW1 categorically stated that
there is no distinguishing mark disclosed to the police. PW2
said the mark was 'JSM' but the I.O said no
distinguishing mark was informed to the police. None of the
recoveries can be said to be of the ornaments thieved from
the jewellery.
30. The recoveries, though said to be under the
confession of the various accused, does not lead to an
inference that the confession is of the crime. It is trite
that the confession which can be accepted is only that of
concealment and there should be clear evidence as to the
recovered objects having a connection with the crime; which
is for the prosecution to establish Pulukuri Kottayya, AIR
1947 PC 67. The recovered objects have not been proved to be
owned and possessed by PW1 and PW2 and displayed in their
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 32 -
jewellery. As to the other materials recovered of implements
used making a hole in the wall and attempting to cut into the
locker, it remains a figment of imagination without any
telltale signs on the implements or scientific evidence
regarding any connection with the crime. The confessions of
A8 are paraphrased with the statement "Kuttan handed over";
which 'Kuttan' has not been identified. It is only the I.O
who asserts that A1 is known also as Kannan. A1's wife was
examined as PW4, but she was not asked about any other name
by which A1 was known. More significantly, the confession of
the accused to the police to the extent of involvement of a
co-accused in the crime, is inadmissible Pulukuri Kottayya
(supra).
31. At best it can be said that on an inspection of
the crime scene, the police could make out what transpired
therein on the night of 05.05.2011. A hole was made in the
wall and an attempt was made to break into the locker. On the
assumption that an iron lever would have been used and
cutting implements, specifically gas cutting ones, the police
went around recovering the objects which would probably have
been used in the commission of the crime. All these objects
are available in the market and are things used in daily life
and as to the gas cutting equipment, used extensively in job-
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 33 -
works and the like; for example in workshops. Unless the
recovered objects are connected with the crime by some
evidence; ocular, by way of proved circumstances, scientific
or otherwise; there cannot be a connection found merely for
the sole reason of the recovery of such items from the
possession or residence or workplace of the accused.
32. There is absolutely no evidence as to the
presence of the perpetrators of the crime on the day or
rather the night the robbery was committed. The version that
A3 to A5 along with A1 carried the items to the crime scene
and A3 to A5 broke into the jewellery, while A1 was keeping
vigil outside, are products of a fertile imagination; not
substantiated by valid or cogent evidence, either
documentary, scientific or circumstantial. The circumstances
proved collectively does not permit any reasonable inference
of such a crime having been committed by the appellants
herein. True there was a break-in, through a hole drilled in
the backside wall of the jewellery, gas cutting implements
were used and an attempt was made to break into the locker,
which failed. An oxygen cylinder, MO33, was recovered from a
well in which the body of the security guard was also found.
It is attempted to be established through PW 29 that the
cylinder was stolen from his workshop; which again offers no
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 34 -
clue as to who stole it. Based on the story scripted,
recoveries were made of several types of equipment on mere
probability, but however without any connection being proved
to the crime or the appellants herein.
33. To prove the conspiracy alleged, many of the
accused in separate groups were said to have occupied lodge
rooms before and after the incident. They also are shown to
have travelled together in hired vehicles. But that alone
does not prove the conspiracy, especially when the crime
proper has not been pinned on the accused put to trial. Call
records were also produced but without any evidence as to the
subscribers, tower locations or at least frequent calls
having been made between the accused. We hasten to add that
even if there were frequent calls between the accused and
that they had stayed together and separately in lodges,
before and after the incident, that alone cannot prove the
conspiracy to commit the crime unless the involvement of the
persons in the crime proper is brought out effectively and
substantially before court. The prosecution has miserably
failed to establish any circumstance against the appellants.
We do not find any reason to sustain the conviction of any of
the appellants herein. We set aside the judgment and allow
the Appeals. The appellants herein shall be released
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 35 -
forthwith, if they are not wanted in any other case, if
undergoing imprisonment and if released on parole or interim
bail, all bail bonds shall stand cancelled. Any amounts paid
as per the judgment of the trial court, as fine or
compensation shall be released forthwith to those who
deposited it, at any rate within one month from today.
34. Before leaving the matter, we cannot but
address the issue of a poor security guard having been
murdered in the course of the robbery carried out. That a
robbery was carried out is very clear and there is enough
evidence to that end. The deceased was an employee of the
jewellery as stated by PW1 and PW2, a security guard engaged
to stand guard at night. The owners, the son and father were
running the jewellery and were in the status of the employer
of the deceased. From the above, it is crystal clear that the
deceased met his death in the course of employment. On our
request, the learned Senior Counsel also produced before us
the Kerala Victim Compensation Scheme, 2017. We see from the
Scheme that a maximum amount of Rupees Two lakhs can be
granted as compensation for the death of an individual, which
computation has to be made by the District Legal Services
Authority. We also take note of the provisions of the
Employees Compensation Act, 1923 wherein the Commissioner
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 36 -
designated can suo motu, under Section 10-A, proceed against
the employer on a death reported under the Employees
Compensation Act. We are also informed that the Industrial
Tribunals are notified as the Commissioners under the Act.
35. We notice the decision of the Hon'ble Supreme
Court in Rita Devi v. New India Assurance Co.Ltd. 2000 ACJ
801 (SC). It was stated so in paragraph 10:
"10. The question, therefore is, can a
murder be an accident in any given case? There
is no doubt that "murder", as it is understood,
in the common parlance is a felonious act where
death is caused with intent and the
perpetrators of that act normally have a motive
against the victim for such killing. But there
are also instances where murder can be by
accident on a given set of facts. The
difference between a "murder" which is not an
accident and a "murder" which is an accident,
depends on the proximity of the cause of such
murder. In our opinion, if the dominant
intention of the Act of felony is to kill any
particular person then such killing is not an
accidental murder but is a murder simpliciter,
while if the cause of murder or act of murder
was originally not intended and the same was
caused in furtherance of any other felonious
act then such murder is an accidental murder."
36. In the present appeal, the victim, the night
watchman was killed in the course of a robbery, but the
accused arraigned have been acquitted by us in the appeal
since there is no evidence to find them guilty. That does not
detract from the fact that the night watchman was killed in
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 37 -
the course of a robbery committed in the establishment.
Hence, the murder caused in furtherance of the other
felonious act of robbery is an 'accident', which is also in
the course of the employment as a night-watchman.
37. In such circumstances, it is only proper that
the Commissioner notified under Sec.20 of the Employees
Compensation Act, initiate proceedings under Section 10-A
against the employer of the deceased. The details of the
deceased and the employer are shown hereunder:
Name - Raveendran Nair
Occupation - Watchman
Employer - Jaseena Jewellery, Kallara
District - Thiruvananthapuram
Date of death - 06.05.2011
Age at Death - 61 years
Salary in 2011 - Rs.8500/-
Schedule IV Factorial - 113.77
38. The Industrial Tribunal, Kollam shall initiate
proceedings and issue notice to the employer as also the
family of the deceased. The Station House Officer having
jurisdiction over the area, the SHO Pangode, Kallara, shall
within a period of one month produce the full address of the
employer and the family of the employee before the Industrial
Tribunal, Kollam, who shall initiate proceedings and also
consider the question of limitation under the proviso to
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 38 -
Sec.10 of the Act, after hearing the employer and keeping in
mind the special circumstances under which the dependent
family was not aware of the remedy and no attempt is made to
take a proactive initiation of proceedings, permitted under
Sec.10-A of the Employees Compensation Act. We notice the
lack of administrative machinery for the Commissioners
notified and are raising a suo motu writ petition on that
aspect. That apart, in this specific case the notified
Commissioner, the Industrial Tribunal, Kollam shall proceed
in accordance with law. It is made clear that the condonation
of delay and the final order has to be passed in accordance
with law and not peremptorily by reason only of directions
issued by this Court. As to the employer-employee
relationship the evidence of PW1 and PW2 in this case can be
relied upon.
39. Meanwhile the DLSA, Thiruvananthapuram shall
compute the compensation payable under the Victim
Compensation Scheme and make the payment to the dependent
family within a period of one month from the date of receipt
of a certified copy of this Judgment. If the proceedings
initiated by the Commissioner culminates in an award, the
recovery shall also be made by the Commissioner and the
amount paid under the Victim Compensation Scheme shall be
Crl.Appeal Nos.315, 435, 680 & 806 of 2015
- 39 -
reimbursed to the fund constituted and the balance amount
paid to the victim's family.
The Registry shall forward a certified copy of this
judgment to the Industrial Tribunal, Kollam and the Member
Secretary, KELSA. Certified copies of the deposition of PW1
and PW2 shall also be transmitted to the Industrial Tribunal,
Kollam The Appeals are allowed with the above directions.
Ordered accordingly.
Sd/-
K.VINOD CHANDRAN,
JUDGE
Sd/-
ZIYAD RAHMAN A.A.,
JUDGE
dkr
