Kerala High Court
Sajid Balekhan Mujawar vs The State Of Kerala on 21 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA,
1945
CRL.A NO. 617 OF 2019
AGAINST THE ORDER/JUDGMENT IN CP 6/2014 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA
SC 137/2014 DATED 12.11.2018 OF ADDITIONAL DISTRICT
COURT, ALAPPUZHA.
APPELLANT/1ST ACCUSED:
AVINASH BHIKU SHINDE, S/O BHIKU SHINDE, 91,
MULANVADI, RAM NAGAR, KHANPUR, SULTHANGAD P.O.,
SANGLI DISTRICT, MAHARASHTRA (NOW IN CENTRAL
JAIL, POOJAPPURA AS C.NO.3122).
BY ADVS.
SANTHAN V.NAIR
SMT.MARGERET K. JAMES
RESPONDENT/DEFACTO COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.ALEX M THOMBRA,SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
21.09.2023, ALONG WITH CRL.A.685/2019, 798/2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl. Appeal No.617 of 2019 &
con. cases
-: 2 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA,
1945
CRL.A NO. 685 OF 2019
AGAINST THE JUDGMENT IN CP 6/2014 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I, ALAPPUZHA
SC 137/2014 DATED 12.11.2018 OF SPECIAL COURT UNDER POCSO
ACT, ALAPPUZHA
APPELLANT/3RD ACCUSED:
JYOTHIRAM SUBBARAO YADAV,S/O.SUBBARAO YADAV,
C.NO.3123, CENTRAL PRISON AND CORRECTIONAL HOME,
POOJAPPURA, THIRUVANANTHAPURAM AND RESIDED AT
DONDIVADI MHI P.O., KHANPUR, SANGLI DISTRICT,
MAHARASHTRA, NOW SAYIKRIPA VEEDU, CHATTANAD
WARD, ALAPPUZHA.
BY ADV D.AJITHKUMAR, STATE BRIEF
RESPONDENT/S:
1 STATE OF KERALA,REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,
2 THE INSPECTOR OF POLICE,ALAPPUZHA NORTH POLICE
STATION.
BY ADV.ALEX M THOMBRA, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
21.09.2023, ALONG WITH CRL.A.617/2019 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl. Appeal No.617 of 2019 &
con. cases
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA,
1945
CRL.A NO. 798 OF 2019
AGAINST THE JUDGMENT IN CP 6/2014 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I, ALAPPUZHA
SC 137/2014 DATED 12.11.2018 OF SPECIAL COURT UNDER POCSO
ACT, ALAPPUZHA
APPELLANT/ACCUSED NO.2:
SAJID BALEKHAN MUJAWAR,AGED 27 YEARS,S/O.
BALEKHAN MUJAWAR, VEKITESWARA NAGAR, KOHLAPUR
(P), SHIROLI, IN FRONT OF DOUD (T) VALI, MAHADIC
TEMPLE, SANGLI DISTRICT, MAHARASHTRA.
BY ADV SRI.M.P.MADHAVANKUTTY
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA,REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682
031
BY ADV.ALEX M THOMBRA, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
21.09.2023, ALONG WITH CRL.A.617/2019 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl. Appeal No.617 of 2019 &
con. cases
-: 4 :-
P.B.SURESH KUMAR & P.G.AJITHKUMAR, JJ.
-----------------------------------------------
Crl.Appeal Nos.617, 685 and 798 of 2019
-----------------------------------------------
Dated this the 21st day of September, 2023
JUDGMENT
P.B.Suresh Kumar, J.
The accused in S.C.No.137 of 2014 on the files of
the Additional Sessions Court-I, Alappuzha are the appellants in
these appeals. There were three accused in the said case and
among them, the first accused is the appellant in Criminal
Appeal No.617 of 2019, the second accused is the appellant in
Criminal Appeal No.798 of 2019 and the third accused is the
appellant in Criminal Appeal No.685 of 2019. Accused Nos. 1
and 2 stand convicted and sentenced for the offences
punishable under Sections 120B, 449, 302 and 394 read with
Section 34 of the Indian Penal Code (IPC) and accused No.3
stands convicted and sentenced for the offences punishable
under Sections 120B, 302 and 394 IPC.
2. The body of one Durgesh, a native of
Crl. Appeal No.617 of 2019 &
con. cases
Maharashtra who was engaged in the business of converting
22 carat gold ornaments into 24 carat pure gold in one of the
shop rooms in a commercial complex namely Sona Complex
situated at Mullackal in Alappuzha District was found lying on
the floor of his shop by one Fasal at about 10 p.m. on
05.11.2013. It is alleged that Fasal had gone to the shop of
Durgesh then to obtain the pure gold purchased by him from
Durgesh. The police officers and the friends and relatives of
Durgesh who had gone to the scene on receiving information
took Durgesh to the General Hospital, Alappuzha. It is alleged
that Durgesh was brought dead to the hospital.
3. A crime was registered by Alappuzha North
Police in connection with the death of Durgesh on the basis of
the information furnished by Fasal and after investigation, a
final report has been filed in the case against the accused
alleging commission of offences punishable under Sections
120B, 449, 302 and 394 read with Section 34 IPC. The
accusation in the case is that the third accused who was in
inimical terms with Durgesh on account of business rivalry and
jealousy hatched a criminal conspiracy in the house of the third
accused with the first and second accused to cause the death
Crl. Appeal No.617 of 2019 &
con. cases
of Durgesh and commit robbery of the gold and money
possessed by him; that in furtherance to the said criminal
conspiracy, the third accused had shown to the first and
second accused the shop of Durgesh, and on 05.11.2013,
between 9.45 p.m. and 10.45 p.m., the first and second
accused trespassed into the shop of Durgesh. It is alleged that
the first accused thereupon caught hold of the neck of Durgesh
from behind and when Durgesh inflicted a blow on the head of
the first accused using an iron rod so as to come out of the
hold of the first accused, the first accused pushed him down
backwards and as a result, the head of Durgesh hit against an
iron mould kept on the floor used for gold works, and Durgesh
suffered an injury on his head above the left ear. It is also
alleged that by the second accused caught hold of the legs of
Durgesh and the first accused then smothered and
strangulated him to death. It is also alleged that the first and
second accused thereupon committed robbery of gold items
weighing 747.800 grams and cash amounting Rs.5,60,460/-
kept by Durgesh in his shop and concealed the same in the
bag carried by the first accused.
4. On committal of the case for trial, the Court of
Crl. Appeal No.617 of 2019 &
con. cases
Session read over the charge framed against the accused. As
the accused denied the charges, the prosecution examined as
many as 26 witnesses as PW1 to PW26 and proved through
them Exts.P1 to P35 documents. MOs 1 to 45 are the material
objects in the case. Ext.D1 is a portion of the statement given
by PW9 under Section 161 of the Code. On culmination of the
evidence of the prosecution, the incriminating circumstances
brought out in evidence were put to the accused as provided
for under Section 313 of the Code of Criminal Procedure (the
Code). The accused denied the same and maintained that they
are innocent. In addition, the first accused filed a statement
taking the stand that he has nothing to do with the crime; that
he does not know the third accused; that he came to Kerala on
a tour along with the second accused and he was taken into
custody by the police on 5.11.2013 from Alappuzha town when
he went out of the place where he was staying to purchase
food. Similarly, the second accused filed a statement taking
the stand that he also has nothing to do with the crime; that he
came to Kerala on a tour along with the first accused; that as
the first accused, who went out of the place where they were
staying to purchase food at about 10 p.m. on 05.11.2013 did
Crl. Appeal No.617 of 2019 &
con. cases
not return, he went to Alappuzha North Police Station on the
following day on receiving information that the first accused is
detained there and that he was taken into custody by the
police then. According to him, he was falsely implicated in the
case as an accused. Likewise, the third accused filed a
statement taking the stand that he has no connection
whatsoever with the crime; that he does not know the first and
second accused; that the deceased was a best friend of him
and that he has helped him a lot in his business.
5. As the Court of Session did not find the case to
be one fit for acquittal under Section 232 of the Code, the
accused were called upon to enter on their defence. Two
witnesses have been examined thereupon by the accused on
their side as DWs 1 and 2. Exts.D2 and D3 are the documents
proved by the accused on their side. Thereupon, on an
appraisal of the materials on record, the Court of Session found
the first and second accused guilty of the offences punishable
under Sections 120B, 449, 302 and 394 read with Section 34
IPC and the third accused guilty of the offences punishable
under Sections 120B, 302 and 394 IPC. The first and second
accused were accordingly sentenced to undergo imprisonment
Crl. Appeal No.617 of 2019 &
con. cases
for life and to pay fine for Rs.2lakhs each for the offence
punishable under Section 302 IPC, to undergo rigorous
imprisonment for ten years and to pay fine for Rs.1 lakh each
for the offence punishable under Section 394 IPC and to
undergo rigorous imprisonment for a period of five years and
to pay a fine of Rs.50,000/- each for the offence punishable
under Section 449 IPC. Similarly, the third accused was
sentenced to undergo imprisonment for life and to pay a fine of
Rs.2 lakhs for the offence punishable under Section 302 read
with Section 120B IPC. He was also sentenced to undergo
rigorous imprisonment for a period of ten years and to pay a
fine of Rs.1 lakh for the offence punishable under Section 394
read with Section 120B IPC. Default sentences were also
imposed on the accused. The substantive sentences imposed
on the accused were ordered to run concurrently. The accused
are aggrieved by the said decision of the Court of Session and
hence, these appeals.
6. Heard the learned counsel for the accused as
also the learned Public Prosecutor.
7. We are not referring to the various
submissions made by the learned counsel for the accused at
Crl. Appeal No.617 of 2019 &
con. cases
this stage, as we find it appropriate to refer to and ascertain
the evidence let in by the prosecution before delving into the
arguments advanced by the learned counsel for the accused.
8. The witness examined by the prosecution as
PW1 is none other than Fasal who first found the body of
Durgesh on the floor of his shop. PW1 is the first informant
also. Ext.P1 is the First Information Statement. Ext.P1 was
given by PW1 at about 11.30 p.m. on 05.11.2013. PW1
deposed that he runs a jewellery shop; that he used to
purchase 24 carat gold from Durgesh; that on 05.11.2013 at
about 11 a.m., he went to the shop of Durgesh and placed an
order for supply of 24 carat gold for Rs.3,00,000/-; that though
he wanted the gold ordered by him on the same day itself,
Durgesh agreed to supply the same only on the following day;
that nevertheless at about 9.45 p.m. on the same day,
Durgesh informed him over phone that the gold ordered by
him is ready and that he can come and collect the same from
his shop. PW1 deposed that he went to the shop of Durgesh
accordingly at about 10 p.m. on that day; that when he
reached the shop of Durgesh, he found that though the shutter
of the shop appeared to be closed, but not locked and there
Crl. Appeal No.617 of 2019 &
con. cases
was light inside; that though he called out Durgesh many a
times by knocking on the shutter, there was no response and
therefore, he lifted the shutter slightly and peeped into the
shop. PW1 deposed that he then found the body of Durgesh
lying on the floor of the shop and the first and second accused
were standing beside the body. PW1 deposed that he also
noticed blood stains then on the bodies of the first and second
accused. It was deposed by PW1 that on being scared, he
closed the shutter of the shop room and called Kishore, a
friend of Durgesh and that Kishore reached the scene soon. It
was deposed by PW1 that as suggested by Kishore, he called
the police and by the time the police reached the scene,
Kishore had called some of his friends also to the scene. PW1
deposed that the police and the people assembled at the
scene thereupon lifted the shutter of the shop; that on lifting
the shutter, it was found that the deceased was lying on his
back with his head facing west and feet facing the east; that
the first and second accused were standing in the north-
western portion of the shop and that the first accused was
holding a black bag. PW1 deposed that Durgesh was taken to
the hospital thereupon in an ambulance and the first and
Crl. Appeal No.617 of 2019 &
con. cases
second accused were taken to the Police Station as directed by
the Circle Inspector of Police who arrived at the scene in the
meanwhile. PW1 identified in court the black bag carried by
the first accused as also the shirt and pants worn by him at
the relevant time as MO1, MO4 and MO3 respectively and the
shirt and pants worn by the second accused as MO5 and MO2
respectively. The evidence tendered by PW1 was consistent
with Ext.P1 statement given by him, and nothing was brought
out in his cross-examination to discredit his evidence.
9. PW2 is one Kishore, who was called to the
scene by PW1. PW2 is a goldsmith who hails from Maharashtra.
PW2 was also running a shop in Sona Complex. PW2 deposed
that PW1 had called him over phone at about 10 p.m. on
05.11.2013 and informed him that there is something wrong
inside the shop of Durgesh and required him to come over
there and that he went to the shop of Durgesh accordingly.
PW2 narrated the sequence of events that took place
thereafter on the same lines as deposed by PW1. In addition,
PW2 deposed that he noticed an injury on the face of the first
accused and that blood was oozing out from the said injury.
PW2 also deposed that he noticed a bleeding injury on the
Crl. Appeal No.617 of 2019 &
con. cases
head of Durgesh as well. PW2 deposed that both him and PW1
then went to the police station; that while returning from the
police station, he recalled that on the said day at about 11
a.m., he saw the first and second accused in the shop of the
third accused in Sona Complex and also at the house of one
Jayasree, where the third accused was residing, on the evening
of previous day and where he used to send his children for
tuition. PW2 also identified in court MOs 1 to 5. Even though a
doubt is cast as to the reliability of the evidence tendered by
PW2 that he saw the first and second accused at the shop of
the third accused in Sona Complex in the morning hours of
05.11.2013, and on the evening of previous day at the house
of Jayasree, inasmuch as the principle 'falsus in uno, falsus in
omnibus' does not have any application in our country, we are
of the view that the evidence tendered by PW2, insofar as it
corroborates the evidence tendered by PW1, can certainly be
accepted, as the said part of the evidence tendered by PW2
has not been discredited in any manner, whatsoever, in his
cross-examination.
10. PW3, Nazeer is a person who runs a jewellery
shop at Eramalloor. PW3 deposed that he is a social activist
Crl. Appeal No.617 of 2019 &
con. cases
also; that his jewellery is managed by his brother Noushad and
that he has a brother called Nassar also, who is running a
jewellery in the ground floor of Sona Complex. PW3 deposed
that at about 8.45 p.m. on 05.11.2013, he reached the shop of
his brother Nassar at Sona Complex; that while he was sitting
there, Noushad and his another brother, Nawab also reached
there, after closing the jewellery at Eramalloor; that Durgesh
used to supply to them 24 carat gold; that Noushad and
Nawab, after sometime, went to the shop of Durgesh for
purchasing 24 carat gold and that he went home at about 9.30
p.m. after Noushad and Nawab returned to the shop of Nassar.
PW3 deposed that while he was leaving the premises of Sona
Complex, he heard Durgesh shouting to the security guard of
Sona Complex not to close the shutter. PW3 deposed that at
that time, he saw the first and second accused proceeding to
the first floor of Sona Complex and when he enquired with the
security guard about them, he was informed by the secutiy
guard that they were proceeding to the shop of Durgesh. PW3
deposed that upon reaching home, he received a call from PW2
that some untoward incident happened in the shop of Durgesh
and that he came back on the basis of that information to Sona
Crl. Appeal No.617 of 2019 &
con. cases
Complex. It was deposed by PW3 that upon reaching the shop
of Durgesh, he witnessed a crowd in front of the shop including
police and noticed that PW1 and PW2 had kept the shutter of
the shop of Durgesh closed and that thereafter, all of them
lifted the shutter together. On lifting the shutter, it was
deposed by PW3 that he found the body of Durgesh lying on
the floor and that the first and second accused were standing
on either side of the body of Durgesh with an appearance of a
scuffle that had taken place. PW3 also deposed that he found
then a black bag with the first accused. PW3 also identified in
court MOs 1 to 5, the black bag carried by the first accused
and the dress worn by the first and second accused then. As in
the case of PW2, PW3 also corroborated the evidence tendered
by PW1 in full and the said part of the evidence has not been
discredited by the accused in their cross-examination. Of
course, as regards the position where the first and second
accused were standing in the shop of Durgesh when the
shutter of the shop was lifted, the evidence of PW1 and PW3
were not in harmony. Similarly, there was a trivial
inconsistency in their evidence as regards the position of the
black bag also. PW1 deposed that he found the accused
Crl. Appeal No.617 of 2019 &
con. cases
standing in the north-western side of the shop when the
shutter was lifted, whereas the version of PW3 was that the
first and second accused were standing on either side of the
body. Similarly, PW3 who deposed that he found MO1 bag with
the first accused, made a variation in his cross-examination as
regards the same and deposed that MO1 bag was kept on the
table. In all cases, there will be trivial inconsistencies in the
evidence of witnesses due to errors in observation, errors of
memory due to lapse of time or due to mental disposition, such
as shock and horror at the time of occurrence and the law on
the point is that minor inconsistencies which do not affect the
core of the prosecution case shall not be a ground on which the
evidence can be rejected in its entirety, if the evidence of the
witness is otherwise credible and inspires confidence [See A.
Shankar v. State of Karnataka, (2011) 6 SCC 279]. As we find
that the evidence tendered by PW3 is credible and inspires
confidence, we are of the view that the inconsistencies
aforesaid shall not deter us from placing reliance on the same.
11. PW8 is also a goldsmith who hails from
Maharashtra. He also runs a shop in Alappuzha. PW8 is one
among the persons who reached the shop of Durgesh on
Crl. Appeal No.617 of 2019 &
con. cases
hearing the untoward incident. PW8 deposed that he was also
present at the shop of Durgesh when its shutter was lifted.
PW8 also gave a narration in his evidence as to the events that
took place thereupon on similar lines as the evidence tendered
by PWs 1, 2 and 3. PW8 also identified in court the bag carried
by the first accused as also the dress worn by the first and
second accused. PW4 is the uncle of the wife of the third
accused. PW4 is also one among the persons who reached the
shop of Durgesh on hearing the untoward incident and by the
time he reached the shop, the shutter of the shop had already
been lifted. PW4 also in his evidence gave a narration of the
events that took place thereafter on lines similar to the
evidence tendered by PW1, 2, 3 and 8. In addition, PW4
deposed that between 12 and 12.30 a.m. on the following day,
he received a call from the third accused enquiring as to what
happened in the shop of Durgesh and the third accused did not
ask any further question when he narrated to him as to the
occurrence. As in the case of PWs 1 to 3 and 8, the testimony
aforesaid of the above witness was also not discredited in any
manner by the accused in their cross-examination.
12. PW26 was the security guard of Sona Complex
Crl. Appeal No.617 of 2019 &
con. cases
during the relevant time. PW26 deposed that at about 9.30
p.m. on 05.11.2013, when he went to the first floor of the
complex to close its shutter, he found Durgesh in his shop and
that when he was about to close the shutter, Durgesh called
out not to close the shutter as someone was coming to see
him. PW26 also deposed that when he was coming down to the
ground floor, he found the first and third accused going to the
first floor. The evidence tendered by PW26 as regards the
identity of the accused is not consistent with the prosecution
case inasmuch as, going by the prosecution case, the third
accused was not there at Sona Complex at 9.30 p.m. on
05.11.2013. It is however seen that the Public Prosecutor has
not cross-examined PW26 after obtaining permission from the
Court in the context of the said evidence. According to us, the
aforesaid circumstance is not an impediment for the court to
accept the credible part of the evidence of PW26.
13. PW9 who runs a stationary shop in Alappuzha
town deposed that on 05.11.2013, the first and second
accused came to his shop and purchased MO7 cellophane
tape. PW9 also deposed that MOs 2 to 5 were the clothes worn
by the first and second accused at that time. PW9 also
Crl. Appeal No.617 of 2019 &
con. cases
deposed that the first accused carried MO1 bag then and it
was in that bag he kept MO7 cellophane tape purchased from
him. Similarly, PW16 who was a salesman in a shop in
Alappuzha town deposed that on 05.11.2013 at about 6 p.m.,
the first and second accused came to the shop and purchased
MO6 series ropes. PW16 also deposed that MOs 2 to 5 were the
clothes worn by the first and second accused at that time.
PW16 also deposed that the first accused carried MO1 bag
then and it was in that bag he kept MO6 series ropes
purchased from him.
14. PW6 is Jayasree referred to by PW2 in his
evidence as the landlord of the third accused. PW6 deposed
that she had acquaintance with the third accused as she let
out her house to the third accused; that she resides very close
to the said house; that she saw the first and second accused
on the evening hours of 04.11.2013 and on the morning hours
of 05.11.2013 in the house let out to the third accused; that
her attention was drawn to them as her dog was barking
unusually on seeing them in the premises of the house of the
third accused and that the third accused introduced the first
and second accused to her as his friends who came from his
Crl. Appeal No.617 of 2019 &
con. cases
native place. PW13 is the wife of the deceased. PW13 deposed
that she knew the third accused as a friend of her husband and
that her husband had told her on various occasions that the
third accused was jealous of his business. PW13 also deposed
that as she was going to the house of the sister of her husband
at Mohama in connection with Deepavali celebration and as
there would be no one in the house on 05.11.2013, she went to
the shop of her husband that day afternoon by about 2pm and
entrusted her ornaments with him. PW13 identified those
ornaments in court as MOs 10 to 16.
15. PW22 is the doctor who conducted the autopsy
of the body of the deceased. Ext.P22 is the autopsy certificate.
According to PW22, Durgesh died due to smothering and
strangulation following head injury. It was deposed by PW22
that six ante-mortem injuries were noted on the body of the
deceased at the time of autopsy. The ante-mortem injuries
noted on the body of the deceased as deposed by PW22 are
the following:
"1. Lacerated wound right side back of head 2x0.2 cm
oblique upper inner end 6 cm right to midline 11 cm
above hair margin lower outer end 7 cm above mastoid
with internal scalp contusion underneath 6x3 cm.
Crl. Appeal No.617 of 2019 &
con. cases
2. Multiple contused areas on the inner aspect of both
lips enclosing a lacerated wound 0.5x0.2 cm tissue deep
midline on the lower lip 3 cm below lip border and
another on the inner aspect of upper jaw 0.4 cm below
the lip border.
3. Multiple contused abraded areas on the front aspect
of neck over an area 13x5 cm (left side) to 8 cm midline
front extending from 2 cm right to midline to a point 3
cm below left ear lobule; 4 cm above sternal notch.
Dissection of the neck was done in a bloodless field in
layer. Multiple areas of blood infiltration seen varying
from 0.5x0.3 to 1x1 cm seen on the both sides of neck
with blood infiltrate around upper cornue of hyoid bone
right side.
4. Contusion 3x1 cm, 2 cm below jaw border 4 cm left to
midline.
5. Skin slippage with pale area underneath on the outer
aspect of right arm and front of forearm 18x6 cm from a
point 3 cm above elbow.
6. Brain showed contusion 6x4 cm left tempero parietal
area with thin subarachnoid haemorrhage. Ventricles
contained blood stained fluid."
Even though PW22 deposed that Durgesh died due to
smothering and strangulation following head injury, PW22 also
stated in his evidence that injury Nos.1 and 6 referred to above
are sufficient in the ordinary course of nature to cause death
Crl. Appeal No.617 of 2019 &
con. cases
and that the said injuries are possible on account of a fall on
MO23 iron mould. PW22 also stated in his evidence that injury
No.2 shows smothering and application of force on the mouth
and injury No.3 shows application of force on the neck area. In
cross-examination, PW22 stated that injury No.1 could have
been caused on account of other reasons as well. Similarly,
PW22 stated that death cannot be caused by merely closing
the mouth of a person and no injuries were found on the nose
of the deceased. In that context, it was, however, clarified by
PW22 that the victim must have lost consciousness on account
of the head injury, and smothering and strangulation, in the
circumstances, would have been possible without much force.
Even though PW22 deposed that nail marks were not found on
the neck of the deceased, it was also clarified by him that only
if there is violent resistance, nail marks would appear.
16. PW14 who was the Assistant Surgeon attached
to the General Hospital, Alappuzha deposed that on
06.11.2013 at about 3 am, he examined the first accused and
sutured a lacerated wound found over the front parietal region
of his scalp. PW14 deposed that the sutured wound was
possible to be inflicted with MO22 iron rod.
Crl. Appeal No.617 of 2019 &
con. cases
17. PW11 is the Scientific Officer attached to the
District Crime Records Bureau, Kochi who inspected the scene
of occurrence on 06.11.2013 and collected samples of blood
stains from the walls of the cupboards and from the surface of
the iron mould kept on the floor and also from the floor of the
shop room. Ext.P13 is the report submitted by PW11 in this
regard. PW11 identified in court the iron rod and the iron mould
found at the scene as MO22 and MO23 respectively. PW12 is
the Finger Print Expert who lifted chance finger prints from the
scene of occurrence on 06.11.2013 and compared the same
with the specimen finger prints of the accused. PW12 deposed
that one of the chance finger prints lifted by him from the shop
of Durgesh was identified as the left thumb impression of the
first accused. Even though Ext.P14 communication issued by
PW12 in this regard to the investigating officer is hit by Section
162 of the Code of Criminal Procedure, the evidence tendered
by PW12 in this regard has not been discredited in any manner.
18. PW18 was an Assistant Sub Inspector of Police
attached to the Alappuzha Police Control Room. PW18 deposed
that on receiving information over phone as regards the
occurrence, after informing the concerned police station, he
Crl. Appeal No.617 of 2019 &
con. cases
went to the scene with the police party, and by the time he
reached the shop of Durgesh, there were a few people near the
shop and that he along with others lifted the shutter of the
shop. PW18 also gave a narration of the events that took place
thereafter on lines with the evidence tendered by PWs 1 to 4
and 8. PW18 not only identified in court the first and second
accused but also the clothes worn by them at the relevant
time. PW24 was the police constable attached to Alappuzha
District Police Headquarters and was part of the special
investigation team constituted for the investigation of the
subject crime. PW24 deposed that he is conversant with Hindi
and it is he who translated the statements given by the
accused and the witnesses to the investigating officer.
19. PW25 is the police officer who conducted the
investigation in the case and laid the final report. PW25
deposed that he went to the scene on receiving information
about the crime and by the time he reached the scene, the
body of Durgesh was already taken to an ambulance and the
first and second accused were taken into custody by the police.
PW25 deposed that the first accused was carrying a black bag
at that time and as the help of a translator was required to
Crl. Appeal No.617 of 2019 &
con. cases
interrogate them, they were kept under surveillance at
Alappuzha North Police Station. PW25 deposed that he took
over the investigation of the crime thereupon and prepared
Ext.P5 scene mahazar and seized MO22 iron rod and MO23 iron
mould. PW25 also deposed that he discovered and seized MOs
10 to 16 gold ornaments, MOs 17 to 20 gold ingots, MO21
series gold coins, currency notes amounting to Rs.5,60,460/-,
MO7 cellophane tape and MO6 plastic rope which were
concealed by the first accused in the bag carried by him based
on the information furnished by him as per Ext.P9 mahazar. It
was deposed that as per Ext.P9, MO1 bag in which the objects
aforesaid were kept was also seized. Ext.P9(a) is the disclosure
statement stated to have been made by the first accused in
this regard. PW25 also deposed that he also seized on
07.11.2013 MOs 2 to 5 clothes worn by the first and second
accused in terms of a mahazar prepared.
20. Having thus understood the nature and
substance of the evidence let in by the prosecution, let us now
refer to the arguments advanced by the learned counsel for
the accused. As noted, there is no direct evidence in the case,
and the prosecution has attempted to prove its case through
Crl. Appeal No.617 of 2019 &
con. cases
various circumstances. The main circumstance relied on by the
prosecution to prove the guilt of the accused is the
circumstance that the first and second accused were found
with the body of the deceased when the body was first found
by PW1. The first and foremost submission made by the
learned counsel for the first accused was that the evidence
tendered by PWs 1, 3 and 26 in this regard is not consistent,
and the benefit of doubt created on account of the same shall
be extended to the accused. It was argued by the learned
counsel that the prosecution has miserably failed in
establishing that a criminal conspiracy was hatched by the
third accused with the first and second accused to cause the
death of Durgesh. It was also argued by the learned counsel
that in the absence of any evidence on the side of the
prosecution to prove the criminal conspiracy alleged, it was
obligatory on the part of the prosecution to prove the motive of
the first accused to commit the murder of the deceased.
According to the learned counsel, in the absence of any
evidence to establish the motive on the part of the first
accused, the impugned judgment convicting the first accused
is unsustainable in law.
Crl. Appeal No.617 of 2019 &
con. cases
21. It was argued by the learned counsel for the
second accused, placing reliance on various authorities dealing
with the principles to be followed for establishing the guilt of
the accused in a case on circumstantial evidence, that the
circumstances established in the case do not prove the guilt of
the second accused beyond reasonable doubt. The learned
counsel relied on a few circumstances to contend that the
same would cast a serious doubt as to the genuineness of the
case proposed to be proved by the prosecution and the benefit
of the said doubt shall certainly be extended to the accused.
The circumstances relied on by the learned counsel are the
following:
1. Even though the thumb impression of the first accused
was found in the shop of the deceased, the thumb impression
of the second accused was not found there.
2. In a case of this nature, it was obligatory for the
investigating agency to collect and examine the call details of
the deceased and the accused in order to ensure the
correctness of the allegations levelled against the accused.
3. Even though it is alleged that the accused were taken
into custody from the shop of Durgesh on the night of
05.11.2013 itself, their arrests were recorded only at 4:00 pm
on the following day and there is no explanation for the said
delay.
Crl. Appeal No.617 of 2019 &
con. cases
4. Inasmuch as the witnesses who have identified the first
and second accused in court are persons who had no previous
acquaintance with them, a test identification parade should
have been conducted.
5. The brothers of PW3 being persons who have last
visited Durgesh in his shop should have certainly been
examined as witnesses in the case.
6. Had this been a case as alleged by the prosecution,
there would have been serious injuries on the body of the
deceased, the accused would have attempted to escape from
the scene, there would have been some noise from the shop
of the deceased at the time of the alleged occurrence, there
would have been evidence of some damage to the articles
kept there and the assailants would not have carried in their
bag the entire gold and cash kept by Durgesh including ten
rupee note, for it is not possible to collect the entire valuables
from the shop in a situation of that nature.
It was also argued by the learned counsel that there is no
satisfactory evidence to show that the discovery and seizure of
the gold, the gold ornaments and cash stated to have been
held by Durgesh was based on the information furnished by
the first accused and if that be so, no presumption can be
made in terms of Section 114 of the Indian Evidence Act
against the first accused. It was also argued by the learned
counsel that there is no evidence to show that the murder and
Crl. Appeal No.617 of 2019 &
con. cases
robbery took place simultaneously and as such, even if it is
found that the stolen articles have been discovered and seized
from the first accused, the accused cannot be convicted for
murder. The learned counsel relied on the decision of the Apex
Court in Limbaji v. State of Maharashtra, (2001) 10 SCC 340, in
support of the said contention. The last submission made by
the learned counsel was that even assuming that the
prosecution has established that the first and second accused
caused the death of Durgesh and robbed him, the materials on
record do not indicate that the culpable homicide committed
by them would amount to murder punishable under Section
302 IPC. In order to substantiate the said contention, the
learned counsel argued, placing reliance on a few passages
from the books "Principles and Practice of Forensic Medicine"
by Dr.Umadathan and "MODI's Medical Jurisprudence and
Toxicology" that the prosecution has not established beyond
reasonable doubt that the cause of death of Durgesh was due
to smothering and strangulation or that the death was due to
the head injury. According to the learned counsel, having
regard to the totality of the facts and circumstances, it could
be seen that the death of Durgesh occurred as a result of an
Crl. Appeal No.617 of 2019 &
con. cases
accident and if not, due to some act which was not intended to
cause his death. It was also argued by the learned counsel that
in the absence of any evidence to show that the first and
second accused intended to cause bodily injury to the
deceased which is sufficient in the ordinary course of nature to
cause his death, the accused can be convicted, even if the
entire prosecution case is accepted, only for the offence
punishable under Section 304 IPC.
22. It was argued by the learned counsel for the
third accused that the only evidence let in by the prosecution
to prove the criminal conspiracy is the evidence tendered by
PW2, PW6 as also PW13. According to the learned counsel, the
said evidence, even if accepted in toto, is not sufficient to
prove the criminal conspiracy alleged against the third
accused.
23. Having regard to the facts and circumstances
of the case, the points that arise for consideration are (1)
whether the prosecution has established that the death of
Durgesh is a homicide, (2) whether the prosecution has
established that the accused hatched a criminal conspiracy to
cause the death of Durgesh and to commit robbery of the gold
Crl. Appeal No.617 of 2019 &
con. cases
and money possessed by him, (3) whether the prosecution has
established that the first and second accused have caused the
death of Durgesh and committed robbery of gold and money
and (4) the relief, if any, the accused are entitled to.
24. Point (1): It was argued by the learned counsel
for the second accused that what is expected from PW22, who
conducted the autopsy, in a case of this nature was to give an
opinion as to the cause of death, whereas PW22 has given
multiple opinions as to the cause of death inasmuch as it is not
clear from his evidence as to whether the death occurred on
account of the head injury suffered by the victim or on account
of smothering and strangulation. It was also argued by the
learned counsel that had this been a case of strangulation,
contusions and nail marks would have appeared on the neck. It
was also argued by the learned counsel that since suffocation
is brought about by occlusion of the mouth and nostrils either
by hands or by other materials, there will be injuries on the
body indicative of struggle. The point that was attempted to be
established by the learned counsel by making the aforesaid
submissions was that the death of the victim was not due to
smothering and strangulation.
Crl. Appeal No.617 of 2019 &
con. cases
25. True, what was opined by PW22 was that the
death of Durgesh was due to smothering and strangulation
following head injury. Merely for the reason that PW22 has
stated that death must have occurred due to smothering and
strangulation following head injury, it cannot be said that the
opinion as regards the death was not due to smothering and
strangulation, especially since it was explained by PW22 in his
evidence that injury No.2 shows smothering and application of
force on the mouth and injury No.3 shows application of force
on the neck area. Even though PW22 stated in cross-
examination that the death cannot be caused merely by
closing the mouth of a person and no injuries were found on
the nose of the deceased, he clarified that the victim must
have lost consciousness on account of the head injury, and
smothering and strangulation, in the circumstances, would
have been possible without much force. Similarly, though it
was stated by PW22 that nail marks were not found on the
neck of the deceased, it was clarified by him that only if there
is violent resistance, nail marks would appear. On a careful
appraisal of the evidence on record, we are unable to accept
the arguments advanced by the learned counsel for the second
Crl. Appeal No.617 of 2019 &
con. cases
accused that the death of the victim was not due to
smothering and strangulation. It is all the more so since it was
deposed by PW22 that both lungs of the victim were severely
congested and oedematous, which are indications of death due
to strangulation [See MODI, Medical Jurisprudence and
Toxicology (25th edition page 506)]. We, therefore, hold that
the death of the victim was a homicide and the cause of the
death was smothering and strangulation.
26. Points (2) and (3): As seen from the
evidence let in by the prosecution, the only evidence adduced
by the prosecution to prove the case of criminal conspiracy is
the evidence let in by PW2 Kishore who runs a shop in Sona
Complex, PW6 Jayasree in whose house the third accused was
residing on rent and PW13 Nitha, the wife of Durgesh. The
evidence tendered by PW13 in this regard is only that she
knew the third accused as a friend of her husband and that her
husband had told her on various occasions that the third
accused was jealous of his business. The evidence tendered by
PW2 in this regard is that while returning from the police
station, he recalled that on the date of occurrence, at about 11
a.m., he saw the first and second accused in the shop of the
Crl. Appeal No.617 of 2019 &
con. cases
third accused in Sona Complex, and also at the house of one
Jayasree where the third accused is residing, on the previous
day evening where he used to send his children for tuition. If
PW2 had seen the first and second accused on 05.11.2013 and
on the previous day in the company of the third accused either
in his shop or at the place where he used to reside, there is no
reason why, in a case of this nature, he should not have
revealed the said fact to PW1 or to the police while he was
very much present at the police station with PW1 for giving the
First Information Statement, after he had seen them with the
body of Durgesh in the shop. The said circumstances would
certainly create a doubt as to the correctness of that part of
the evidence tendered by PW2. We are, therefore, of the view
that it is not safe to place reliance on the said evidence of PW2
for the purpose of considering the point aforesaid, as the
offence involved is one punishable with death, and the
principle is that "fouler the crime, higher the proof." If the
evidence tendered by PW2 and PW13 in the above regard is
eschewed, what remains is the evidence tendered by PW6, the
landlord of the third accused. As noted, PW6 deposed that she
had acquaintance with the third accused as she let out her
Crl. Appeal No.617 of 2019 &
con. cases
house to the third accused; that she resides very close to the
said house; that she saw the first and second accused on the
evening hours of 04.11.2013 and on the morning hours of
05.11.2013 in the house let out to the third accused; that her
attention was drawn to them as her dog was barking unusually
on seeing them in the premises and that the third accused
introduced the first and second accused to her as his friends
who came from his native place. We have carefully perused the
evidence tendered by PW6, and her evidence appeared to us
to be real and natural, and we do not find any reason to
disbelieve PW6, especially when nothing was brought out in
her cross-examination to show that her testimony is not
reliable or trustworthy. But the larger question is whether the
said evidence alone is sufficient for the prosecution to
establish criminal conspiracy in a case of this nature.
27. The elements of a criminal conspiracy have
been stated to be (a) an object to be accomplished, (b) a plan
or scheme embodying means to accomplish the object, ( c) an
agreement or understanding between two or more of the
accused persons whereby, they become definitely committed
to cooperate for the accomplishment of the object by the
Crl. Appeal No.617 of 2019 &
con. cases
means embodied in the agreement, or by any effectual means,
and (d) in the jurisdiction where the statute required an overt
act [See K. Hashim v. State of T.N., (2005) 1 SCC 237]. No
doubt, a conspiracy is hatched in secrecy and it is difficult to
adduce direct evidence for the same. Usually both the
existence of the conspiracy and its objects have to be inferred
from the circumstances and the conduct of the accused.
According to us, from the evidence tendered by PW6 alone, all
the necessary elements constituting criminal conspiracy in the
nature of one attributed against the accused cannot be
inferred. The motive attributed to the third accused for the
criminal conspiracy is his business rivalry with the deceased
and the jealousy he had towards the deceased. It has come out
that there was no business rivalry at all between the deceased
and the third accused as both of them were conducting
businesses of different lines. Several witnesses have spoken
about this fact. If that be so, it is difficult to believe that a
person in the background of the third accused, would hatch a
criminal conspiracy to cause the death of another merely on
account of jealousy. Be that as it may, the first and second
accused belong to the same State from where the third
Crl. Appeal No.617 of 2019 &
con. cases
accused also hails from. As such, merely for the reason that
the first and second accused visited the third accused when
they came to Kerala, it cannot be said that they had a common
object to be accomplished and a plan embodying the means to
accomplish the object. The possibility of the first and second
accused visiting the third accused without disclosing their idea
to cause the death of Durgesh, the possibility of the first and
second accused visiting the third accused for collecting
information for execution of their plan to cause the death of
Durgesh etc. cannot be ruled out. We have come to this
conclusion also for the reason that it has come out from the
evidence of PW6 that the third accused has introduced the first
and second accused to PW6 as his friends. If as a matter of
fact, the first and second accused are persons who were
brought by the third accused to cause the death of Durgesh
and to rob him, the conduct on the part of the third accused in
introducing the first and second accused to PW6 is not one
expected from a person placed in the position of the third
accused in the ordinary course of human nature. In the
circumstances, in the absence of any other material to infer an
agreement or understanding between the third accused on one
Crl. Appeal No.617 of 2019 &
con. cases
side and the first and second accused on the other side to
cause the death of Durgesh or to rob him, we are of the view
that the case of criminal conspiracy set out by the prosecution
against the accused cannot be accepted. If that be so, the
conviction of the third accused is unsustainable.
28. Let us now deal with the question whether the
prosecution has established that the first and second accused
have caused the death of Durgesh and committed robbery of
gold and money held by him. As noted, there is no witness to
the said occurrence, and the attempt on the part of the
prosecution is to prove the occurrence through various
circumstances. It is settled that in a case on circumstantial
evidence, the circumstances from which the conclusion of guilt
is drawn must be fully established; that the circumstances
should be of a conclusive nature and tendency; that the facts
so established must be consistent only with the hypothesis of
the guilt of the accused, that is to say, there should not exist
any other hypothesis except the guilt of the accused; that the
circumstances must exclude every possible hypothesis except
the one to be proved and that there must be a chain of
evidence so complete as to not leave any reasonable ground
Crl. Appeal No.617 of 2019 &
con. cases
for the conclusion consistent with the innocence of the accused
and must show in all human probability, that it is the accused
who must have done the act. Keeping in mind the aforesaid
principles, let us now appreciate the evidence. As noted, the
evidence tendered by PW9 and PW13 would show that the first
and second accused purchased MO7 cellophane tape and MO6
plastic rope from their respective shops. It is seen that the said
witnesses have been examined by the prosecution to prove
that the first and second accused have therefore made some
preparations for committing the crime. Although there is no
evidence to show that MO7 cellophane tape and MO6 plastic
rope have been used by the first and second accused for
commission of the crime, it is established through the evidence
of the said witnesses that MO1 bag was carried by the first
accused when he went to the shops of the said witnesses to
purchase the articles referred to above. In other words, the fact
that MO1 bag is one that belongs to the first accused stands
proved from the evidence tendered by the said witnesses.
29. As already found, PW1 Fasal, PW2 Kishore,
PW3 Nazeer, PW4 Sandeep Sankar, PW8 Barath Yadav and
PW18, the Sub Inspector of Police have testified in harmony
Crl. Appeal No.617 of 2019 &
con. cases
that when the police and the people assembled at the shop of
Durgesh on hearing the untoward incident lifted the shutter of
the shop, they found the first and second accused inside the
shop beside the body of Durgesh. Among them, PW1 and PW18
also testified that the first accused was carrying MO1 bag.
Similarly, PW2 testified in addition that they noticed a
bleeding injury on the face of the first accused, which was
corroborated by PW14, the doctor who sutured the wound on
the face of the first accused. Likewise, PW3 testified in addition
that the first and second accused were standing in the shop
with the appearance of a scuffle that had taken place. Almost
all the said witnesses have also testified that blood was found
on the bodies of the first and second accused at the relevant
time. Consistently, most of the said witnesses identified in
court the clothes worn by the first and second accused also at
the time when they were found at the shop of Durgesh.
Ext.P18 report of the Forensic Science Laboratory establishes
the fact that the blood stains found on the clothes worn by the
first and second accused were of human origin. The said fact is
not disputed by the first and the second accused, as the
contention advanced by them in this regard was only that the
Crl. Appeal No.617 of 2019 &
con. cases
same by itself does not prove their guilt. Inasmuch as it is
already found that the death of Durgesh was caused by
smothering and strangulation, it is established that the
accused are the persons who are first found with the dead
body of the deceased.
30. The evidence of PW25 would show that based
on Ext.P9(a) information furnished by the first accused, he
discovered and seized MOs 10 to 16 gold ornaments, MO7
cellophane tape and MO6 plastic rope which were concealed by
the first accused in MO1 bag carried by him. Even though the
first accused has taken the stand that MO1 bag does not
belong to him, in the light of the evidence tendered by PW9
and PW13, we do not find any merit in the said stand taken by
the first accused. That apart, PW13 has identified MOs 10 to
16 seized from the first accused as the gold ornaments
entrusted by her to Durgesh on the afternoon of the date of
the occurrence. The main contention raised by the learned
counsel for the first and second accused as regards the alleged
discovery and seizure of gold and cash including MOs 10 to 16
ornaments is that insofar as it was known to the police at the
time when the first and second accused were taken into
Crl. Appeal No.617 of 2019 &
con. cases
custody itself that the gold and cash held by Durgesh would be
available with the first and second accused, the discovery and
consequent seizure of the same would not fall under Section
27 of the Indian Evidence Act. He relied on the decisions
Shinoj and Others v. State of Kerala, 2019 KHC 862 and
Navaneethakrishnan v. State, (2018) 16 SCC 161, in support of
the said contention. The gist of the decisions aforesaid is that a
fact which was known to the police even prior to the
information furnished by the accused in custody, if
rediscovered on the basis of the information given by the
accused, will not fall within Section 27 and there has to be a
connecting link between the crime and the fact discovered. In
the instant case, the fact stated to have been discovered is the
fact that the first accused knew the place where MOs 10 to 16
ornaments belonging to PW13, which were entrusted to
Durgesh by PW13 were kept, and that he took out and handed
over those ornaments to the police from the place where he
concealed the same. The accused have no case, therefore, that
there is no connecting link between the crime and the fact
discovered. The question that arises therefore is whether it
could be said that PW25 knew that the gold and cash held by
Crl. Appeal No.617 of 2019 &
con. cases
Durgesh would be very much with the first accused, in the bag
carried by him. Inasmuch as the first and second accused were
found beside the body of Durgesh when the body was first
found and since they were taken into custody then and there,
as rightly contended by the learned counsel for the accused, it
was possible for the police to infer that had there been a theft
from the shop of Durgesh, the stolen articles would be
available with the first and second accused. It is settled that in
order to safeguard the interests of both sides in a criminal
prosecution, the court must consider the quality of evidence
adduced by the prosecution to establish the discovery of a fact
based on the information received from a person accused of an
offence before acting upon the same. If the evidence let in by
the prosecution is appreciated in the above perspective, it is
difficult to accept the case put forward by the prosecution that
the discovery of the facts aforesaid is based on Ext.P9(a)
statement, as it is only common sense that had there been a
theft from the shop of Durgesh, the stolen articles would be
available with the first and second accused. Section 27 of the
Indian Evidence Act, according to us, is not intended to take
care of such situations. Be that as it may, the said finding,
Crl. Appeal No.617 of 2019 &
con. cases
according to us, does not improve the case of the prosecution
in any manner. Even if Ext.P9(a) is inadmissible in evidence,
the conduct of the first accused in taking out from MO1 bag
belonging to him, the ornaments which are proved to be that
of the deceased, would be admissible under Section 8 of the
Evidence Act, as, in terms of the said provision, the conduct of
the accused is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact.
31. The finding aforesaid takes us to the crucial
question namely, whether it could be found on the said
evidence that it is the first and second accused who caused
the death of Durgesh. A presumption of fact is a type of
circumstantial evidence which, in the absence of direct
evidence, becomes a valuable tool in the hands of the court to
reach the truth without unduly diluting the presumption in
favour of the innocence of the accused which is the foundation
of the criminal law. Section 114 of the Indian Evidence Act
which enables the court to presume existence of certain facts
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
Crl. Appeal No.617 of 2019 &
con. cases
public and private business, in their relation to the facts of the
particular case." Illustration (a) to S.114 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 he has received
the goods knowing them to be stolen, unless he can account
for his possession. The Indian Evidence Act defines the
expression "may presume" thus:
"Whenever it is provided by this Act that the Court may
presume a fact, it may either regard such fact as proved,
unless and until it is disproved, or may call for proof of it."
Inasmuch as the expression "may presume" is used in Section
114, the Court may either regard the fact as proved, unless
and until it is disproved, or call for proof of it. It has come out
that large quantity of gold and cash were seized from the first
and second accused. The said gold and cash seized from the
first and second accused includes MOs 10 to 16 ornaments
which belonged to the deceased and his wife. The accused
have no satisfactory explanation to account for possession of
the gold and cash seized from them. In other words, according
to us, the presumption under Illustration (a) to Section 114 can
be safely drawn. The question then is, applying the said
Crl. Appeal No.617 of 2019 &
con. cases
provision, whether the presumption should be that the accused
stole the goods or later received them knowing them to be
stolen. On an overall consideration of the facts and
circumstances established, it is reasonable to presume that the
accused committed theft of the gold and cash held by Durgesh
in his shop.
32. The finding aforesaid takes us to the question
whether having regard to the facts of the case on hand, the
presumption should be extended to the perpetration of the
offence of robbery or murder or both. Prima facie, such
presumption does not come within the sweep of Illustration (a)
of Section 114. However, the law on the point is that with the
aid of the presumption under Section 114 of the Evidence Act,
the charge of murder cannot be brought home, unless there is
some evidence to show that the robbery and murder occurred
at the same time, i.e., in the course of the same transaction. It
was so held by the Apex Court in Limbaji and the various other
decisions following the same. In other words, if there is
evidence to show that the robbery and murder took place in
the course of the same transaction, the accused in a case of
this nature, could be convicted for robbery and murder as well
Crl. Appeal No.617 of 2019 &
con. cases
with the aid of the presumption under Section 114 of the
Indian Evidence Act.
33. Reverting to the facts, as noted, it has come
out from the evidence of PW26 that at about 9.30 p.m. on
05.11.2013, when PW26 went to the first floor of Sona
Complex to close one of the shutters in the first floor of the
said Complex, he found Durgesh in his shop and when he was
about to close the shutter, Durgesh called out to him that
someone is coming to see him and not to close the shutter. It
was almost at or about the same time that Durgesh had
informed PW1 over phone that the gold ordered by PW1 is
ready and that he can come and collect the same from his
shop. It is seen from the materials that it was almost around
the same time that PW3 heard Durgesh calling out PW26 and
telling him not to close the shutter and he had seen the first
and second accused proceeding to the first floor of Sona
Complex, while he was leaving its premises, after his brothers
Noushad and Nawab who went to visit Durgesh in his shop, had
come back. In other words, through the evidence of PW1, PW3
and PW26, it was established by the prosecution that Durgesh
was very much alive till the first and second accused went to
Crl. Appeal No.617 of 2019 &
con. cases
the shop of Durgesh at Sona Complex by about 9.30 p.m. on
the date of occurrence. Inasmuch as it is proved that the cause
of death of Durgesh is smothering and strangulation, it can
certainly be inferred that the death occurred within a few
minutes thereafter. In other words, from the available
materials, it can certainly be inferred that the first and second
accused are the persons who went to the shop of Durgesh
immediately preceding his death and who were found with the
dead body. Section 106 of the Indian Evidence Act provides
that when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. In the
context of criminal trials, the Apex Court has observed thus in
Shambu Nath Mehra v. State of Ajmer, 1956 SCR 199 that
Section 106 of the Indian Evidence Act is designed to meet
certain exceptional cases in which it would be impossible for
the prosecution to establish certain facts which are particularly
within the knowledge of the accused. The relevant observation
reads thus:
"This lays down the general rule that in a criminal case the
burden of proof is on the prosecution and Section 106 is
certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases in
Crl. Appeal No.617 of 2019 &
con. cases
which it would be impossible, or at any rate disproportionately
difficult, for the prosecution to establish facts which are
"especially" within the knowledge of the accused and which he
could prove without difficulty or inconvenience.
The word "especially" stresses that. It means facts that are
pre-eminently or exceptionally within his knowledge."
Placing reliance on the said judgment, in State of W.B. v. Mir
Mohammad Omar, (2000) 8 SCC 382, the Apex Court held that
Section 106 would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable inference
can be drawn regarding the existence of certain other facts,
unless the accused, by virtue of the special knowledge
regarding such facts, offers any explanation which might drive
the court to draw a different inference. In short, if a person is
found seen with the deceased immediately before his death,
he must offer an explanation as to how and when he parted
the company. He must furnish an explanation which appears to
the court to be probable and satisfactory. If he does so, he
must be held to have discharged his burden. If he fails to offer
an explanation on the basis of the facts within his knowledge,
he fails to discharge the burden cast upon him by Section 106
of the Indian Evidence Act. In short, in a case resting on
Crl. Appeal No.617 of 2019 &
con. cases
circumstantial evidence, if the accused fails to offer a
reasonable explanation in discharge of the burden placed on
him, that itself provides an additional link in the chain of
circumstances proved against him [See State of Rajasthan v.
Kashi Ram, (2006) 12 SCC 254]. As noted, no explanation is
forthcoming from the first and second accused as to how the
death occurred. In the light of the discussion aforesaid, we are
in agreement with the finding rendered by the Court of Session
that the first and second accused have caused the death of
Durgesh and committed robbery of the gold and money held
by him.
34. Let us now deal with the arguments advanced
by the learned counsel for the first and second accused which
have not been dealt with by us hitherto in this judgment. The
argument advanced by the learned counsel for the first
accused remaining to be considered is that the prosecution has
not established the motive of the accused to commit the
crime. We do not find any merit at all in this argument, as we
find that the prosecution has established beyond reasonable
doubt that it is the first and second accused who caused the
death of Durgesh. We have considered the various
Crl. Appeal No.617 of 2019 &
con. cases
circumstances pointed out by the learned counsel for the
second accused as referred to in paragraph 21 and we are of
the view that the same are not sufficient to hold that the chain
of evidence adduced by the prosecution is not complete or that
the same would leave any reasonable ground for the
conclusion consistent with the innocence of the first and
second accused. In the light of convincing evidence let in by
PW22, the doctor who conducted the autopsy, that the cause
of death of the victim was due to smothering and
strangulation, there is absolutely no scope for any argument
also that the alleged acts of the first and second accused
would not amount to the offence punishable under Section 302
I.P.C, for, if death is caused by smothering and strangulation,
the intention to cause the death can readily be inferred and
the case would then fall under Clause (1) of Section 300.
35. In the light of the discussion aforesaid, Criminal
Appeal Nos.617 of 2019 and 798 of 2019 are dismissed and
Criminal Appeal No.685 of 2019 is allowed, setting aside the
conviction of the third accused and the sentence passed
against him. The third accused shall be released forthwith, if
his continued detention is not required in connection with any
Crl. Appeal No.617 of 2019 &
con. cases
other case.
The registry is directed to communicate the above
order forthwith to the concerned prison, where the appellant in
Criminal Appeal No.685 of 2019 is undergoing incarceration.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
P.G.AJITHKUMAR, JUDGE.
Mn
