Kerala High Court
Baliram Uraon @ Billaym vs State Of Kerala on 3 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl.Appeal. 581/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.A NO. 581 OF 2020
CRIME NO.980/2017 OF MALA POLICE STATION, THRISSUR
AGAINST THE JUDGMENT DATED 05.03.2019 IN SC NO.261 OF
2018 OF ADDITIONAL SESSIONS COURT, IRINJALAKUDA (CP NO.97/17
OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY)
APPELLANT/ACCUSED No.1:
BALIRAM URAON @ BILLAYM
AGED 39 YEARS, S/O. GOPAL URAON, KALACHINI P.O,
BHATPARA TEA GARDENER LOWER LINE, ERPURBANGSHA
AREA, A TANK LINE AND GUDAM LINE, ALIPURDUAR
DISTRICT, WEST BENGAL 735 217
BY ADV T.U.SUJITH KUMAR
RESPONDENTS/COMPLAINANTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
2 THE INSPECTOR OF POLICE,
MALA POLICE STATION, THRISSUR 680 732
SRI. E.C. BINEESH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.09.2024, THE COURT ON 03.10.2024, DELIVERED THE FOLLOWING:
Crl.Appeal. 581/2020
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P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
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Crl.Appeal No.581 of 2020
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Dated : 3rd October, 2024
JUDGMENT
C.Pratheep Kumar, J.
The 1st accused in Sessions Case No.261/2018 on the file of the
Additional Sessions Judge, Irinjalakuda, who stands convicted under Section
302 of IPC is the appellant herein. Though the accused persons 2 to 5 were
charged for harbouring the 1st accused, they were acquitted by the trial court.
2. The deceased Minarul Islam and the accused persons are migrant
workers. Earlier, all of them were working at PPK Tiles Company at
Ambazhakad. While so, the wife of the 1st accused Heera eloped with PW23,
one of the brothers of the deceased. Thereafter, the 1 st accused became hostile
to the deceased as well as his other brothers including the deceased, PWs 22
and 23. After the above incident, he also lost his job in PPK Tiles Company.
Due to that enmity, on 7.8.2017 at about 10.40 p.m., while the deceased was
returning after his job and when he reached near Thumbumuri canal, the 1 st
accused attacked him with a stone, inflicting serious injuries on various parts
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of his body including head and chest and as a result of which he succumbed to
the injuries.
3. The evidence in the case consists of oral testimonies of PWs 1 to
25 and Exts.P1 to P38 on the side of the prosecution. MOs1 to 19 were also
identified. No oral evidence was adduced by the 1 st accused. However,
portions of 161 Cr.P.C statement were marked as Exts.D1 to D4. After
appreciating the available evidence, the trial court found the 1st accused guilty
of the offence under Section 302 IPC and acquitted the accused persons 2 to 4.
Dissatisfied with the above judgment of conviction and sentence, the 1 st
accused preferred this appeal raising various contentions.
4. Now the points that arise for consideration are the following :-
(i) Whether the prosecution has succeeded in proving that the
1st accused has committed murder of deceased Jaharul Islam
on 7.8.2017 at about 10.40 p.m. as alleged ?
(ii) Whether the impugned judgment of conviction and
sentence passed by the trial court calls for any interference, in
the light of the grounds raised in the appeal ?
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5. Heard both sides.
6. Points (i) and (ii): - In this case, there is no direct evidence to
prove the charge against the 1st accused. Therefore, the prosecution has relied
upon circumstantial evidence. It was argued by Sri.Sujithkumar.T.U., the
learned counsel appearing for the 1st accused/appellant that the prosecution
has not succeeded in proving the charge against the 1st accused beyond
reasonable doubt. Therefore, he prayed for acquitting the appellant. On the
other hand, Sri.E.C.Bineesh, the learned Public Prosecutor, would argue that
there is absolutely no grounds to interfere with the findings of the trial court
and therefore, he prayed for dismissing the appeal.
7. The law on circumstantial evidence is well settled. When a
case is governed by such evidence, the evidence must point singularly to
the guilt of the accused, closing out the possibility of all other
hypotheses. (Prakash Nishad @ Kewat Zinak Nishad v. State of
Maharashtra, 2023 KHC 6605)
8. The celebrated decision relating to the nature, character and
essential proof required in a criminal case which rests on circumstantial
evidence alone is Hanuman Govind, Nargundkar and Another v.State
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of M.P., AIR 1952 SC 343. In the above decision, the Apex Court held in
paragraph 10 thus:
"It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of
guilt is to be drawn should in the first instance be fully established, and
all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the circumstances should
be of a conclusive nature and pendency and they should be such as to
exclude every hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as not to
leave any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that within all
human probability the act must have been done by the accused."
9. The five golden principles (styled as panchasheel) relating to
circumstantial evidence consistently followed in subsequent decisions is,
Sharad Birdhichand Sardar v. State of Maharashtra, 1984 (4) SCC
116. In the said decision, the Apex Court after analysing various
decisions including Hanuman Govind (supra), in paragraph 153 held
that:
"A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
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drawn should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned 'must or should' and not 'may be' established. There is not
only a grammatical but a legal distinction between 'may be proved'
and 'must be or should be proved' as was held by this Court in Shivaji
Sahabrao Bobade & Anr. v. State of Maharashtra where the following
observations were made:
"Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and the
mental distance between 'may be' and 'must be' is long and
divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say. they should not
be explainable on any other hypothesis except that the accused is
guilty,
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except the one
to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused."
10. One of the circumstances relied upon by the prosecution as well
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as the trial court is the recovery of MO2 foot-wears belonging to the 1 st
accused from the scene of occurrence. PW1 was working as mason in PPK
Tiles Company wherein the accused and deceased were also working. He
would swear that on getting information that the body of Jiharul Islam is
found near Thumbumuri Canal, he reached there and found the dead body. He
had also noticed two pairs of foot-wears, one note book and a stone near the
dead body. He identified MO1 as the foot-wears of the deceased, MO2 as the
foot-wears of the 1st accused and MO7 as the note book which was used to be
carried by the accused. He also identified MO8 as the stone found near the
dead body.
11. It was argued by the learned counsel for the accused that
identification of MO2 foot-wear by PW1 could not be believed in the light of
Ext.D1 statement given by him to the police. It is to the effect that, he came to
know only from others that MO2 belonged to the 1 st accused. It is true that as
per Ext.D1, the knowledge of PW1 regarding MO2 is only hearsay
knowledge. However, PW22, the brother of the deceased who was also
working in PPK Tiles Company along with the deceased as well as the 1 st
accused, in clear terms deposed that he was residing just opposite to the room
of the 1st accused and he knew that MO2 foot-wears are that of the 1 st accused.
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In order to convince his above version, he stated that it was the 1 st accused
who wears the largest foot-wear, among all the employees working in the
Company. Considering the length of MO2 foot-wears, the trial court rightly
found that there is nothing to disbelieve the evidence of PW22 that MO2 foot-
wears belonged to the 1st accused.
12. The fact that MO7 note book recovered from the place of
occurrence near the dead body of the deceased belongs to the 1st accused, was
practically not challenged during the cross-examination. At first, PW1
identified MO7 and later on, the same was identified by PW22 also. During
the cross-examination of PW1, not even a suggestion was put to the effect that
MO7 note book does not belong to the 1st accused. Though during the cross-
examination of PW22, a suggestion was put to him to the effect that MO7
notebook does not belong to the 1st accused, we do not find any force in the
above contention raised by the 1 st accused especially because, the evidence of
PW1 substantiates the evidence of PW22 in that respect. Therefore, from the
combined effect of the evidence of PWs1 and 22, it can be safely concluded
that MO7 note book recovered from the place of occurrence near the dead
body of the deceased belonged to the 1st accused.
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13. MOs12 and 13 are the dress worn by the 1 st accused at the time of
commission of the offence. The above dress of the 1 st accused was recovered
by PW24, the Investigating Officer on the basis of Ext.P3(a) disclosure
statement given by the 1st accused. PW24 also deposed that after the accused
was arrested and questioned, he had given the disclosure statement to the
effect that the dress worn by him was kept in the canal near the place of
occurrence and accordingly, as directed by the accused, he was taken to that
place from where he had taken out MOs12 and 13 dress, which was seized as
per Ext.P3 mahazar. PW5, the Manager of PPK Tiles Company deposed that
he had seen the recovery of MOs12 and 13 as per Ext.P3 mahazar. The
evidence of PW5 that he had seen the accused wearing MOs12 and 13,
remains unchallenged. PW22 also would swear that MO12 and 13 are the
dress worn by the 1st accused. The fact that the 1st accused has not offered any
explanation for abandoning his dress in the above canal near the place of
occurrence, also assumes significance in the facts of this case.
14. As per Ext.P38 chemical analysis report, blood stains were
detected in MOs12 and 13 dress belonged to the 1 st accused. The accused has
not offered any explanation for the presence of blood in his dress MOs12 and
13 which were recovered on the basis of Ext.P3(a) disclosure statement given
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by him, from a place near the place of occurrence. It is another circumstance
against the 1st accused.
15. PW3 is the owner of the hotel in which the deceased was
working. He would swear that on the date of incident, the deceased worked in
his hotel till 10.30 p.m. and thereafter he had proceeded to his place of
residence in PPK Tiles Company.
16. PW4, another witness examined by the prosecution would swear
that on the date of incident at about 11.30 p.m., he had given lift to the 1 st
accused from Kurundoli junction to a petrol pump at Valiyaparambu. He
would further swear that from the petrol pump, the 1 st accused got the vehicle
of one Lakshmanan and in that vehicle he went away from there. The conduct
of the 1st accused in absconding from the place of occurrence immediately
after the incident is another circumstance against the 1st accused.
17. MO8 was a stone allegedly used by the 1 st accused for thrashing
the deceased and inflicting fatal injuries on his head and chest. PW17, the
Scientific Officer, DCRB would swear that he had visited the place of
occurrence and collected samples from MO8 stone also. On examination, it
was revealed that the DNA profile found on MO8 stone tallies with that of the
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deceased. The above circumstance substantiates the prosecution case that
MO8 was the weapon used by the assailant to inflict the fatal injuries on the
body of the deceased.
18. PW18, the Medical Officer, Medical College Hospital, Thrissur,
who had conducted postmortem examination on the body of the deceased and
issued Exhibit P24 postmortem certificate would swear that he had noticed the
following ante-mortem injuries on the body of the deceased:
1. "Lacerated wound, 8x1.5cm, 3cm deep, around outer half of
right eye. Underneath fracture of lateral wall of orbit.
2. Lacerated wound, 3.5x l cm, bone deep, oblique, on right side of
head, its front inner end 8cm outer to midline and 3cm vertically above
root of ear.
3. Lacerated wound, 4.5x0.5cm, bone deep, on left side of top of
head, 3cm outer to midline and 15cm behind eyebrow.
Underneath injury no.2 and 3, contusion of scalp, over an area
18x9cm, involving its full thickness. Depressed comminuted fracture
over an area 9x6cm involving frontal and right parietal bones. Fracture
fragmentation of right side of anterior cranial fossa and middle cranial
fossae. Subdural haemorrhage seen over both parietal lobe.
Subarachnoid haemorrhage seen all over the brain.
4. Lacerated wound, 1.5x0.5x0.3cm, on root of nose underneath
fracture of nasal bone.
5. Multiple small abrasions, over an area 4x2cm, on right side of
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face, 4cm outer to midline and l cm above jaw margin.
6. Abraded contusion, 4x3x0.5cm, on right side of face, 6cm outer
to midline and 5cm above jaw margin.
7. Contusion, 1.5x0.5x0.5cm, on inner aspect of upper lip on right
side, 1 cm outer to midline and 2cm above gum margin.
8. Contusion, 0.5x0.5x0.5 cm, on left side of upper lip, 0.5cm outer
to midline and 0.5cm above gum margin.
9. Lacerated wound, 2x0.5x0.3cm, on right side of lower lip, 1 cm
outer to midline and 1cm above gum margin, surrounded by a
contusion of 4x3x0.2 cm.
10. Contusion, 2x1x0.5cm, on left side of lower lip, 0.5cm outer to
midline and 1 cm above gum margin.
11. Cresentric abrasion, 1x0.2 cm, its convexly facing upwards, on
right chin.
12. Cresentric abrasion, lx0.2 cm, its convexity facing upwards, on
right side of neck, 7.5 Cm outer to midline and 6 cm below mastoid,
13. Contusion, 5x4x1 cm, on right side of lower part of neck, 5 cm
outer to midline and 2 cm above collar bone.
14. Multiple abrasion, of sizes ranging from 0.2X0.2 cm to lxl cm,
over an área 4.5x4 cm, on right side of neck, 4 cm outer to midline and
3 cm below right angle of mandible.
15. Cresentric abrasion, 0.5x0.1 cm, its convexity facing
downwards, on right side of neck, 1.5 cm outer to midline, 5 cm below
jaw iargin.
16. Cresentric abrasion, 1 x0.2 cm, its convexity facing upwards, on
neck at midline, 7cm above top of sternum.
17. Linear abrasion, 2 cm long, oblique, on let side of neck, its
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upper inner end 2 cm outer to midline and 2.5 cm below jaw margin.
18. Multiple abrasions, sizes ranging from 0.2x0.2 cm to 1.45x0.5
cm, over an area 4x4 Cm, on left side of face, 2.5 cm outer to midlne
and 2 cm below jaw margin.
Underneath injury no. 12 to 18, muscles were contused. Inward
fracture of greater horns of hyoid bone and fracture of superior horns
of thyroid cartilage.
19. Fracture of II, III, IV ribs at front aspect, I1, III, IV, V, VI, VII,
VIII ribs at outer aspect and III to XII ribs at back aspect on right side.
Fracture of III, IV ribs at front aspect, III, IV, V, VI, VII, VỊII ribs at
outer aspect and Il to XII ribs at back aspect on left side. Thoracic
cavity contained 250 ml of fluid blood each. Lacerated wound, 2.5 x 1x
0.5 cm, on back aspect of lower lobe of left lung. Contusion, 3x3x0.5
cm, on lower aspect of middle lobe of right lung. Lacerated wound,
2x2xl cm, on front aspect of upper lobe of right lung. Lacerated wound,
3 x 1xl cm, on back aspect of upper lobe of right lung.
20. Abrasion, 2x2 cm, on top of left shoulder.
21. Abrasion, 0.5x0.5 cm, on outer aspect of right arm, 16 cm below
tip of shoulder.
22. Abrasion, 2x2 cm, on back of right elbow.
23. Abrasion, 2xl cm, on outer aspect of rigit forearm, 8 cm above
wrist.
24. Abrasion, lxl cm, on front of right arm, 5 cm above elbow.
25. Multiple small abrasions, over an area 2x2 cm, on outer aspect
of left elbow.
26. Multiple small abrasions, over an area 2x2 cm, on front of left
foream, 2 cm below elbow.
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27. Abrasion, 4.5x2 cm, on front of left forearm, 4 cm below elbow.
28. Linear abrasion, 6 cm on back of left forearm, 10 cm above
wrist.
29. Abrasion, 2x1 cm, on inner aspect of lef forearnm, 2 cm above
wrist.
30. Multiple small abrasions, over an area 2x2 cm, on front of right
knee.
31. Linear abrasion, 3 cm long, on front of right leg, 4 cm above
ankle.
32. Abrasion, 2x2 cm, on top of right foot, 2 cm below ankle."
19. According to PW18, the cause of death was due to the blunt
injuries suffered on the head and chest and manual strangulation. Further
according to him, injury Nos. 2, 3, 12 to 18 and 19 are fatal injuries. Injury
Nos.12 to 18 can be caused due to manual strangulation and injury Nos.2, 3
and 19 are blunt injuries which could be caused by using MO8 stone. He has
noticed altogether 32 injuries on the body of the deceased including fracture
of most of the ribs at the front aspect, outer aspect as well as back aspect of
right side. It goes without saying that all these injuries are not possible in a
fall. In the above circumstances, the finding of the trial court that the death of
deceased Jahirul Islam is a homicide is well founded.
20. The fact that the wife of the accused Heera eloped with Minarul
Islam namely, PW23 is not disputed. PW23 himself admitted that Heera
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eloped with him at her own instance. When Heera was examined as PW21,
she also admitted that she eloped with PW23. PW22 would further swear that
thereafter the 1st accused used to threaten him and his other brothers including
the deceased that unless his wife is returned to him, he will murder one of the
brothers of PW23. PW1 also deposed that he had seen the 1st accused
threatening the deceased of evil consequences. He also deposed that once
deceased told him that he apprehends that 1st accused may at any time kill
him. PW22 also deposed that on the previous day also, the 1 st accused came
to his place of residence and threatened him of evil consequences. Therefore,
from the evidence of PW1, 21 and 22, the enmity and motive of the 1 st
accused towards the deceased was established.
21. During the cross-examination of PW4 a portion of his 161 Cr.P.C
statement was marked as Ext.D2. Ext.D2 is only the reason given by the
accused to PW4 for getting a lift in his bike. Similarly, during the cross-
examination of PW5, portions of his 161 Cr.P.C statement were marked as
Exts.D3 and D4. Ext.D3 is to the effect that the witness proceeded to the place
of recovery as requested by the Inspector. The evidence of PW5 is to the
effect that he went to the place of recovery at his own instance. Ext.D4 is to
the effect that the accused handed over the shirt and jeans to the Inspector.
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However, his evidence is to the effect that the accused only pointed towards
the place from where the dress was recovered. Those contradictions are minor
in nature not affecting the recovery of MOs12 and 13 at the instance of the
accused.
22. The accused has not offered any explanation for the presence of
MO2 footwear and MO7 note book belonging to him at the place of
occurrence and near the dead body of the deceased. Accused also could not
offer any valid explanation for abandoning MOs12 and 13 dress worn by
him at the time of incident, at a canal near the place of occurrence. He also
has not offered any explanation for the presence of blood in his dress, MOs 12
and 13. He also has not offered any valid explanation for absconding from
the place of occurrence immediately after the death of the deceased. All these
circumstances form a chain, from which the only hypothesis possible is that it
was the 1st accused, who had attacked and killed the deceased using MO8
stone, in order to wreck vengeance against PW23 for the reason that his
brother PW23 alienated the wife of the accused, away from him. In the above
circumstances, the trial court was perfectly justified in finding that it was the
1st accused, who had committed culpable homicide of the deceased Jahirul
Islam.
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23. As we have already noted above, PW18 has noticed altogether 32
injuries on the body of the deceased. According to PW18, most of the ribs of
the deceased at front aspect, outer aspect and back aspect were fractured in the
incident. MO8 is a huge stone having a size of 51x23x12 cm. It appears that
the 1st accused has thrashed the deceased using MO8 on his head as well as on
his chest. From the size of MO8 stone as well as from the nature of the
injuries sustained on the body of the deceased, it can be concluded without
any iota of doubt that the accused/appellant has inflicted those injuries on the
body of the deceased with the intention to cause his death.
24. Even if it is assumed that he had no intention to cause the death
of the deceased, he had at least the intention to cause such bodily injury on
the vital parts of the body of the deceased namely, on his head and chest, as
noted in Exhibit P24 postmortem certificate, which is sufficient in the
ordinary course of nature to cause death. Further, as deposed by PW18, the
injury Nos.2, 3 and 19 caused using MO8 are sufficient in the ordinary course
of nature to cause death. The accused has no case that his above act will come
under any of the exceptions to section 300 IPC. In the above circumstance, the
act of the accused/appellant will come under part III of Section 300 IPC
namely, murder, punishable under Section 302 IPC. The trial court has
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imposed only the minimum punishment of imprisonment for life to section
302 IPC and as such we do not find any valid grounds to interfere with the
impugned judgment of the trial court. Points 1 and 2 answered accordingly.
In the result, this appeal is dismissed, confirming the conviction and
sentence passed by the trial court.
Sd/-
P.B. Suresh Kumar, Judge
Sd/-
C. Pratheep Kumar, Judge
Mrcs/sou/26.9.
