Kerala High Court
Seema vs State Of Kerala on 24 October, 2024
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2024:KER:79063
Crl.A.Nos.1313 & 1316 of 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRL.A NO. 1313 OF 2018
AGAINST THE JUDGMENT IN SC NO.583 OF 2015 OF
ADDITIONAL SESSIONS JUDGE - II, NORTH PARAVUR
APPELLANT:
SEEMA
AGED 40 YEARS
W/O MOHAN DAS RAMATTU(ANIZHAM) VEETTIL ERAMAMBHAGAM
MUPPATHADAM KADUNGALLOOR
BY ADVS.
P.A.AYUB KHAN
SRI.A.M.UMAR NASEEF
RESPONDENTS:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA
BY ADV SRI.ALEX M.THOMBRA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.10.2024, ALONG WITH CRL.A.1316/2018, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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Crl.A.Nos.1313 & 1316 of 2018 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRL.A NO. 1316 OF 2018
CRIME NO.1142/2012 OF Eloor Police Station, Ernakulam
AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY
THE COURT OF THE ADDITIONAL SESSIONS JUDGE-II, NORTH
PARAVUR IN S.C.NO.583 OF 2015 DATED 29.09.2018.
APPELLANT/ACCUSED NO.1:
GIREESH KUMAR P.G
AGED 37 YEARS
S/O.GOPALAN AACHARY, HARISREE VEETIL, VAIKOM,
AARATTUKULANGARA, NADUVILA
BY ADVS.
M.VIVEK
SRI.M.R.MADHU
RESPONDENT - COMPLAINANT - STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM
BY ADV SRI.ALEX M.THOMBRA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.10.2024, ALONG WITH CRL.A.1313/2018, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2024:KER:79063
Crl.A.Nos.1313 & 1316 of 2018 3
JUDGMENT
G.Girish, J.
These appeals are filed by accused Nos.1 and 2 in S.C.No.583/2015
of the Additional Sessions Court-II, North Paravur, challenging their
conviction and sentence, as per the judgment dated 29.09.2018. The 1st
accused, who is the appellant in Crl.Appeal No.1316 of 2018, was found
guilty of Section 120B read with Section 302 I.P.C in addition to an
independent charge under Section 302 I.P.C. He was awarded life
imprisonment and fine Rs.50,000/- as punishments separately for the
aforesaid charges. The 2nd accused, who is the appellant in Crl.A No.1313
of 2018, was found guilty of Section 109 read with Section 302 I.P.C and
Section 120B read with Section 302 I.P.C, and awarded life imprisonment
and fine Rs.10,000/- as punishments separately for the aforesaid charges.
Default sentences of rigorous imprisonment for two years and rigorous
imprisonment for six months respectively were provided for the fines
imposed upon accused Nos.1 and 2. However, the learned Additional
Sessions Judge made it clear in the impugned judgment that the
sentences of life imprisonment shall run concurrently.
2. The prosecution case is summarized as follows:
The deceased by name Mohandas, an employee of Deshabhimani
Press, Kaloor, and the 2nd accused, working in a photostat shop at Penta
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Menaka, were husband and wife. The 1st accused was working as an
Accountant in a textile shop by name Furore Apparels near to the
workplace of the 2nd accused. Accused Nos.1 and 2 had acquaintance with
each other which resulted in illicit relationship for a period of about five
years. They used to visit Guruvayur and stay in Room No.16 of a lodge by
name Nenmini Tourist Home there, on several occasions. The 1st accused
committed misappropriation of more than Rs.1 Crore at the establishment
where he was working, and delivered the proceeds of the said crime to the
2nd accused, who used the same to invest in landed properties and to lend
money to her relatives. Accused Nos.1 and 2 used to have secret
conversations making use of the mobile phone with sim card exclusively
meant for the same. While so, the management of Furore Apparels
detected the misappropriation committed by the 1st accused, and
demanded back the money. Towards helping the 1st accused in the
repayment of money to the establishment where he was working, the 2nd
accused withdrew an amount of Rs.8,00,000/- from her account and
pledged 37 sovereigns of gold ornaments in a private financial
establishment at Aluva on 17.11.2012 and obtained Rs.7,18,080/-. The
total amount of more than Rs.15 lakhs so procured by the 2nd accused, was
paid by the 1st accused to Furore Apparels on 17.11.2012. In addition to
that, the mother of the 1st accused had transferred an extent of 4.05 cents
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of land with building therein to the Managing Director of Furore Apparels
in lieu of the money due from the 1st accused. However, inspite of the
payments and transactions so made, still amounts were outstanding to be
repaid by the 1st accused to Furore Apparels. Hence, the accused
demanded money from deceased Mohandas towards such payment to
Furore Apparels. Deceased Mohandas refused to accede to the above
request. Due to the above reason, and also due to the wanton desire of
accused Nos.1 and 2 to have an unfettered illicit relationship, they decided
to finish off the deceased, and accordingly entered into a criminal
conspiracy to commit murder of Mohandas. In tune with the plan so
chalked out by accused Nos.1 and 2, the 2nd accused gave a kit containing
waste to her husband, while he was about to go for work at about 7.20
p.m. on 02.12.2012, and instructed him to dispose of the said kit by the
side of container road. She also told her husband that the 1st accused
would be waiting at the container road and that he must be given a lift to
Amrita Hospital. Immediately thereafter, when the deceased Mohandas
proceeded from his house in his motorbike, the 2nd accused conveyed the
information to the 1st accused through her mobile phone. The 1st accused
joined the deceased Mohandas at the road near old Anavathil Junction at
about 7.35 p.m and travelled in the motorbike of Mohandas as a pillion
rider. While they reached near new Anavathil Junction at container road,
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the 1st accused asked Mohandas to stop the vehicle, and thereafter,
covered the mouth of Mohandas with a cloth soaked with chloroform.
Mohandas, who fell down from the motorbike, managed to rise up and ran
upto a distance of about 30 metres towards the East, but the 1st accused
chased and caught hold of him. Thereupon, Mohandas collapsed due to
high blood pressure. The 1st accused then pushed down Mohandas to the
bushes by the side of the container road and cut his throat with the knife
(MO29) kept by him. He then threw away the knife, purse and mobile
phone of Mohandas to the foliage by the side of the container road. After
returning home, he also burnt his pants and shirt to destroy evidence.
3. Finding that Mohandas had not reported for duty, one Rajeev,
Sunil and PW1, the brother-in-law of Mohandas, started a search to trace
him on the night of 02.12.2012. After a few hours, they could find the
abandoned motorbike of Mohandas, and later on his dead body lying in the
foliage by the side of the container road. PW1 immediately reported the
matter to Eroor Police Station at 2:00 a.m. on 03.12.2012, and accordingly,
on the basis of Ext.P1 F.I.S given by PW1, an F.I.R under Section 174
Cr.P.C. was registered by PW38, the Additional Sub-Inspector of Police,
Eroor. Soon, the investigation was taken over by PW47, the Circle
Inspector of Police, Ernakulam North Police Station. Upon finding that the
deceased was murdered by slitting his throat, PW47 filed the necessary
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report before the jurisdictional Magistrate, incorporating the offence under
Section 302 I.P.C. PW47 arrested accused Nos.1 and 2 on 10.12.2012 and
11.12.2012 respectively. He also effected the recovery of various material
objects including the weapon of offence, mobile phones, the bottle in
which the 1st accused carried chloroform, etc. The other routine
procedures of investigation like, preparation of inquest report, collection of
specimens for scientific analysis, autopsy of the body, etc., were also done
as per the direction of PW47. After the completion of the investigation,
PW47 laid the final report before the jurisdictional Magistrate in respect of
the offences under Sections 109, 120B and 302 I.P.C read with Section 34
I.P.C.
4. Upon commitment and make over of the case, the learned
Additional Sessions Judge-II, North Paravur, after hearing both sides, and
after a scrutiny of the prosecution records, framed charge under Section
302 I.P.C and Section 120B read with Section 302 I.P.C as against the 1st
accused, and Section 120B read with Section 302 I.P.C and Section 109
read with Section 302 I.P.C as against the 2nd accused. The charges were
read over and explained to the accused, to which they pleaded not guilty.
In the trial that followed, 47 witnesses were examined from the part of the
prosecution as PW1 to PW47 and 61 documents were marked as Exts.P1
to P61. 33 material objects were identified as MO1 to MO33.
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5. PW1 is the brother-in-law of the deceased. He testified before
the Trial Court that one Syam, the colleague of the deceased, had called
him on the night of 02.12.2012 and informed that the deceased was
missing and that his motorbike was found by the side of container road.
Accordingly, PW1, along with a person by name, Rajeev and Syam are said
to have conducted searches at several places. Finally, they are said to
have reached the place where the motorbike of the deceased was found.
Upon further examination, they are said to have detected the body of the
deceased lying in the foliage by the side of Vallarpadam road. PW1 also
stated that they noticed that the neck of the deceased was found slit by
some sharp weapons. On the basis of Ext.P1 First Information Statement
given by PW1, the Eroor Police registered the First Information Report.
6. PW2 is a friend of the deceased, who had signed as attestor
to Ext.P2 inquest report. The wearing apparel and other personal
belongings found in the body of the deceased were marked as MO1 to
MO11 through PW2.
7. PW3 is a painting contractor known to the deceased. He was
the Ward Member of Eramam 19th Ward at the time of commission of the
crime. He is an attestor to Ext.P3 mahazar prepared by the Police in
connection with the recovery of a phone from the house of the deceased.
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8. PW4 is the employer of the 2nd accused, who testified before
the Trial Court that the 2nd accused had worked at his institution only till
16.11.2012.
9. PW5 is a person conducting a stationery shop at
Kannankulangara junction in Tripunithura. He was cited to show that the
1st accused had purchased soft drinks from his shop. However, PW5 stated
that he does not know the 1st accused.
10. PW6 was the Receptionist of Nenmini Tourist Home,
Guruvayur, where accused Nos.1 and 2 had visited and stayed on several
occasions within the period of three years from 2009 onwards. He had
signed as an attestor to Ext.P4 mahazar prepared by the Police in respect
of the room, where accused Nos.1 and 2 stayed at the above Tourist
Home. He had also executed Ext.P5 katchit undertaking to produce the
ledger of the aforesaid Tourist Home, which was later on marked as MO23.
11. PW7 is the person who is said to have purchased chloroform
at the request of the 1st accused. He stated before the Trial Court that he
was acquainted with the 1st accused since they were co-travellers in the
bus from Vaikom to Kaloor for a long time. According to PW7, he
purchased the chloroform on 24.11.2012 and handed over the same to the
1st accused at 6:00 p.m on the same day at KSRTC bus stand, Vaikom. It
is stated by PW7 that the 1st accused told him that chloroform was
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required in connection with the studies of the daughter of the 1st accused.
It is also stated that PW7 purchased chloroform vide Ext.P6 cash bill issued
in the name of the Principal of St.Xavier's college, Vaikom, where the sister
of the 1st accused was studying.
12. PW8 is the owner of the laboratory equipment shop from
where PW7 purchased the chloroform as requested by the 1st accused. He
confirmed the issuance of Ext.P6 bill to PW7 in connection with the above
purchase.
13. PW9 was a co-worker of the 1st accused at the establishment
by name, Furore Apparels. He stated before the Trial Court that the 1st
accused was an accountant in the above establishment and that he was
terminated from there due to misappropriation of money. PW9 identified
the 1st accused as well as the 2nd accused as the person who used to visit
the 1st accused at his place of employment.
14. PW10 is an attestor to Ext.P7 seizure mahazar prepared by
the Police in connection with the recovery of MO12 to MO18 by the side of
container road. The above items are said to be blood stained soil, grass, a
portion of the chain said to have been worn by the deceased, gloves,
turkey towel, etc.
15. PW11 is a person engaged in real estate business, at whose
instance the deceased is said to have entered into an agreement with a
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person by name Ummer for the purchase of a landed property with house.
He had signed as an attestor to Ext.P8 mahazar. He turned hostile to the
prosecution by saying that he had not seen the 1st accused.
16. P12 is the Administrative Manager of Furore Aparells, where
the 1st accused was working during the period from 2006 to 2014. He
identified the 1st accused and stated about the misappropriation of money
by him.
17. PW13 is the person by name, Ummer with whom the
deceased is said to have entered into an agreement for the purchase of a
house and landed property.
18. PW14 and PW15 are the witnesses to Ext.P9 recovery
mahazar. Both the above witnesses turned hostile to the prosecution. So
also, PW16 and PW17, who are the attestors to Exts.P10 and P11
mahazars, turned hostile to prosecution.
19. PW18 and PW19 are the attestors to the seizure mahazar
prepared by the Police in connection with the recovery of a stone used for
sharpening knife (ചാണക്കല്ല്). The above mahazar was marked as Ext.P12.
They are also attestors to Ext.P13 mahazar prepared by the Police in
connection with the seizure of the shoes and socks of the 1st accused, and
some ashes. The above witnesses also turned hostile to the prosecution
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since they stated that they did not see the 1st accused handing over
anything to the Police.
20. PW20 is a person who conducts an acupuncture clinic near to
the residence of the deceased. He stated before the Trial Court that he
had the occasion to see accused Nos.1 and 2, when they were brought to
the house of the deceased by the Police. He further swore that he had
signed as an attestor to Ext.P3 mahazar prepared by the Police in
connection with the recovery of MO20 mobile phone from that house. He
also identified the cover of the above mobile phone as MO21.
21. PW21 is an attestor to Ext.P14 mahazar prepared by the
Police at the time of recovery of MO22 glass bottle, in which the 1st
accused is said to have carried the chloroform.
22. PW22 was a receptionist at Nenmini Tourist Home, Guruvayur,
where accused Nos.1 and 2 had resided together on various occasions. He
stated before the Trial Court that he had signed as an attestor to Ext.P15
mahazar, and that MO23 was the ledger for the year 2012-2013
maintained in that tourist home.
23. PW23 was the Branch Manager-in charge of Muthoot Finance,
Aluva Market Road, through whom the pledge form signed by the
deceased at the time of pledging gold there, marked as Ext.P16. He
further stated that 299.2 gms. of gold was so pledged for an amount of
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Rs.7,18,000/-. PW24 is also a staff of Muthoot Finance, Aluva Market Road
through whom the mahazar prepared by the Police in connection with the
recovery of pledge form, gold loan ledger, etc., marked as Ext.P14.
24. PW25 was the Ernakulam Branch Manager of REBCO Home
Finance, who is said to have handed over the loan sanction order and
repayment track to the Police.
25. PW26 was a person who was the neighbour of the deceased,
while the deceased had been residing near Kadungallur Temple. He is said
to have met the deceased at 3:00 p.m on 02.12.2012 at the house of one
Sanojkumar, the brother of the 2nd accused, while participating in a
birthday party. He also stated that he had gone to the house of the
deceased by the evening of the same day, and that the deceased had left
his house to his place of employment at about 6:00 p.m. According to
PW26, the 2nd accused handed over a kit containing wastes to him and
instructed him to hand over the same to the deceased. He further stated
that he had handed over the above kit to the deceased and left the place
after about 5 to 10 minutes. On the way to his house, PW26 is said to
have received a video call from the deceased, but nothing could be seen or
heard since it was a blank call. According to PW26, though he responded
by making a voice call to the deceased, it was not connected. Thereafter,
PW26 is said to have received the information about the missing of the
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deceased and that they made widespread enquiries at various hospitals to
trace out the deceased whose bike was recovered from the container road.
Later on, PW26 is said to have gone to the place where the dead body of
the deceased was found. During cross-examination, PW26 stated that he
was harassed by the Police for about five days for the reason that the last
video call of the deceased was to him.
26. PW27 is the owner of a stationary shop near Vaikom temple
from where the 1st accused is said to have purchased MO15 gloves for the
commission of the crime. Though PW27 stated about the aforesaid
purchase made by the 1st accused, he further added that it was not
possible to identify MO15 gloves since the above commodity is widely
available in market.
27. PW28 is an attester to Ext.P18 mahazar prepared by the
Investigating Officer at a time when the cash bill for the purchase of
chloroform was taken into custody. However, the above witness stated
that, apart from signing in Ext.P18 as an attester, he does not know
anything about the record taken into custody at the time of preparation of
that mahazar.
28. PW29 is the Senior Civil Police Officer of Palarivattom Police
Station who was on bandobast duty of the dead body of the victim at the
time of performance of autopsy. PW29 had handed over to the Circle
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Inspector, the nail clippings, scalp, hair, blood sample etc. which the Police
Surgeon entrusted him after postmortem.
29. PW30 was the Joint R.T.O, Vaikom who handed over Ext.P19
R.C particulars of the motorbike of the 1st accused to the Investigating
Officer. PW31 was the Joint R.T.O, Aluva who handed over Ext.P20 R.C
particulars of the motorbike of the deceased.
30. PW32 was the District Police Surgeon, Ernakulam who
conducted the autopsy of the deceased and issued Ext.P21 postmortem
certificate in which he noted two antemortem injuries. According to PW32,
the victim died as a result of the cut throat injury which he mentioned as
the first item in Ext.P21. PW32, after observing MO1 knife, stated before
the Trial Court that injury No.1 could be caused by the said weapon.
31. PW33 and PW34 are special Village Officers of Eloor and
Thrikkakara North respectively. PW33 had prepared and handed over the
site plans which are marked as Exts.P22 and P23 respectively. PW34 had
issued Ext.P24 site plan in respect of the place where the 1st accused had
parked his motorbike by the side of Eloor road at Premier Junction, shortly
before the commission of crime.
32. PW35 was the Sub Registrar of Vaikom who issued Ext.P25
certified copy of sale deed No.2593/2012 as requested by the
Investigating Officer.
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33. PW36 was the Managing Director of the establishment by
name 'Furore Apparels' where the 1st accused had worked as an
Accountant. He stated before the Trial Court that the 1st accused had been
involved in the misappropriation of an amount of Rs.1 Crore and 2 lakhs in
the said establishment. According to PW36, the 1st accused had
redeposited an amount of Rs.15 lakhs on the next day after the detection
of the above misappropriation. In respect of the balance amount, the
mother of the 1st accused is said to have assigned her property to the
company for an amount of Rs.10 lakhs. PW36 also stated that they had
complained before the Ernakulam Central Police Station for the balance
amount due to the company in connection with the misappropriation done
by the 1st accused.
34. PW37 was the Sub Inspector of Ernakulam Central Police
Station who registered Ext.P26 F.I.R in connection with the complaint
preferred by the company where the 1st accused worked, about the
misappropriation of money.
35. PW38 was the Grade A.S.I of Eloor Police Station who
registered Ext.P27 F.I.R on the basis of the first information statement
given by PW1 in connection with the present crime.
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36. PW39 was the Manager of the Press where the deceased
worked. He had issued Ext.P28 salary certificate as requested by the
Investigating Officer.
37. PW40 was the Village Officer of Guruvayoor who had prepared
and issued Ext.P29 site plan of Room No.16 of Nenmini Tourist Home,
Guruvayoor where the accused Nos.1 and 2 were said to have been
residing during their visits there.
38. PW41 was the Scientific Assistant of Documents Section of
Forensic Science Laboratory, Thiruvananthapuram who had issued Ext.P30
report after comparing the signatures and writings in MO23 ledger with
Ext.P31 specimen writings and signatures of the 1st accused. She had
stated in Ext.P30 that the person who wrote Ext.P31 had also written the
questioned writings and signatures in the relevant page of MO23, marked
as MO23(a).
39. PW42 was the Scientific Assistant of District Crime Records
Bureau, Kochi who had examined the scene of crime in this case and
collected blood stains, dried blood stained leaves and also solid particles
from the left crashguard of the motorbike which belonged to the deceased.
She also examined the motorbike of the 1st accused and also collected
brown stains from the tool box on the left side of it. The above items
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collected by PW42 are said to have been handed over to the Investigating
Officer for transmission to the Forensic Science Laboratory.
40. PW43 was the Civil Police Officer of Eloor Police Station who is
said to have signed as an attester to the Mahazar prepared by the
Investigating Officer while receiving five packets wrapped with brown
paper, handed over by a Sub Inspector by name Sebastian to the
Investigating Officer. The aforesaid mahazar is not forthcoming in
evidence.
41. PW44 was the Civil Police Officer of Cheranalloor Police
Station who had signed as an attester to Ext.P32 mahazar prepared by the
Investigating Officer while receiving the motorcycle with Reg.No.KL-41F
7204 which belonged to the deceased.
42. PW45 was the Alternate Nodal Officer of Idea Cellular Limited,
Kerala Circle through whom Exts.P33 to P36 call details issued by the
Nodal Officer, one Mr.C.Ramachandran of Idea Cellular Limited, Kerala
Circle, were marked. The above witness was again recalled and further
examined for marking Exts.P46 series to P49 series which were the
customer application forms and accompanying records in respect of four
sim cards used in the mobile phones of the accused and the victim.
43. PW46 was the Assistant Sub Inspector of Kochi City Police
Control Wing who got information from the Control Room at about 8:00
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p.m on 02.12.2012 about a motorbike with helmet remaining unclaimed by
the side of the road near Anavathil Junction. He had proceeded to the
above place and detected the motorbike of the deceased which contained
the copy of the RC book showing the name of the deceased as the
registered owner. The aforesaid motorbike was then handed over to a Sub
Inspector of the traffic wing who took it away to the Traffic Police Station.
44. PW47 was the Circle Inspector of Police, Ernakulam Town
North Police Station who conducted the investigation in this case and laid
the final report before the court. He had conducted the inquest of the
body of the deceased and collected his personal belongings. He also made
arrangements for the scientific analysis of the material objects collected in
this case. He arrested accused Nos.1 and 2 on 10.12.2012 and
11.12.2012 respectively. On the basis of the disclosure statements given
by the accused during custodial interrogation, PW47 claims to have
recovered the material objects like the knife used for the commission of
the crime, the mobile phones and sim cards used by accused Nos.1 and 2
for their clandestine conversations, the grinding stone used for sharpening
the weapon of offence, the motorbike used by the 1st accused etc. He also
recovered the relevant ledgers from the Tourist Home at Guruvayoor
where the Accused Nos.1 and 2 were said to have been staying during
their visits there.
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45. After the close of the prosecution evidence, the learned
Additional Sessions Judge recorded the statements of the accused under
Section 313(1)(b) of the Code of Criminal Procedure. They took up a plea
of total denial and stated that a false case has been foisted against them.
46. After hearing the prosecution and the defence, the learned
Additional Sessions Judge found that there were no grounds for the
acquittal of the accused under section 232 Cr.P.C, and accordingly called
upon the accused to enter on their defence. Though, at the request of the
1st accused, summons was issued to four witnesses, the learned defence
counsel did not opt for the examination of those witnesses. The
contradiction in the prior statement given by PW6 (CW20) to the police,
was marked as Ext.D1 from the part of the accused.
47. After hearing both sides, and embarking upon an evaluation
of the evidence, the learned Additional Sessions Judge arrived at the
finding that the 1st accused committed the offence punishable under
section 120B read with Section 302 I.P.C apart from the substantial offence
punishable under Section 302 I.P.C. The 2nd accused was found to have
committed the offence punishable under Section 109 read with Section
302 I.P.C. and Section 120B read with Section 302 I.P.C. The 1st accused
was accordingly sentenced to life imprisonment and fine Rs.50,000/-
separately for both the offences found to have been committed by him.
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So also, the 2nd accused was sentenced to life imprisonment and fine
Rs.10,000/- separately for both the offences found against her.
48. Aggrieved by the aforesaid conviction and sentence, the 1st
accused has filed Crl.Appeal No.1316/2018 and the 2nd accused has filed
Crl.Appeal No.1313/2018. It has been contended by the appellants that
the Trial Court placed reliance on evidence which were not admissible, and
arrived at the findings against the accused on the basis of mere surmises.
It is also stated that the Trial Court failed to take note of the fact that the
prosecution had not succeeded in establishing the chain of circumstances
pointing to the guilt of the accused, and that there were several missing
links which were left unanswered. It is also contended that the Trial Court
overlooked several proved facts which were consistent with the innocence
of the appellants. Accordingly, the appellants have sought the intervention
of this Court for setting aside the impugned judgment.
49. Heard Adv.Mr.M.Vivek and Adv.Mr Ayub Khan, the learned
counsel appearing for appellants 1 and 2 respectively, and Adv.Mr.Alex M.
Thombra, the learned Senior Public Prosecutor.
50. This is a case where the prosecution relies on circumstantial
evidence to connect the accused with the crime. Though the act of
murder of deceased Mohandas was said to have been committed at some
point of time around 8:00 p.m on 02.12.2012, by the side of container
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road where there is continuous flow of vehicles and movement of
pedestrians, nobody had witnessed the incident. It appears that the
Investigating Agency narrowed down on the accused on the basis of some
suspicious circumstances, and thereafter built up the case on the basis of
the confession alleged to have been made by the accused, and the
recovery said to have been effected pursuant to the disclosures so made.
51. The first reason which prompted the Investigating Agency to
suspect the accused is the illicit relationship which they allegedly
maintained for a period of about five years prior to the death of Mohandas.
It is stated that the 1st and 2nd accused got the occasion to meet in
connection with the employment of the 1st accused at a textiles
establishment by name 'Furore Apparels', and the 2nd accused in a
photostat shop near to it, in Marine Drive. PW4, the employer of the 2nd
accused, gave evidence to the effect that the 1st accused frequently visited
his photostat shop, and that he knew the 1st accused as a person
employed in an office at Penta Menaka near to his shop. PW4 also stated
that the 2nd accused worked at his establishment till 16.11.2012. The
above date assumes significance since it coincides with the date when the
1st accused also got ousted from his office due to financial embezzlement
extending to more than Rs.1 Crore. Probably the above link between the
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1st and 2nd accused related to their places of employment might have
prompted the Investigating Agency to place their activities under scanner.
52. The prosecution, with much effort, had let in evidence
pertaining to the joint visits of the 1st and 2nd accused to Guruvayoor and
their stay together in a room in Nenmeni Tourist Home, to establish the
contention that they have been maintaining an amorous relationship for a
long period. PW6 and PW22, the employees associated with the aforesaid
Tourist Home, gave evidence before the Trial Court about the joint visits
and lodging in Room No.16 of the said Tourist Home by accused Nos.1 and
2 on several occasions during the period of five years prior to the date of
incident. In addition to the oral evidence of PWs 6 and 22 in the above
regard, the registers maintained at the said Tourist Home are brought on
record and marked as Exts.P37 to P45 and also MO23 to establish that
accused Nos. 1 and 2, had on several occasions, got themselves confined
to Room No.16 of Nenmeni Tourist Home, Guruvayoor. Thus, according to
the prosecution, the above visits and accommodation in a hotel room at
Guruvayoor cannot be presumed as done in connection with any worship
at the temple since the 1st accused is an unmarried person and the 2nd
accused is the wife of deceased Mohandas, and mother of two children.
53. Another circumstance relied on by the prosecution to show
that accused Nos.1 and 2 had been maintaining a forbidden relationship is
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that both of them used to indulge in secret conversations through mobile
phones exclusively set apart for that purpose. MO20 mobile phone said to
have been recovered from the residence of the 2nd accused, was allegedly
used by the 2nd accused with MO30 sim card registered in the name of the
1st accused, for their clandestine calls. The prosecution also relied on the
call detail records marked as Exts.P33 to P36 to show that the accused
Nos.1 and 2 were constantly in contact with each other for dubious
purposes.
54. The evidence pertaining to the misappropriation committed by
the 1st accused at the establishment where he worked, and the utilisation
of the proceeds of the above misappropriation by handing over the same
to the 2nd accused who is said to have invested it for the purchase of
properties and for lending money to relatives, is another circumstance
relied on by the prosecution to show the intimate relationship between the
accused Nos.1 and 2. When the establishment where the 1st accused
worked detected the embezzlement and demanded back the money from
him, the 2nd accused is said to have withdrawn an amount of Rs.8,00,000/-
from her account and pledged 37 sovereigns of gold ornaments and
mobilised an amount of Rs.7,18,080/- out of it. The aforesaid total
amount of around Rs.15,00,000/- was said to have been paid by the 2nd
accused to the 1st accused towards repayment of the money demanded by
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his employers. The evidence pertaining to mobilisation of money in the
above regard, and the payment of the same to the 1st accused, by the 2nd
accused, is pointed out as a strong circumstance establishing the wanton
bondage between the 1st and the 2nd accused.
55. Thus the prosecution repose upon the twin motives of the
intimate relationship between the 1st and 2nd accused who wanted to live
together to the exclusion of Mohandas, as well as the grudge nurtured by
the accused with Mohandas for his refusal to advance money to the 1st
accused, as the causative factor which resulted in the murder of
Mohandas.
56. The evidence let in by the prosecution in the above regard
certainly points to the intimate relationship between the 1st and 2nd
accused which is not expected in normal circumstances in the life of a
housewife like the 2nd accused, who was having a family consisting of her
husband Mohandas and two children. Though the above relationship
between the 1st and 2nd accused could be termed as one out-stepping the
parameters of morality, the case of the prosecution that accused Nos. 1
and 2, as a result of the above intimate relationship, were prompted to
terminate the life of Mohandas, requires some more evidence, either direct
or circumstantial. The mere contention that the accused were having
enmity with Mohandas due to his refusal to advance money to the 1st
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accused for the repayment of the money embezzled by him at his
establishment, also cannot be considered as a motive for the commission
of murder, in the absence of some materials atleast pointing to any plan
chalked out by the above accused in that regard. As far as the present
case is concerned, though the prosecution made a roving enquiry about
the cell phone conversations between accused Nos. 1 and 2, the evidence
adduced in the above regard lacks any material to prove a conspiracy
between the 1st and 2nd accused to eliminate Mohandas. Thus, it has to be
stated that the evidence relied on by the prosecution about the intimate
relationship between the 1st and 2nd accused, and the financial help
rendered by the 2nd accused to the 1st accused, itself cannot be projected
as one establishing the motive for committing the murder of Mohandas.
57. Though the main link of motive of the crime, which is of
paramount importance in cases of this nature, is found lacking, and the
success of prosecution based on circumstantial evidence is bleak in such
cases, we deem it appropriate to delve upon the other aspects as well
relied on by the prosecution, for the sake of a comprehensive adjudication
of the issue.
58. The evidence relating to the confession said to have been
made by the accused in police custody, and the recovery which the
investigating agency claimed to have effected on the basis of such
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disclosures, is the trump card projected by the prosecution to fasten the
accused with the criminal liability alleged in this case. The first and
foremost among the above recovery, is said to be the retrieval of MO29
knife which the 1st accused allegedly used to cut the throat of Mohandas
after trying to make him unconscious by applying chloroform soaked towel
upon his mouth. According to PW47, the investigating officer, the 1st
accused when questioned at 7.30 p.m. on 10.12.2012, told him that he
had thrown away the knife by the side of the container road, and that he
was ready to hand over the same if he is taken to that place. After getting
the aforesaid disclosure alleged to have been made by the 1st accused, the
investigating officer waited for more than 16 hours and proceeded to the
spot mentioned by the 1st accused only by 12.30 p.m. on 11.12.2012.
Though the case of the prosecution is that the 1st accused had thrown
away MO29 knife to the bushes by the side of the container road
immediately after the commission of the crime, Ext.P9 mahazar pertaining
to the recovery of the said weapon, and the evidence tendered by PW47 in
that regard is to the effect that the 1st accused, when brought to that
place, picked up MO29 knife from a spot and handed over the same to the
investigating officer as if he had concealed that weapon at that particular
spot which he found so easy to locate without any search. PWs 14 and 15,
the witnesses examined by the prosecution to prove Ext.P9 mahazar,
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confided before the trial court that they had no occasion to see the 1st
accused retrieving MO29 knife and handing over the same to PW47. It is
made clear by both the above witnesses in unequivocal terms that they
happened to sign Ext.P9 mahazar as attesters since the Sub Inspector who
was present there handed over a sheet of paper to them and requested
them to affix their signatures in it. According to PWs 14 and 15, they were
compelled to sign Ext.P9 due to their acquaintance with the above Sub
Inspector.
59. The recovery of MO29 knife in the above manner, is of no help
for the prosecution since it is not done in a manner recognized by law. The
Apex Court has time and again laid down the law that for proving the
recovery of material objects of a crime on the basis of the disclosure
statements given by the accused in police custody, the presence of two
independent witnesses right from the very beginning when the accused
makes the confession statement, till the material objects are handed over
by the accused to the investigating officer, is indispensable. It is now well
established that if the investigating agency proposes to proceed with the
recovery of material objects on the basis of the confession made by the
accused in police custody, the presence of two independent witnesses shall
be ensured from the very inception when the accused starts making the
disclosure. The statements so made by the accused shall be recorded by
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the Investigating Officer in the presence of those independent witnesses.
Thereafter, the independent witnesses should be present all along when
the accused along with the Investigating Officer proceeds to the place of
concealment, and the accused retrieves the material object and it is
handed over to the Investigating Officer. Furthermore, the independent
witnesses have to depose before the Court during trial about the whole
course followed, right from the making of disclosures, till the retrieval and
hand over of the material objects. The proposition of law in this regard
has been laid down by the Hon'ble Supreme Court in Subramanya v.
State of Karnataka [ (2023) 11 SCC 255 ] and Ramanand v. State
of U.P. [(2023) 16 SCC 510].
60. As far as the present case is concerned, none of the
indispensable requirements of law mentioned above are fulfilled in
connection with the recovery of MO29 knife. Thus, there is absolutely no
reliable material to establish that MO29 knife belonged to the 1st accused,
or that it was used by him to commit murder of Mohandas. It has to be
noted here that the prosecution made a futile attempt to connect the 1st
accused with the crime by relying on the recovery of MO33 grinding stone
(ചാണക്കല്ല്) which is said to have been used by the 1st accused to sharpen
MO29 knife for perpetrating the heinous act of slitting the neck of the
victim smoothly. However, the recovery of MO33, said to have been
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effected on the basis of Ext. P12 Mahazar prepared by PW47 at 1:30 p.m
on 14.12.2012 in accordance with the confession said to have been made
by the 1st accused at 7:30 p.m. on 10.12.2012, is also riddled by the
anomalies and irregularities as in the case of recovery of MO29 knife.
PW18 and PW19, the witnesses examined by the prosecution for proving
the recovery of MO33, confided before the trial Court that they had not
seen the 1st accused handing over MO33 to the Investigating Officer. That
apart, the prosecution failed to bring on record any evidence, scientific or
otherwise, to show that MO33 was used for sharpening MO29 knife.
61. The other recoveries pertaining to MO22 glass bottle, MO31
series and MO32 series shoes and socks, said to have been effected by
PW47 on the basis of the disclosures made by the 1st accused in his
confession statements, are also vitiated due to the very same legal
infirmities which vitiated the recovery of MO29 knife and MO33 grinding
stone. For the sake of brevity, we refrain from narrating the particulars of
the above recoveries and the flaws and procedural irregularities that had
crept in it, since they are exactly the same as happened in the recovery of
MO29 and MO33.
62. One of the main contentions of the prosecution is that the
evidence pertaining to the purchase of chloroform and gloves by the 1st
accused, when coupled with the recovery of MO22 glass bottle and MO15
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glove from the place near to the spot where the dead body of Mohandas
was found, would point to the involvement of the 1st accused in the crime.
It is true that the prosecution has succeeded in bringing out through the
testimony of PW7 that the 1st accused had asked him to procure
chloroform, claiming that it was required for the studies of his sister.
Accordingly, PW7 is said to have purchased a 500 ml bottle of chloroform
for Rs.235/- from a laboratory equipment store vide Ext.P6 bill issued in
the name of the Principal of St.Xavier's College, Vaikom. PW7 also stated
that he had delivered the above item to the 1st accused at the KSRTC bus
stand, Vaikom. However, there is absolutely no evidence brought out by
the prosecution to show that MO22 glass bottle recovered in this case was
used for carrying a portion of the above chloroform, in order to facilitate
the crime. Nor could the Investigating Agency recover the remaining
chloroform out of the 500 ml said to have been purchased by the 1st
accused, or offer any explanation why it could not be so recovered. It is
also pertinent to note that there is no scientific evidence about the
presence of the traces of chloroform in MO22 bottle, or Forensic evidence
to show that the deceased might have inhaled chloroform prior to his
death. Thus, the prosecution has failed to bring home the connecting link
of the purchase of chloroform by the 1st accused with the commission of
the crime.
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63. As regards the purchase of gloves by the 1st accused, PW27, a
stationery shop owner near Vaikom Temple, testified before the Trial Court
that the 1st accused had bought a pair of orange rubber gloves from his
shop in the month of November, 2012. With the objective of establishing
that MO15, an orange glove recovered by PW47 at the time of preparation
of scene mahazar, was the one among the pair of orange rubber gloves
purchased by the 1st accused, PW47 brought the 1st accused to the shop of
PW27 and cross-checked the identity of the said glove. However, PW27
stated before the Court in unequivocal terms that he cannot say that MO15
was one among the pair of orange rubber gloves which he sold to the 1st
accused. The reason stated by PW27 for his inability in stating the above
aspect is that orange rubber gloves of the same commodity and nature are
widely available in the market. Thus, the effort of the prosecution to
connect the 1st accused with the crime by pointing out the incriminating
circumstances arising out of the presence of the glove purchased by him at
the crime scene, met with failure.
64. In this context, it has to be stated that the best way which the
Investigating Agency could have opted to connect the 1st accused with
MO15 glove was to make an effort to trace out finger prints from the
interior aspect of that glove, and to compare it with the fingerprints of the
1st accused. The above procedure was not adopted by the Investigating
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Agency, and the explanation offered by PW47, is that it was not possible to
get traces of finger print from rubber gloves. The above statement of
PW47 is not in conformity with the scientific aspects on this matter. The
approved texts dealing with the collection of fingerprints from various
surfaces, do not rule out the possibility of getting fingerprints from rubber
gloves. Thus, it could be seen that the Investigating Agency did not care
to adopt the proper way to establish that MO15 recovered from the crime
scene belonged to the 1st accused.
65. As far as the 2nd accused is concerned, the prosecution placed
much reliance on the recovery of the sim card, mobile phone and mobile
phone cover marked as MO30, MO20 and MO21 respectively from her
house to show her involvement in the crime. However, the above recovery
said to have been effected by the Investigating Officer on 11.12.2012 vide
Ext.P3 Mahazar, also cannot be relied on for the failure of the investigating
agency to comply with the legal formalities which we have stated in
paragraph No.59 above. PW3, the witness examined by the prosecution to
prove the recovery of MO20, MO21 and MO30, stated before the trial Court
that he had only seen the 2nd accused when she was brought to her
residence, and that he had no occasion to see the retrieval of any mobile
phone from that house. Even otherwise, the evidence pertaining to the
use of a mobile phone containing the sim card purchased by the 1st
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accused cannot show anything other than the intimate relationship or close
association between the 1st and the 2nd accused. That by itself is of no
help for the prosecution in fastening the 2nd accused with the crime.
66. The conduct of the 2nd accused who had called the 1st
accused immediately after the deceased proceeded from his house in the
evening of 02.12.2012, is canvassed by the prosecution as a clinching
circumstance pointing to the hint given by the 2nd accused to the 1st
accused to get himself prepared for the commission of the crime. Coupled
with it, the act of the 2nd accused handing over a kit containing wastes
and garbages to the 1st accused at that time with the instruction to dispose
of it by the side of container road, is pointed out by the prosecution to
show that it was so done to facilitate the crime at the place proposed by
the 1st accused. It is true that the prosecution has succeeded in
bringing-forth evidence pertaining to the above acts of the 2nd accused.
However, in the absence of other connecting links, it is not possible to
speculate from the aforesaid acts of the 2nd accused that they were done
for the facilitation of the murder of Mohandas. Thus, the case mooted by
the prosecution in the above regard, cannot be said to have been
established, in the absence of connecting links showing the involvement of
the accused in the crime.
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67. It is the settled position of law that when the prosecution
relies on circumstantial evidence to establish the commission of the crime
by the accused, the evidence so adduced shall be capable of connecting all
links, which would lead to the irresistible conclusion that there is no other
possibility other than the one which is attributed against the accused.
68. The following excerpt from the judgment of the Apex Court in
Subramanya v. State of Karnataka, [(2023) 11 SCC 255] articulates
the law on this point:-
"Principles governing appreciation of circumstantial
evidence
46. A three-Judge Bench of this Court in Sharad Birdhichand
Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v.
State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri)
487] , held as under : (SCC pp. 184-85, paras 152-54)
"152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature,
character and essential proof required in a criminal case
which rests on circumstantial evidence alone. The most
fundamental and basic decision of this Court is Hanumant v.
State of M.P. [Hanumant v. State of M.P., (1952) 2 SCC 71]
This case has been uniformly followed and applied by this
Court in a large number of later decisions up-to-date, for
instance, the cases of Tufail v. State of U.P. [Tufail v. State of
U.P., (1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ram Gopal
v. State of Maharashtra [Ram Gopal v. State of Maharashtra,
(1972) 4 SCC 625] . It may be useful to extract what
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Mahajan, J. has laid down in Hanumant case [Hanumant v.
State of M.P., (1952) 2 SCC 71] : (SCC pp. 76-77, para 12)
'12. 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 tendency 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.'
153. 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 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 v. State of Maharashtra [Shivaji Sahabrao Bobade v.
State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri)
1033] where the following observations were made : [SCC p.
807, para 19 : SCC (Cri) p. 1047]
'19. ... Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can
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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.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence."
47. In an Essay on the Principles of Circumstantial Evidence
by William Wills by T. and J.W. Johnson and Co. (1872), it
has been explained as under:
"In matters of direct testimony, if credence be given to the
relators, the act of hearing and the act of belief, though
really not so, seem to be contemporaneous. But the case is
very different when we have to determine upon
circumstantial evidence, the judgment in respect of which is
essentially inferential. There is no apparent necessary
connection between the facts and the inference; the facts
may be true, and the inference erroneous, and it is only by
comparison with the results of observation in similar or
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analogous circumstances, that we acquire confidence in the
accuracy of our conclusions.
The term PRESUMPTIVE is frequently used as synonymous with
CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict
accuracy. The word "presumption", ex vi termini, imports an
inference from facts; and the adjunct "presumptive", as
applied to evidentiary facts, implies the certainty of some
relation between the facts and the inference. Circumstances
generally, but not necessarily, lead to particular inferences;
for the facts may be indisputable, and yet their relation to
the principal fact may be only apparent, and not real; and
even when the connection is real, the deduction may be
erroneous. Circumstantial and presumptive evidence differ,
therefore, as genus and species.
The force and effect of circumstantial evidence depend upon
its incompatibility with, and incapability of, explanation or
solution upon any other supposition than that of the truth of
the fact which it is adduced to prove; the mode of argument
resembling the method of demonstration by the reductio ad
absurdum."
48. Thus, in view of the above, the Court must consider a
case of circumstantial evidence in light of the aforesaid
settled legal propositions. In a case of circumstantial
evidence, the judgment remains essentially inferential. The
inference is drawn from the established facts as the
circumstances lead to particular inferences. The Court has to
draw an inference with respect to whether the chain of
circumstances is complete, and when the circumstances
therein are collectively considered, the same must lead only
to the irresistible conclusion that the accused alone is the
perpetrator of the crime in question. All the circumstances so
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established must be of a conclusive nature, and consistent
only with the hypothesis of the guilt of the accused."
As far as the present case is concerned, we are of the view that the
prosecution has failed to establish the chain of circumstances to link the
accused with the commission of crime. That being so, the conviction and
sentence of the accused, as per the impugned judgment of the learned
Additional Sessions Judge, have to be set aside.
In the result, both the appeals stand allowed. The impugned
judgment dated 29.09.2018 of the Additional Sessions Court-II, North
Paravur in S.C.No.583/2015 is set aside. The appellants (Accused Nos.1
and 2) are found not guilty of the offences charged against them and they
are acquitted thereunder. They are ordered to be released forthwith, if
their custody is not required in any other cases.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
G.GIRISH,
JUDGE
jsr/vgd
