Kerala High Court

Babu vs State Of Kerala on 25 October, 2024

Author: P.B.Suresh Kumar

Bench: P.B.Suresh Kumar

                                                    2024:KER:79241
        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                  &
       THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
                     CRL.A NO. 13 OF 2021
     AGAINST THE JUDGMENT DATED 09.11.2017 IN SC NO.1020
OF 2012 OF ADDITIONAL SESSIONS COURT, NEYYATTINKARA

APPELLANT/ACCUSED:

         BABU, AGED 55 YEARS
         S/O. THANKAPPAN,
         RESIDING AT VADAKKARIK PUTHEN VEEDU,
         THANPONNANKALA, KANJIRAMKULAM DESOM,
         KANJIRAMKULAM VILLAGE,
         THIRUVANANTHAPURAM DISTRICT, PIN-695 524,
         (CONVICT NO. 2220, C.P. AND C.H, POOJAPURA).

         BY ADV V.A.AJIVAS


RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED THROUGH THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM.

         BY PUBLIC PROSECUTOR SRI.E.C.BINEESH


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16.10.2024,   THE    COURT   ON       25.10.2024   DELIVERED   THE
FOLLOWING:
 Crl.Appeal No.13 of 2021




                                                          2024:KER:79241
                                   -: 2 :-




       P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
              -----------------------------------------------
                     Crl.Appeal No.13 of 2021
              -----------------------------------------------
           Dated this the 25th day of October, 2024


                              JUDGMENT

P.B.Suresh Kumar, J.

The sole accused in S.C.No.1020 of 2012 on the files

of the Court of the Additional Sessions Judge, Neyyattinkara, is

the appellant in the appeal. He stands convicted and

sentenced for the offence punishable under Section 302 of the

Indian Penal Code (IPC).

2. The dead body of one Suresh, a friend of the

accused was found in the septic tank of the house of one

Nirmala with whom the accused was residing till her death.

Suresh who was employed in a sawmill was residing in a house

located very close to the house held by Nirmala. A case was

registered by Kanjiramkulam Police in connection with the

spotting of the body of Suresh on the basis of the information

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furnished by Sasi, the brother of Suresh. Sasi was also residing

in the close neighbourhood of the house of Suresh. The

investigation in the case revealed that it was the accused who

concealed the dead body of Suresh in the septic tank after

causing his death. The final report was accordingly filed in the

case. The accusation in the final report is that at about 11.00

p.m. on 16.01.2011, due to previous enmity, the accused beat

Suresh on his head with a wooden log at the house of Nirmala

where the accused was staying after her death and when

Suresh fell down, the accused dragged his body near the septic

tank and hit again on the head of Suresh with a boulder and

thereupon, concealed the dead body inside the septic tank.

3. On the accused being committed to trial, the

Court of Session framed charges against him under Sections

302 and 201 IPC to which he pleaded not guilty. Thereupon, the

prosecution examined 23 witnesses as PW1 to 23 and proved

through them 30 documents as Exts.P1 to P30. MOs 1 to 20 are

the material objects in the case. When the incriminating

evidence was put to the accused in terms of the provisions

contained in Section 313 of the Code of Criminal Procedure

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(the Code), he denied the same and pleaded that he is falsely

implicated in the case. The stand taken by the accused at that

stage was that he was not residing in the house where the

body of the deceased was found. On a consideration of the

evidence on record, the Court however found that the accused

is guilty of the offence punishable under Section 302 IPC. He

was accordingly convicted and sentenced among others to

undergo imprisonment for life. The accused is aggrieved by his

conviction and sentence, hence this appeal.

4. Heard the learned counsel for the accused as

also the learned Public Prosecutor.

5. There is no eyewitness to the occurrence. The

prosecution, therefore, attempted to prove the guilt of the

accused through circumstantial evidence. The essence of the

elaborate arguments made by the learned counsel for the

accused is that the circumstances proved in the case do not

establish the guilt of the accused beyond reasonable doubt.

6. The point that falls for consideration,

therefore, is whether the circumstances proved in the case

would establish the guilt of the accused beyond reasonable

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doubt.

7. PW1 is Sasi, the brother of the deceased at

whose instance the case was registered. PW1 deposed that

while he was coming from Church by about 9.00 p.m. on

16.01.2011, he saw Suresh leaving his house in the company

of the accused and on the morning of the following day, PW1

was informed by someone that a quarrel had occurred between

them on the previous night. According to PW1, in the light of

the said information, he went to the house of the deceased and

enquired with his wife about the deceased and she then

informed him that the deceased left for work to Ernakulam. It

was deposed by PW1 that later, while on his way to

Kanjiramkulam, he noticed a foul smell emanating from the

septic tank of the house where the accused resided and

observed red sand placed on the top of the septic tank. It was

deposed by PW1 that he informed the matter to the concerned

member of the panchayat and also to one Rabi, the husband of

his cousin sister. According to PW1, when they checked the

septic tank by removing one of the slabs placed on it, they

found the body of Suresh inside the septic tank. It was also

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deposed by PW1 that the accused and Suresh used to quarrel

with each other after consuming liquor and that the wife of the

deceased had an extra-marital relationship with the accused.

In cross-examination, it was admitted by PW1 that he did not

give any statement to the police that he saw the deceased

leaving his house with the accused on 16.01.2011 while he

was coming back from the Church as stated in the chief

examination.

8. PW2 is the panchayat member referred to by

PW1. PW7 is Rabi referred to by PW1. Both PW2 and PW7

agreed with the evidence tendered by PW1 that they joined

with PW1 to check the septic tank where the body of the

deceased was found.

9. PW5 is the wife of the deceased. Her

statement was earlier recorded under Section 164 of the Code.

PW5 admitted in her evidence that she was using the mobile

number 9947198724. Likewise, PW5 admitted that she did not

go to see the dead body of the deceased, nor did she attend

his funeral. Similarly, PW5 admitted that she stated to the

Magistrate that she was in close association with the accused

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with the concurrence of her husband. As PW5 did not give

evidence in tune with her previous statements, the Public

Prosecutor questioned her as provided for under Section 154 of

the Indian Evidence Act. When the Public Prosecutor examined

PW5 thereupon in terms of the said section, it was deposed by

PW5 that her husband used to assault her; that she does not

like her husband and that her husband used to bring people to

their house and require her to cooperate with them; that the

accused is one among them and that the accused used to help

them financially.

10. PW6 is the wife of PW1. PW6 deposed that the

deceased was residing on the southern side of her house; that

at about 9.00 p.m. on 16.01.2011, there occurred a quarrel in

the house of the deceased and that she noticed the deceased

leaving the house in the company of the accused thereafter. It

was also deposed by PW6 that the accused used to come to

the house of the deceased very often and there was a rumour

in the locality that he has an illicit relationship with the wife of

the deceased. During cross-examination, when PW6 was asked

as to whether she had occasion to see the illicit relationship

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between the accused and the wife of the deceased, PW6

answered that she had occasion to see the accused lying on

the lap of PW5 and kissing her.

11. PW8 is the daughter of Nirmala. PW8 deposed

that after the death of her father, the accused was residing

with PW8 and Nirmala; that her mother owned an item of

property measuring 10 cents of which 7½ cents was sold by

her mother to conduct the marriage of PW8 and her sister; that

after their marriage, her mother was residing with the accused

in the house in the remaining 2½ cents and that after the

death of her mother, the accused was residing alone in that

house. PW15 was the Secretary of Kanjiramkulam Grama

Panchayat. PW15 deposed that as per the records maintained

at the panchayat, the building was in the name of Nirmala and

the occupant of the building is one Babu.

12. PW9 is a person who runs a mobile shop and

sells SIM cards. PW9 deposed that it was he who gave the

accused the SIM card of the mobile connection bearing number

9388192578 which was in the name of one Christhudas as the

said mobile number was not required for Christhudas anymore.

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PW10 is Christhudas referred to by PW9. PW10 deposed that

the SIM card of the mobile connection bearing number

9388192578 was entrusted to PW9 by him and the same was

one taken when the mobile phone used earlier by him was lost

and it was returned to PW9 when PW10 obtained a duplicate of

the SIM of his earlier number.

13. PW20 was a Scientific Assistant attached to

the District Crime Records Bureau and he was present when

the body of the deceased was taken out by the police from the

septic tank. It was deposed by PW20 that he collected and

handed over to the police at that time, among others, hair

samples, stained soil, stained cement plastering, stained

wooden powder scraped out from the door of the house and

stained plaster powder scraped out from the wall of the house.

14. PW21 was the police officer who commenced

the investigation in the case. PW21 deposed that he arrested

the accused on 21.01.2011 itself and seized the mobile phone

which the accused was carrying at the relevant time. It was

deposed by PW21 that during the interrogation conducted

thereupon, it was disclosed to him by the accused that he has

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kept a wooden log and a boulder at his house, and on the basis

of that information, when the accused was taken to his house,

he took out from inside a heap of firewood kept on a platform

on the south-western corner of the house, MO3 and MO4

wooden logs and MO5 boulder and the same were seized as

per Ext.P6 mahazar. The information which led to the recovery

of the said material objects is Ext.P6(a). Similarly, it was

deposed by PW21 that the accused disclosed to him during

interrogation that he burned some of his clothes at a property

near his house and when the accused was taken to the

property of one Kuttappan near the house of the accused, he

took out from there, a small quantity of ashes as also portions

of some unburnt clothes and the same were seized by PW21 as

per Ext.P7 mahazar. The information which led to the recovery

of the said material objects is Ext.P7(a). MO7 are the unburnt

portions of the clothes and MO8 is the ashes. The recovery of

MOs 3 and 4 wooden logs and MO5 boulder was witnessed by

PW11 and he deposed the said fact in his evidence. Similarly,

recovery of MOs 7 and 8 was witnessed by PW12 and he

deposed the said fact in his evidence.

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15. PW22 was the investigating officer who took

over investigation from PW21. PW22 deposed that PW5

surrendered before him, the mobile phone and the SIM card

which she was using as stated by her in her evidence and the

same were seized by him as per Ext.P8 mahazar. It was also

deposed by PW22 thereafter that he obtained the call records

of the mobile number used by PW5 as also the call records of

the mobile number used by the accused and it was found that

the accused had contacted the wife of the deceased on the

night of 16.01.2011.

16. PW23 was investigating officer who took over

investigation from PW22. PW23 formally proved Ext.P30 report

of the Forensic Science Laboratory. Ext.P30 report has two

parts of which one part is the report of the Serology Division of

the Laboratory and the other part is the report of the Biology

Division of the Laboratory. Items 1 to 9 in the report of the

Serology Division are the objects collected by PW20 from the

house from where the body of the deceased was found. Among

them, items 2, 4, 5 and 9 are soil, cement plastering material,

wooden powder scraped out from the door of the house and

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plaster powder scraped out from the inside wall of the house,

respectively. Item 10 in the said report is the partially burnt

remnants of paper and clothes and item 11 therein is the ashes

recovered based on information furnished by the accused from

the compound of Kuttappan near his house. It is stated in the

report that the stain in items 2, 4, 5, 9 and 10 are of human

blood and the stain in item 11 is that of blood, the origin of

which could not be detected. Items 13 and 15 in the said

report are MO3 wooden log and MO5 boulder and it is stated in

the report that the stain in those articles are also of blood, the

origin of which could not be detected. Item 1 in the report of

the Biology Division is the sample hair collected by PW20 and

item 16(c) referred to therein is the hair samples of the

accused collected by PW19, the doctor attached to Medical

College, Thiruvananthapuram. The report reveals that the hairs

in item 1 is human scalp hair which is similar to the sample

scalp hairs in item 16 (c).

17. PW19 is the doctor who conducted the

postmortem examination on the body of the deceased. Ext.P17

is the postmortem certificate. The ante-mortem injuries

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deposed to have been noted by PW19 on the body of the

deceased were the following:

"1. Lacerated wound 18 x 11 cm, exposing the cranial cavity on the right side of back of head and adjoining part of top of head. Vault of skull underneath was fractured and fragmented with a bony deficit 11x8 cm involving the parieto- occipital bones. Base of skull was fractured and fragmented involving the right side of posterior and middle cranial fossae. Dura was torn irregularly. Major portion of brain matter was missing, the remaining portion was liquified. Live maggots seen inside the cranial cavity.

2. Lacerated wound 8 x 5 cm, bone deep in the middle of top of head 11 cm above the root of nose.

3. Lacerated wound 6 x 4 cm bone deep on the left side of top of head 6 cm above the ear lobe.

Skull bone underneath the injuries no. (2) and (3) showed fracture separation involving the sagittal suture and left side of coronal suture. "

The opinion of PW19 as to the cause of death was that the

death occurred due to blunt injuries sustained to the head. It

was deposed by PW19 that the injuries aforesaid are sufficient

in the ordinary course of nature to cause death; that Injuries 2

and 3 could be caused with MO3 and MO4 wooden logs and

that Injury 1 could be caused with MO5 boulder. In cross-

examination, PW19 denied the suggestion made to him that

injuries 2 and 3 noted on the body of the deceased could be

caused on a hit against wooden logs which are moved in the

sawmill using crane. PW19 further clarified that forceful blow

with any blunt object can cause the said injuries. Similarly,

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PW19 denied the suggestion made to him that injury 1 could

be caused on account of a fall by hitting against a hard object.

PW19 clarified that it will not be caused in a simple fall.

18. It was also deposed by PW19 that on

22.01.2011, he examined the accused and issued Ext.P18

certificate and at the time of that examination, he noticed the

following injuries on the body of the accused:

"1. Abrasion 4.5 x 0.2 cm horizontally placed on the left side of neck with its inner end 4.5 cm outer to midline and 5 cm above the collar bone.

2. Abrasion 2 x 0.2 cm on the left side of front of neck, horizontally placed, 1 cm above and parallel to the inner aspect of the above injury No.1.

3. Abrasion 0.5 x 0.2cm, horizontally placed, on the left side of neck 1 cm outer to midline and 4 cm above the collar bone.

4. Multiple small abrasions over an area 7.5 x 3 cm (ranging in size from 0.5 x 0.2 cm to 2.2 x 0.2cm) on the left side of neck 2 cm below the root of ear.

5. Abrasion 1.5 x 0.2 cm, obliquely placed on the right side of neck, with its upper back end 4.5 cm below the root of ear.

6. Abrasion 1 x 0.2 cm on the right side of neck, obliquely placed, 3 cm below and parallel to injury No.5.

7. Contused abrasion 6.5 x 1.5 cm, on the left side of back of trunk 8.5 cm outer to midline and 13 cm below the top of shoulder.

8. Contused abrasion 12 x 9 cm on the right side back of trunk, touching the midline and 18 cm below the root of neck."

It was also deposed by PW19 that the history of the injuries

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was stated to him as follows;

"on the night of 16/1/11, he had a scuffle with one Suresh and sustained finger nail scratches on the neck. He was taken to police custody on 21/01/11 and sustained injuries on the back of the trunk due to stamping with boot of the police."

It was opined by PW19 that the injuries noted on the body of

the accused could be caused as alleged. It was also deposed

by PW19 in his evidence that he took the samples of the scalp

hair and finger nail clippings of the accused and handed over

the same to the police in a sealed cover as requested. In cross-

examination, PW19 denied the suggestion made to him that

injuries 1 to 6 noted on the body of the accused can be caused

by police manhandling.

19. It is based on the evidence discussed in the

preceding paragraphs that the Court of Session came to the

conclusion that it was the accused who committed murder of

the deceased and concealed his dead body in the septic tank

from where the same was found. As noted, the question is

whether the circumstances proved in the case would establish

the guilt of the accused beyond reasonable doubt.

20. It has come out in evidence that PW1 had not

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disclosed in the statement given to the police that he saw the

deceased leaving his house in the company of the accused.

Even though a doubt is cast on that aspect of the evidence of

PW1 on account of the said omission, we are of the view that it

is not necessary to delve deep into that issue since PW6, the

wife of PW1 also gave evidence on similar lines and the

accused has no case that PW6 had not made such a statement

to the police. Coming to the evidence tendered by PW5, the

wife of the deceased, the circumstances brought out in her

evidence would establish that she was in some sort of an

extra-marital relationship with the accused. Likewise from the

evidence tendered by PW8, the daughter of Nirmala and PW15,

the Secretary of the Grama Panchayat, it can certainly be

inferred that the accused was residing in the house of Nirmala

from where the body of the deceased was found. We take this

view also for the reason that even though it was stated by the

accused when questioned under Section 313 of the Code that

he was not residing in that house, in the absence of any case

for the accused that he was residing somewhere else, it can be

inferred that the accused was very much residing in that house

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from where the body of the deceased was found. As noted,

PW19, the doctor who examined the accused deposed that the

accused informed him when examined that on the night of

16.01.2011, the accused had a scuffle with one Suresh and the

injuries on the neck of the accused were the nail scratches of

that person. Under normal circumstances, we would not have

accepted the said evidence, for, the accused was then under

the custody of the police. But, as noticed, in the same breath,

it was stated to PW19 by the accused that the police stamped

him on the back of his trunk with boots. If the accused could

make such a statement to PW19, the earlier part of the

statement by the accused that "he had a scuffle with one

Suresh aged about 40 years and sustained finger nail

scratches on the neck" cannot be taken as one made

involuntarily at the instance of the police. Needless to say, the

evidence tendered by PW19 as regards the cause of the injury

suffered by the accused as disclosed to him can be accepted

as one disclosed to him by the accused on his own volition.

21. Thus, it could be seen that the following

circumstances are established in the case-:

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(i) that the accused and the deceased were friends and that the accused used to visit the house of the deceased frequently;

(ii) that the accused and deceased used to consume liquor together and were in the habit of picking up quarrels with each other after consuming liquor;

(iii) that the wife of the deceased was maintaining some sort of extra-marital relationship with the accused;

(iv) that PW6 heard the noise of a quarrel from the house of the deceased at about 9.00 p.m. on 16.01.2011 and also saw the deceased leaving the house in the company of the accused;

(v) that no one saw the deceased alive after PW6 saw the deceased leaving his house in the company of the accused;

(vi) that the accused informed PW19 that finger nail scratches found on his body were caused on the night of 16.01.2011 by one Suresh with whom he had a scuffle on that day;

(vii) that the body of the deceased was found in the septic tank attached to the house where the accused was residing and he had no explanation as to how the body of the deceased happened to be there;

(viii) that the death of Suresh occurred due to blunt injuries sustained to his head;

(ix) that Injuries 2 and 3 noted by PW19 on the body of the deceased were injuries that could be caused by MO3 and MO4 wooden logs recovered based on

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information furnished by the accused, that too, from the house where the accused was residing;

(x) that Injury 1 noted by PW19 on the body of the deceased was an injury that could be caused by MO5 boulder recovered based on information furnished by the accused, that too, from the house where the accused was residing;

(xi) that MO3 wooden log and MO5 boulder recovered based on information furnished by the accused, contained blood and the accused has not offered any explanation as to how blood appeared on those material objects;

(xii) that the stains found on the soil and cement plastering material collected from the house of the accused as also in the wooden powder scraped out from the door of the house and plaster powder scraped out from the inside wall of the house were found to be that of human blood and the accused has not offered any explanation as to how human blood appeared on those materials; and

(xiii) that the stains found on the remnants of clothes and paper recovered on the basis of information furnished by the accused was that of human blood and the accused has not offered any explanation as to how human blood appeared on those materials.

It is now trite that in a case of circumstantial evidence, there

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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. The

circumstances aforesaid, according to us, would satisfy the

said principle, for the same would not only form a chain so

complete without leaving any reasonable ground for the

conclusion consistent with the innocence of the accused, but

also show that in all human probability, the death of the victim

was caused by the accused.