[Cites 30, Cited by 0]
Kerala High Court
Sheeja vs State Of Kerala on 16 December, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA,
1947
CRL.A NO. 1715 OF 2025
CRIME NO.578/2017 OF KOTTAYI POLICE STATION, PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED 21.05.2024 IN SC NO.18
OF 2018 OF SESSIONS COURT, PALAKKAD
APPELLANT/1ST ACCUSED:
SHADANANDHAN, AGED 61 YEARS
S/O VISWAMBARAN, CHOPPULLIVEEDU MANNAM POST,
VADAKKAN PARAVOOR, ERNAKULAM, PIN - 683522
BY ADVS.
SRI.M.P.MADHAVANKUTTY
SMT.DIVYADEVI V.G.
SMT.ANGEL GYLES LIKE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BYPUBIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031
BY SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
05.12.2025, ALONG WITH CRL.A.1215/2024, THE COURT ON
16.12.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.1715/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA,
1947
CRL.A NO. 1215 OF 2024
CRIME NO.578/2017 OF KOTTAYI POLICE STATION, PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED 21.05.2024 IN SC
NO.18 OF 2018 OF SESSIONS COURT, PALAKKAD
APPELLANT/2ND ACCUSED:
SHEEJA, AGED 43 YEARS, W/O PRADEEP KUMAR,
KUNNINMEL VEEDU, POOLAKKALPARAMBU, THOLANUR,
PALAKKAD, PIN - 678722
BY ADVS. SRI.K.ANAND
SHRI.BENNY ANTONY PAREL
SRI.N.RAJESH (PALAKKAD)
SHRI.AMEER SALIM
SRI.MATHEWS RAJU
SMT.GOWRI MENON
SHRI.R.K.JAYALAKSHMI
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC
PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
BY SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
05.12.2025, ALONG WITH CRL.A.1715/2025, THE COURT ON
16.12.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.1715/2025
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C.R.
JUDGMENT
Jobin Sebastian, J.
Crl.Appeal No.1715/2025 and Crl.Appeal No.1215/2024
have been filed by the first and second accused respectively, in
Sessions Case No. 18/2018 on the file of the Sessions Court,
Palakkad, challenging the judgment of conviction and order of
sentence passed against them, for various offences under the
Indian Penal Code in the said case.
2. In the above-said case, both the accused were found
guilty of offences punishable under Sections 120-B, 380, 461, and
201 r/w 34 of the IPC. Apart from the above, the first accused was
found guilty of offences punishable under Sections 302 and 449 of
the IPC.
3. The prosecution case in brief is as follows:-
Sri. Swaminathan and Smt. Premakumari, the deceased
in this case, were husband and wife residing in a house situated at
Poolakkaparambu. Sri. Swaminathan was an ex-serviceman, and
their elder son was employed in the military and was therefore
away from home. During this period, the second accused, the wife
of their elder son, developed an illicit relationship with the first
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accused. Fearing that the aged in-laws would discover her
relationship with the first accused and reveal it to her husband,
and with an oblique motive to appoint the first accused as a
karyasthan in her matrimonial home, the second accused hatched
a criminal conspiracy with the first accused to murder the in-laws.
In pursuance of this conspiracy and as planned earlier, the first
accused waited outside the house of Sri. Swaminathan on
13.09.2017 between 12:30 a.m. and 4:00 a.m., while the second
accused communicated information about the movements of
Swaminathan and his wife through the windows of the house.
Thereafter, the second accused stealthily opened the kitchen door
and facilitated the first accused's entry into the house. The first
accused then murdered Swaminathan and Premakumari by
stabbing them with a chopper and hitting them with a hammer.
The first accused also committed theft of Rs. 23,000/- and gold
ornaments kept in a jewel box. Both accused then attempted to
destroy evidence by sprinkling chilli powder inside the house and
on the dead bodies, and by disposing of the weapons and other
related objects in a well. With the intent to derail the investigation,
the second accused handed over her ornaments to the first
accused and deliberately scattered the dress materials kept in the
almirah inside the house, thereby creating a scene of disorder.
Accordingly, the accused are alleged to have committed offences
punishable under Sections 120-B, 109, 449, 302, 380, 461, and 201
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read with Section 34 of the Indian Penal Code.
4. On completion of the investigation of this case, the
final report was submitted before the Judicial First Class
Magistrate Court-I, Palakkad. Being satisfied that the case was one
triable exclusively by the Court of Session, the learned Magistrate,
after complying with all the necessary formalities, committed the
case to the Court of Session, Palakkad, under Section 209 of the
Criminal Procedure Code. The learned Sessions Judge, after taking
cognizance of the offences, issued process to both the accused.
The learned Sessions Judge, after hearing both sides under section
227 of Cr.P.C. and upon perusal of the records, framed a written
charge against the accused for offences punishable under Sections
120-B, 109, 449, 380, 461, 302 and 201 r/w 34 of the Indian Penal
Code. When the charge was read over and explained to the
accused, both of them pleaded not guilty and claimed to be tried.
5. During the trial, from the side of the prosecution, PW1
to PW59 were examined and marked Exts.P1 to P102. The
contradictions in the 161 statement of the prosecution witnesses
brought out by the defence were marked as Exts.D1 to D8. MO1 to
MO73 were exhibited and identified. After the completion of the
prosecution evidence, the accused were questioned under Section
313 of Cr.P.C., during which both of them denied all the
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incriminating materials brought out in evidence against them.
Thereafter, both sides were heard under Section 232 of Cr.P.C.,
and as it was not a fit case to acquit under the said provision, the
accused were directed to enter on their defence and to adduce any
evidence that they may have in support thereof. From the side of
the accused, DW1 to DW8 were examined and marked Exts.D9 to
D15. Thereafter, both sides were heard in detail, and finally, the
learned Sessions Judge found both the accused guilty of the
offences punishable under Sections 120-B r/w 302, 380, 461, and
201 r/w 34 of the IPC and convicted them thereunder. In addition,
the first accused was found guilty of the offences punishable under
Sections 449 and 302 of the IPC, and convicted for the said
offences also.
6. For offence punishable under section 302 IPC, the first
accused was sentenced to undergo imprisonment for life and to
pay a fine of Rs.1,00,000/- and in default of payment of fine, he was
ordered to undergo rigorous imprisonment for one year. Likewise,
for offence punishable under Section 449 of the IPC, the accused
was sentenced to undergo rigorous imprisonment for ten years and
to pay a fine of Rs.1,00,000/-, with a default clause to undergo
rigorous imprisonment for one year. Both the accused were
sentenced to undergo imprisonment for life and to pay a fine of
Rs.1,00,000/- each with a default clause to undergo rigorous
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imprisonment for one year for offence punishable under Section
120-B r/w 302 IPC. For offence punishable under Section 380 r/w
34 IPC, both the accused were sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.10,000/- each,
with a default clause to undergo rigorous imprisonment for six
months. For offence punishable under Section 461 r/w 34 IPC,
both the accused were sentenced to undergo rigorous
imprisonment for one year. Similarly, both the accused were
sentenced to undergo rigorous imprisonment for five years and to
pay a fine of Rs.25,000/- each, with a default clause to undergo
rigorous imprisonment for three months for the offence punishable
under Section 201 r/w 34 IPC. The substantive sentences were
ordered to be run concurrently. Challenging the findings of guilt,
the conviction, and the order of sentence passed by the trial court,
both accused have preferred these appeals.
7. We heard Sri. M.P. Madhavankutty, and
Sri. N. Rajesh, the learned counsel, appeared for the appellants
and Smt. Sheeba Thomas, the learned Public Prosecutor, appeared
for the respondent.
8. As per the prosecution, Sri Swaminathan and Smt
Premakumari, who were husband and wife, were brutally
murdered inside their house situated at Poolakkaparambu
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sometime between 12:30 a.m. and 4:30 a.m. on 13.09.2017. The
incident came to light when a milk vendor, who used to supply milk
daily to the deceased, arrived at their house in the early morning
of 13.09.2017. When examined as PW6, the said milk vendor
deposed that the deceased were her neighbours and that she
routinely supplied milk to their house. She stated that on
13.09.2017, between 6:00 a.m. and 6:30 a.m., when she reached
the house of Swaminathan to deliver milk, she did not find the milk
vessel in its usual place. She then noticed that the vessel was lying
in the courtyard. After picking up the vessel and proceeding
towards the kitchen area, she found Sheeja (A2) lying on the
doorstep of the kitchen. When she called out to Sheeja, she heard a
groaning sound. PW6 further stated that she immediately rushed
to the house of Chandran (PW3) and informed him of the incident.
Thereafter, she went to the house of one Kumari and informed her
as well, and then hurried to her own house to inform her husband.
She also deposed that, as a matter of routine, when she visited the
house of Swaminathan in the morning to deliver milk, no one
would usually be awake at that time.
9. The law was set in motion in this case on the strength
of the statement given by the brother of the deceased,
Swaminathan. When he was examined as PW3, he deposed that on
the day of the incident of this case, at around 6:30 a.m., a milk
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vendor named Rajalakshmi (PW6) came to his house and informed
him that Sheeja (A2), the daughter-in-law of Swaminathan, was
lying on the doorstep of the kitchen of the house of the deceased.
PW3 further told that though she called Sheeja, she did not
respond. He immediately rushed to his brother's house, located
about 750 meters away. Upon arrival, he found A2 lying face down
on the doorstep on the northern side of the house, unresponsive to
his calls. He raised an alarm, which drew his relatives and
neighbors to the scene. Sheeja's hands were found tied, and her
mouth was gagged. He attempted to loosen the knots on her
hands, which were found to be loose, and those who gathered then
took Sheeja to a hospital. He rushed inside the house and
discovered his brother lying dead in the drawing room with his
intestines protruding from his stomach. Frightened by the sight, he
ran out. Although he and the others attempted to open the front
door of the house, it was locked from the inside, and their forceful
attempt failed. Consequently, they broke the window glass of his
brother's bedroom and saw his brother's wife lying dead on the
bed, in a supine position. The police were immediately alerted, and
shortly thereafter, they arrived and recorded his statement, which
is Ext.P3.
10. During the chief examination, PW3 further deposed
that his brother was an ex-serviceman. His brother's elder son,
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Pradeep Kumar (PW57), was serving in the Army, and the second
accused is Pradeep Kumar's wife. A2 has a son named Rohit, aged
18 years. During the period of occurrence in this case, Rohit was
residing at A2's house at Thenur and was studying in Kendriya
Vidyalaya, Ottapalam. A2 was also residing in the said house at
Thenur with her son, for his convenience in attending school.
However, A2 occasionally stayed at the house of Pradeep Kumar.
Earlier, on 31.08.2017, someone had attempted to electrocute
PW3's brother, and with respect to that incident, his brother had
lodged a complaint before the police. After the said incident, A2
used to stay with her in-laws' house during the night.
11. Undisputedly, this is a case in which there is no
direct evidence to prove the occurrence. The prosecution mainly
relies on circumstantial evidence to bring home the guilt of both
accused, in addition to the scientific and recovery evidence
adduced. Before delving into a detailed discussion of the
circumstances relied upon by the prosecution to establish the guilt
of the accused, it is necessary to first consider whether the deaths
of Swaminathan and his wife, Premakumari, were homicidal in
nature. The evidence of the witnesses who gathered at the crime
scene, as well as the inquest report prepared, clearly suggests that
the deaths were homicidal. Nevertheless, the primary evidence
that requires consideration in determining the nature and cause of
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death is the testimony of the doctors who conducted the autopsy
examinations of the deceased.
12. The doctors who conducted the autopsies of the
deceased Swaminathan and Premakumari were examined as PW51
and PW37, respectively. During the examination before the Court,
PW37 deposed that on 14.09.2017 at 10:05 a.m., while working as
a Medical Officer in the Department of Forensic Medicine,
Government Medical College, Thrissur, he had conducted the
autopsy on the body of the deceased Premakumari. The post-
mortem certificate issued by him was marked as Ext.P32.
Referring to Ext.P32, PW37 stated that he had noted four
antemortem injuries during the post-mortem examination. He
further deposed that the deceased had died due to the incised
penetrating wounds sustained on the chest and abdomen (injury
Nos. 1 and 2). PW37 also opined that injuries Nos. 1 and 2 were
sufficient in the ordinary course of nature to cause death. When
PW37 was confronted with a chopper (MO32), after examining it,
he stated that the injuries noted by him could have been caused by
a weapon like MO32.
13. When PW51, the doctor who conducted the autopsy
of deceased Swaminathan, was examined, he deposed that it was
on 14.09.2017 that he conducted the post-mortem examination.
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According to him, altogether 20 ante-mortem injuries were noted
in the post-mortem examination. The post-mortem certificate
issued by him is marked as Ext.P46. Referring to Ext.P46 post-
mortem certificate, PW51 opined that the death was due to the
injuries to the head, chest and abdomen (injury nos.1, 16, 17 and
18) and those injuries are sufficient in the ordinary cause of nature
to cause death. According to PW51, the incised wounds noted in
the post-mortem examination can be produced with a weapon like
MO32 chopper. According to PW51, injury nos.3 to 14 could be
defensive wounds. During re-examination, when PW51 was
confronted with MO1 hammer, after verifying the same, he
deposed that injury no.1 (Contusion of full thickness of scalp 6x6
cm over the left temporal region with contusion of full thickness of
left temporalis muscle and fissured fracture seen extending from
left temporal bone into the left middle cranial fossa) can be
inflicted by using a weapon like MO1.
14. A conjoint reading of the above-discussed medical
evidence and the post-mortem certificates clearly indicates that
the deaths of Swaminathan and his wife, Premakumari, were
certainly and undoubtedly homicidal in nature.
15. As already stated, this is a case in which there is no
direct evidence to prove the occurrence; instead, the prosecution
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relies on circumstantial evidence to establish the guilt of the
accused. Before delving into the details of the circumstantial
evidence presented in this case, it is essential to examine the
principles and guidelines governing the evaluation of such
evidence.
16. In Sarad Birdhichand Sarda v. State of Maharashtra
[AIR 1984 SC 1622], the Apex Court discussed the nature,
character, and essential proof required in a criminal case which
rests on circumstantial evidence alone and held as under:
(i) The circumstances from which the conclusion of
guilt is to be drawn should be fully established;
(ii) 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;
(iii) The circumstances should be of a conclusive
nature and tendency;
(iv) They should exclude every possible hypothesis
except the one to be proved; and
(v) 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
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done by the accused.
17. A similar view has been reiterated by the Apex Court
in Bodh Raj alias Bodha v. State of Jammu and Kashmir [AIR 2002
SC 3164], State of Uttarpradesh v. Satish [AIR 2005 SC 1000], and
Subramaniam v. State of Tamilnadu [(2009) 14 SCC 415].
18. In cases built upon circumstantial evidence, a
complete and unbroken chain of evidence is a requisite. This chain
must inevitably lead to the conclusion that the accused, and none
other than, could have committed the offence. In other words, to
sustain a conviction, circumstantial evidence must be
comprehensive and incapable of explanation of any hypothesis
other than the guilt of the accused. Thus, such evidence must not
only be consistent with the accused's guilt but also inconsistent
with his innocence.
19. In the present case, the circumstances relied upon
by the prosecution to prove the guilt of the accused are mainly:
i) that the first accused was present near the place of occurrence
before the incident in this case;
ii) that the first accused came to a tea shop situated near the place
of occurrence at 5:00 a.m. on 13.09.2017, i.e., immediately after
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the incident;
iii) the recovery of stolen gold ornaments pursuant to the
disclosure statement made by the first accused;
iv) the recovery of the MO1 hammer, one of the weapons used in
the offence, and other incriminating materials from inside a well,
based on the disclosure statement made by the first accused;
v) the recovery of the MO32 chopper and the blood-stained clothes
of the first accused from near an electric post situated about 100
metres from the place of occurrence, pursuant to the disclosure
made by the first accused;
vi) the recovery of cash, the booty of the offence, from the body of
the first accused at the time of his arrest;
vii) the conduct of the first accused in attempting to abscond after
the commission of the offence;
viii) the conduct of the first accused in taking the MO32 chopper,
one of the weapons of the offence, to have it sharpened, thereby
indicating preparation for the alleged act;
ix) that the chance fingerprint lifted from a plastic cover found at
the crime scene was found to match the fingerprint of the first
accused during forensic examination;
x) that the first accused maintained an illicit relationship with the
second accused, the daughter-in-law of the deceased, and that both
of them had a strong motive to commit the murders of
Swaminathan and Premakumari.
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20. Now, the crucial question that requires consideration
is whether the evidence adduced by the prosecution to prove the
above-mentioned circumstances is sufficient to establish them fully
and convincingly. For that purpose, it is necessary to examine each
circumstance separately and assess whether the evidence relied
upon by the prosecution is adequate. Additionally, the significance
and impact of each circumstance in proving the guilt of the
accused must also be evaluated.
21. As already stated, one of the main circumstances
relied upon by the prosecution is the alleged presence of the first
accused near the place of occurrence on the previous day of the
incident. The prosecution relies on the oral testimony of PW32 to
prove this fact. During examination before the Court, PW32
deposed that during the relevant period, he was working as a
cleaner in a bus named Usha, which operated on the Valayar-
Tholannoor route. The bus trip usually started at 4:00 a.m. and
ended between 7:45 and 8:00 p.m. at Tholannoor. PW32
unequivocally deposed that on the previous day of the alleged
incident, the first accused boarded the bus from the Palakkad
Municipal Bus Stand and alighted at Tholannoor. At that time, the
first accused was carrying a black bag in his hand. According to
PW32, after alighting from the bus, he saw the first accused
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walking towards Poolakkaparambu. PW32 identified MO31 as the
black bag he had seen in the hands of the first accused. He further
stated that the bus was usually parked at night in the premises of a
house situated near the house of the deceased in this case.
22. The above-discussed evidence of PW32 clearly
indicates that on the night of 12.09.2017, the first accused reached
Tholannoor by the bus in which PW32 was employed as a cleaner.
The evidence of PW31, another prosecution witness, further
establishes that Tholannoor is situated approximately 1½ km away
from Poolakkaparambu, the location where the incident in this
case occurred. PW31's testimony regarding this proximity
remained unchallenged during cross-examination. PW32's
evidence that the first accused, after alighting from the bus,
walked towards Poolakkaparambu Bhagom is also of significant
importance in this case. While considering the reliability of PW32's
testimony, it is noteworthy that the first accused does not contend
that PW32 had any animosity or grudge against him that could
have motivated him to falsely implicate the first accused in a case
of this nature. Therefore, there is no reason to disbelieve the
evidence of PW32.
23. Another crucial circumstance relied upon by the
prosecution is that on 13.09.2017, at 5:00 a.m., i.e., immediately
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after the incident, the first accused visited a tea shop situated near
the place of occurrence. To prove this circumstance, the
prosecution relies on the testimony of PW29. PW29 deposed that
he runs a tea shop at a place called Nechur, which he usually
opens at 5:00 a.m. According to him, he came to know about the
incident in which Swaminathan and Premakumari died from
television news. He further deposed that on the date of the
incident, at around 5:00 a.m., the first accused came to his tea
shop and had tea there. Several local people were also present at
the shop at that time. After having tea, the first accused inquired
about the bus timings to Kozhikode from one Rajan, who was
present in the shop. Rajan informed the first accused that if he
boarded the CMS bus that had arrived by that time, he could alight
at Athipotta and from there catch another bus to Kozhikode. PW29
identified the first accused as the person who had visited his tea
shop. It is now relevant to consider the evidence of PW30, the
conductor of the CMS bus in which the accused travelled from
Nechur. PW30 deposed that on 13.09.2017, when the bus reached
Nechur, the first accused boarded the bus and purchased a ticket
to Athipotta. According to PW30, after boarding the bus, the first
accused inquired about the bus timings to Ottapalam Bhagom.
When the bus reached Athipotta, the first accused alighted. PW30
identified the first accused before the Court.
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24. A conjoint reading of the evidence of PW29 and
PW30 reveals that immediately after the incident, the first accused
visited the tea shop of PW29, had tea there, and subsequently
boarded the bus in which PW30 was working as a conductor and
alighted at Athipotta. Notably, PW30 deposed that the distance
from Tholannoor to Nechur is only 3 km. Similarly, PW31 stated
that the distance from Tholannoor to Poolakkaparambu is 1½ km.
From Ext.P22, the scene plan, it is evident that Poolakkaparambu
is located between Nechur and Tholannoor. On a careful reading of
the evidence, it is established that Nechur is situated only about
1½ km from Poolakkaparambu, the alleged place of occurrence in
this case. Therefore, the fact that the first accused visited a tea
shop, situated only 1½ km from the place of occurrence, in the
early morning at 5:00 a.m., raises serious suspicion regarding his
involvement in the commission of the offence. Furthermore,
neither PW29, the tea shop owner, nor PW30, the bus conductor,
had any apparent reason to give false testimony before the Court.
Notably, although the said witnesses were subjected to rigorous
cross-examination, they withstood the same successfully and their
evidence is free from contradictions and omissions, even of a minor
nature.
25. However, the evidence of PW29 and PW30 was
primarily challenged by the appellant on the ground that the
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identification of the first accused made by these witnesses before
the Court cannot be relied upon, as it was not corroborated by an
earlier test identification parade. According to the learned counsel
for the appellant, since both witnesses were not previously
acquainted with the first accused, it was imperative for the
investigating officer to conduct a test identification parade during
the course of the investigation. The counsel contended that, as the
witnesses had no prior familiarity with the accused, their first-time
identification of him before the Court is highly doubtful.
26. While considering this contention, it is pertinent to
note that the substantive evidence regarding the identification of
an accused is the identification made before the Court. If the
identification made before the Court is convincing and reliable,
there is no necessity to seek corroboration from an earlier test
identification parade. Whether a court identification must
invariably be corroborated by an earlier parade depends on the
facts and circumstances of each case.
27. If the witnesses had a sufficient opportunity to
observe the accused during the relevant period, there is no reason
to doubt their subsequent identification of him before the Court,
even in the absence of an earlier test identification parade. There
is no rigid rule that the first time identification of an accused by
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witnesses who had no prior acquaintance with him must be
corroborated by an earlier identification parade.
28. In the present case, PW29 specifically deposed that
the first accused came to his tea shop in Nechur in the early
morning and had tea there, which he naturally would have paid
for. PW29 further stated that he saw the first accused inquiring
about bus timings from other customers present in the shop. This
indicates that PW29 had sufficient opportunity to observe the first
accused. Likewise, PW30, the conductor of the bus, deposed that
on 13.09.2017, when the bus reached Nechur, the first accused
entered and took a ticket to Athipotta. PW30 further stated that
the first accused inquired about bus timings to Ottapalam Bhagom
and alighted at Athipotta. This evidence shows that PW30 also had
sufficient opportunity to observe the first accused. This is not a
case where PW29 and PW30 saw the first accused only
momentarily or for a fleeting instant. On the contrary, they had
ample opportunity to observe his face and even interact with him
in the course of their duties. Therefore, there is no reason to doubt
the identification of the first accused made by these witnesses
before the Court, even though it was not corroborated by an
earlier test identification parade.
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29. The presence of the first accused near the place of
occurrence, both prior to and immediately after the commission of
the offence, assumes significant importance, particularly since he
is not a resident of the area and had no apparent reason to be
there. The fact that the first accused was found near the place of
occurrence, despite residing in a rented house situated 25 km
away, raises serious suspicion regarding his involvement in the
crime. It is indeed noteworthy that he came to Nechur, a place
situated far from his residence, in the early morning to have tea.
The absence of any explanation from the first accused for his
presence near the place of occurrence further strengthens the
inference of his guilt.
30. Another material circumstance relied upon by the
prosecution to establish the guilt of the first accused is the
recovery of gold ornaments, the weapons used in the offence, and
other incriminating materials, which were allegedly effected on the
strength of a disclosure statement made by the first accused.
Undisputedly, under Section 27 of the Indian Evidence Act, if a fact
is discovered as a consequence of information received from a
person accused of an offence while in police custody, so much of
that information as distinctly leads to the discovery of the fact is
admissible in evidence against him. Such evidence is valuable and
can be used to establish the accused's involvement in the offence.
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The provision under Section 27 is an exception to the general rule
that confessions made to a police officer are inadmissible.
Significantly, the term "fact discovered" under Section 27 is not
limited merely to the recovery of a physical object; it also
encompasses the place from which the object is recovered and the
accused's knowledge of its location. In other words, the discovered
fact includes the object, its location, and the accused's awareness
of it.
31. The rationale behind the partial lifting of the
prohibition contained in sections 25 and 26 of the Indian Evidence
Act in respect of the confessions made to a Police officer is that the
fact discovered affords the guarantee of truth of that portion of the
statement. The admissibility of such a part of the confession is
based on the doctrine of confirmation by subsequent events. This
doctrine rests on the principle that if any fact is discovered on the
strength of any information obtained from an accused, such
discovery itself lends assurance to the truthfulness of that part of
the information which distinctly relates to the discovered fact. In
other words, if an accused in his confession discloses a fact, which
is not in the knowledge of police earlier or from a prior source, but
subsequently gets confirmed through discovery, so much of such
information as relates distinctly to the fact thereby discovered,
may be proved against the accused and can therefore be safely
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allowed to be admitted in evidence as an incriminating
circumstance against the accused. The information given by the
accused, which was not known to the police earlier, exhibits the
knowledge or mental awareness of the accused as to its existence.
However, it is only when the materials on record clearly establish
that the discovery was effected solely on the strength of the
disclosure statement made by the accused, that the said
statement, to the extent permissible under Section 27, can be used
against him.
32. Keeping the above in mind, a consideration of the
evidence of PW58, the investigating officer, reveals that the first
accused was taken into custody in connection with this case from
near a bus stop at Thenur in the early morning of 14.09.2017. His
arrest was recorded on the same day at 05:00 p.m. According to
PW58, during interrogation, the first accused made a disclosure
statement, and on the strength of the said statement given by the
first accused and as led by the first accused, he, along with the
police party, reached the rented house of the first accused located
at Thenur. Thereafter, the first accused took a key from the top of
the wall of the said house and opened the door. The first accused
then entered into the said house and took four gold bangles, one
gold chain with a locket, and another gold chain from the drawer
of an iron table found inside the said house and handed over the
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same to the Investigating Officer. PW58 identified those gold
ornaments as the gold ornaments so handed over to him by the
first accused, which were marked as MO38, MO39 and MO40
series (three in number). According to PW58, the said gold
ornaments were seized by him after describing in Ext.P18 seizure
mahazar. The relevant portion of the confession statement
recorded in Ext.P18 seizure mahazar and proved through PW58
was marked as Ext.P18(a).
33. PW19, an independent witness to the seizure, also
supported the prosecution's case by deposing that he saw the first
accused taking the gold ornaments from the drawer of the iron
table and handing them over to the police. PW19 further stated
that the house from which the recovery was effected originally
belonged to one Raman and that the first accused was residing
there on rent during the relevant period. According to PW19, he
was previously acquainted with the first accused, as he resided in
a house situated only 20 meters away from his house. Notably,
when the daughter of the deceased was examined as PW20, she
identified the chain with a locket (MO38) and three bangles
(MO40, 40(a), 40(b)) as belonging to her deceased mother. She
also identified the remaining chain (MO39) and the bangle
(MO40(c)) as belonging to the second accused.
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34. It is obvious that the recovery of the stolen gold
ornaments at the instance of the first accused made pursuant to
the disclosure statement under Section 27 of the Indian Evidence
Act is a highly incriminating circumstance against the first
accused. The fact that the stolen articles were recovered from a
place known only to the first accused lends substantial assurance
to the truth of the disclosure and provides a strong link in the
chain of circumstantial evidence.
35. Similarly, the evidence establishes that, on the
strength of another disclosure statement given by the first
accused, on 14.09.2017, a hammer (MO1), alleged to be one of the
weapons used in the offence, along with other incriminating
materials, was recovered from inside a well located in the
compound of the deceased's house. Ext.P16 is the mahazar
documenting the recovery of the hammer, one lock and key, and a
CFL bulb. Ext.P16(a) is the relevant portion of the disclosure
statement made by the first accused and proved through PW58,
the investigating officer. PW16, the independent witness to the
recovery, corroborated the prosecution's case. Notably, PW20
identified the MO1 hammer as the hammer that her father used to
keep under his cot for safety. She also identified the lock and key
of the jewel box (MO2 and MO2(a)) as items usually kept by her
mother beneath the bed. Further, when confronted with the CFL
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bulb (MO3), PW20 deposed that it appeared to be the bulb
removed from a portion of the house near the well.
36. Another recovery relied upon by the prosecution to
establish the guilt of the first accused is the recovery of a black-
colored bag, which contained MO32, the chopper allegedly used in
the commission of the offence, along with other incriminating
materials, including the dress worn by the first accused at the time
of the offence. The evidence of PW58, the investigating officer,
reveals that this recovery was effected on the strength of a
disclosure statement made by the first accused. According to
PW58, pursuant to the disclosure statement and as guided by the
first accused, he, along with the police party, proceeded to
Poolakkaparambu, where the first accused retrieved a black-
colored bag from a bushy area near an electric post situated on the
margin of the Nechur-Tholannoor public road and handed it over
to PW58. The black bag produced by the first accused was marked
as MO31. Upon inspection of the bag, a chopper, a half-sleeve
shirt, one bermuda, one towel, two packets of chilli powder, and
two gloves (MO32, MO33, MO34, MO35, MO36 series, and MO37
series, respectively) were found. These items were recovered in
accordance with Ext.P17 mahazar. The relevant portion of the
disclosure statement made by the first accused, recorded in
Ext.P17 was proved through PW58 and marked as Ext.P17(a). At
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this juncture, it is pertinent to note that PW32, the cleaner of the
bus in which the first accused was present near the place of
occurrence prior to the commission of the offence, also identified
the aforementioned black bag (MO31) as the one held by the first
accused when he saw him.
37. The recovery of the MO1 hammer and the MO32
chopper, the alleged weapons used in the offence, based on the
disclosure statement given by the first accused, constitutes an
important link in the chain of circumstances establishing the
complicity of the first accused in the commission of the offence.
Notably, when the doctor who conducted the autopsy on the body
of Swaminathan was examined as PW51, he opined that injury
No.1, i.e., the head injury observed on the deceased, could have
been inflicted using a weapon such as the MO1 hammer. PW37,
the forensic surgeon who conducted the post-mortem examination
on the body of Premakumari, deposed that the incised wounds
noted during his examination could have been caused by a weapon
like MO32 chopper. Likewise, the evidence of PW52, the Assistant
Director of the Regional Forensic Science Laboratory, Thrissur,
shows that she examined the incriminating materials received in
connection with this case and prepared Ext.P47 report. Referring
to Ext.P47, PW52 deposed that when the MO1 hammer and MO32
chopper, shown as item Nos 11 and 12 in her report, were
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examined, blood was detected on both items. PW52 further
testified that the blood found on item No.12 was human in origin
and, upon grouping, was identified as group 'A', which
corresponds to the blood group of the deceased Swaminathan.
However, the origin of the blood on item No.11 (the hammer)
could not be determined due to the insufficient quantity of blood
present. Moreover, PW52 further deposed that when the shirt and
bermuda (MO33 and MO34), allegedly worn by the first accused,
shown as item Nos. 13(a) and 13(b) in Ext.P47 were subjected to
scientific examination, human blood belonging to group A was
detected on these items also.
38. Another circumstance relied upon by the prosecution
is that, one week prior to the incident in this case, the first accused
had strengthened and sharpened a chopper. To establish this, the
prosecution relies on the evidence of PW40 and PW42, both
smiths. PW40 deposed that in the year 2017, the first accused had
approached his shop with a chopper, requesting that a handle be
fitted to it. Accordingly, a handle was fixed to the chopper. Three
days later, the first accused returned to have the chopper
sharpened. However, PW40's colleague, Pramod (PW42), was not
present in the shop on that day, and hence he asked the first
accused to come on the following day. The first accused
accordingly returned, and again came on the next day and Pramod
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sharpened the chopper and handed it back to the first accused.
When the said Pramod was examined as PW42, he deposed that he
is a smith by profession and that his shop is situated at Parali,
beside the Palakkad-Guruvayoor public road. PW40 assisted him in
the shop. Two years prior to giving evidence in court, the first
accused had brought a chopper to their smithy, and a handle was
fitted to it as requested. After three or four days, the first accused
returned with the same chopper for sharpening. PW42 was not
present at that time, so PW40 received the chopper and handed it
over to him the following day. PW42 then sharpened the chopper
and returned it to the first accused. Both PW40 and PW42
identified MO32 as the chopper that had been brought by the first
accused for sharpening.
39. The prosecution's case that the first accused used
the MO32 chopper in the commission of the offence was
challenged by the learned counsel for the appellant on the ground
that, if the evidence of PW20 that MO32 was the chopper used by
her father is believed, it would be improbable that the same
chopper could have reached the hands of the first accused one
week prior to the incident in this case. In order to consider
whether this contention is sustainable, it is necessary to examine
the evidence of PW20. PW20 deposed that on one occasion prior to
the incident in this case, someone had attempted to electrocute
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her father by inserting an electric wire through the window with
the help of a stick. However, her father was fortunate to escape
and came out of the house with a chopper, which PW20 identified
as MO32. She further deposed that the chopper had been
purchased by her father recently. Admittedly, if PW20's evidence
in this regard were accepted, it would indeed raise a suspicion as
to how the chopper could have reached the hands of the first
accused, enabling him to take it to a smith for sharpening.
However, we are of the considered view that PW20's evidence on
this point cannot be relied upon. PW20 herself did not claim to
have been present in the house at the time of the attempted
electrocution. From the evidence on record, it is clear that several
years prior to the incident, she had been married and was residing
in her matrimonial home. Therefore, her statement that her father
came out of the house with MO32 following the attempted
electrocution cannot be accepted as credible, particularly since
PW20 does not have a case that during the said incident she was
present in her paternal house. That apart, there is no reason to
disbelieve the evidence of PW40 and PW42 that the first accused
had brought the MO32 chopper to their shop for strengthening and
sharpening. Further, as already noted, scientific evidence
establishes that MO32 contained human blood corresponding to
the blood group of the deceased Swaminathan. Accordingly, the
contention of the learned counsel for the appellant in this regard
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must fail. Moreover, the principle falsus in uno, falsus in omnibus
is not applicable in India. Therefore, merely because PW20's
evidence regarding the MO32 chopper is not credible, it is not
legally permissible to discard her entire testimony or to doubt her
identification of other MOs made before the court.
40. The evidence of PW58, the Investigating Officer,
further reveals that during the inspection conducted after the
arrest of the first accused, a purse containing currency notes of
various denominations totalling Rs.23,230/- was recovered. The
prosecution has a definite case that, out of the said amount,
Rs.20,000/- was the money robbed from the house of the deceased,
Swaminathan, which he had obtained by selling coconuts. To
establish this fact, the prosecution examined PW23, who, on
examination before the court, deposed that he is a coconut trader
and that two days prior to the incident, he had purchased 670
kilograms of coconuts from the deceased Swaminathan and had
paid him Rs.20,000/-. The recovery of this amount from the first
accused at the time of his arrest thus lends support to the
prosecution's case regarding the complicity of the first accused in
the commission of the offence.
41. Furthermore, from the evidence of PW58, it is
established that, apart from the said cash, the first accused was
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found in possession of his Aadhaar card, an ATM card in the name
of his wife, and four mobile phones with SIM cards and memory
card at the time of his arrest. Likewise, the evidence establishes
that the first accused was taken into custody from a bus stop near
Thenur, where he was residing on a rental basis. The evidence of
PW29 shows that immediately after the incident, the first accused
had made inquiries regarding the timings of buses to Kozhikode.
The fact that the first accused was found in possession of
important documents, including his Aadhaar card and ATM card,
as well as four mobile phones, at the time of his arrest from a bus
stop, indicates his intention to abscond. Further, the conduct of the
first accused in attempting to flee after the commission of the
alleged crime is relevant under Section 8 of the Indian Evidence
Act to prove his guilt.
42. The evidence of PW58 further reveals that, on
13.09.2017, he took over the investigation in this case and
conducted an inquest on the dead body of the deceased,
Swaminathan, in the presence of a Scientific Officer, a
photographer, and the relatives and neighbours of the deceased.
Ext.P1 is the inquest report prepared by him. According to PW58,
the Scientific Officer (PW4) had collected certain items and
handed them over to him. Similarly, the Scientific Officer deposed
that he had collected several items, including hairs found on the
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male deceased, and handed them over to the Investigating Officer.
The report of the examination of the crime scene prepared by PW4
is marked as Ext.P4. In Ext.P4, hair collected from the hands of the
male deceased is shown as Item No.5. The evidence of PW33, the
Scientific Officer, Biology Division, FSL, Thiruvananthapuram,
shows that upon comparison, the hairs in Item No.1, i.e., those
collected from the hands of the male body, were found to be
similar to Item No.2(a), the scalp hairs of the first accused sent for
comparison.
43. Another material relied upon by the prosecution to
establish the presence of A1 in the deceased's house is that a
chance print taken from a transparent plastic cover, which was
seized as per the scene mahazar, was found to correspond with the
fingerprint of the first accused. The evidence of the Investigating
Officer shows that, contemporaneous with the preparation of
Ext.P6 scene mahazar, he recovered the relevant material items
from the crime scene, including the MO26 plastic cover. PW9, the
photographer who accompanied the Investigating Officer during
the preparation of Ext.P6 scene mahazar, deposed that he took
photographs of the dead bodies and the crime scene as instructed
by the Investigating Officer. PW28, the police department
photographer, developed these photographs. The fingerprint
expert, examined as PW27, deposed that out of the nine chance
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prints collected from the crime scene, the chance prints found on
the transparent plastic cover, marked as K8 and K9, were identical
to the right thumb and left index fingerprints of the first accused.
44. One of the challenges raised against the fingerprint
evidence is that, since the plastic cover from which the chance
print was allegedly taken was a movable object, it could have been
easily manipulated. Further, as the said plastic cover was
produced before the Court only on 20.09.2017, the police allegedly
had sufficient opportunity to stage-manage the scene or even to
manipulate the fingerprint of the first accused on the cover.
According to the learned counsel for the appellant, therefore, it is
unsafe to rely upon the fingerprint evidence adduced in this case.
While considering this contention, it is first to be noted that the
presence of a fingerprint expert at the time of the preparation of
Ext.P6 scene mahazar is specifically adverted to in the mahazar
itself. Likewise, MO26, the plastic cover, was also recovered on
13.09.2017, i.e., prior to the arrest of the first accused. Therefore,
the contention of the learned counsel for the appellant that the
chance print was subsequently manipulated cannot be sustained.
Curiously, the learned Sessions Judge discarded the evidence of
the fingerprint expert on the ground that the sample fingerprints
of the first accused were obtained without an order from a
Magistrate. However, we cannot concur with this finding. The
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collection of fingerprints from an accused arrested in a murder
case does not require a Magistrate's order. Under the Criminal
Procedure (Identification) Act, 2022, the police are statutorily
empowered to take such measurements from any arrested person.
It is true that the collection of fingerprints of the first accused in
this case occurred prior to the introduction of the Criminal
Procedure (Identification) Act, 2022. However, even under the
Identification of Prisoners Act, 1920, the police were authorised to
take fingerprints of persons arrested for offences punishable with
rigorous imprisonment of one year or more. Moreover, the process
of collecting fingerprints from an accused does not amount to
testimonial compulsion and is constitutionally permissible.
Therefore, we find no reason to discard the fingerprint evidence
adduced in this case outrightly. On the contrary, it certainly lends
support to the prosecution case.
45. The prosecution's definite case regarding the motive
for the alleged commission of the offence is that the first and
second accused were involved in illicit relationship, and both
apprehended that if the deceased, Swaminathan, and his wife
came to know of this relationship, the family life of the second
accused would be disrupted. Consequently, both of them allegedly
conspired to eliminate Swaminathan and his wife.
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46. Undisputedly, the prosecution has adduced
convincing evidence regarding the prior acquaintance of both
accused and the nature of their relationship. At this juncture, it is
crucial to note that the paternal house of the second accused is at
Thenur. There is uncontroverted evidence showing that the first
accused was also residing in a rented house at Thenur. Moreover,
the evidence suggests that the second accused usually resided at
Thenur and only recently stayed at her husband's parents' house
in the evenings. The evidence of PW15, who resides in Thenur
near the paternal house of the second accused and the rented
house of the first accused, shows that the first accused initially
resided on a rented basis in his house for a short period, after
which the first accused shifted to the portion of the paternal house
of the second accused for a short period. There is evidence to
show that subsequently, the first accused moved to the house of
one Raman on a rental basis. PW15 also deposed that he had
occasion to see both of them talking to each other.
47. Significantly, at the time of the arrest of the first
accused, the police recovered four mobile phones, four SIM cards
and a memory card from his possession. The evidence of PW35, the
Assistant Director (Documents), Regional Forensic Laboratory,
Thrissur, shows that he retrieved video files from the recovered
memory card and mobile phones and compared them with two
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photographs supplied to him for comparison, which were marked
as S1 and S2 in the laboratory. The report of PW35 was marked as
Ext.P29. Referring to Ext.P29, PW35 deposed that the retrieved
video files depict sexual acts involving two persons, who
correspond to the individuals in photographs S1 and S2. The
evidence further shows that the DVDs produced by PW35,
containing the videos retrieved from the memory card and mobile
phones, were displayed in court, and the court got convinced that
the first and second accused were engaged in sexual acts of
various durations, including kissing on the lips and lying naked on
a cot. From the evidence, it is further established that both
accused shared a close acquaintance and engaged in sexual
intercourse.
48. The learned counsel for the appellants argued that, in
view of Section 45A of the Indian Evidence Act, when the Court
forms an opinion on any matter relating to information transmitted
or stored in any computer resource or in any other electronic or
digital form, the opinion of an examiner of electronic evidence, as
referred to in Section 79A of the Information Technology Act,
2000, alone is relevant. According to the learned counsel, PW35,
Assistant Director of RFSL, Thrissur, is not an examiner of
electronic evidence as contemplated under Section 79A of the
Information Technology Act, 2000, and therefore, his evidence is
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not legally admissible.
49. However, the learned Public Prosecutor pointed out
that no notification has been issued by either the Central
Government or the State Government in the Official Gazette
declaring any person as an examiner of electronic evidence during
the relevant period. In the absence of such a notification
appointing an examiner of electronic evidence as contemplated
under Section 79A of the Information Technology Act, 2000, the
evidence of PW35, Assistant Director of RFSL, is admissible under
Section 293 of the Cr.P.C. and Section 45 of the Indian Evidence
Act. It is not in dispute that neither the Central Government nor
the State Government issued any notification appointing any
person as an examiner of electronic evidence during the relevant
period.
50. It is also pertinent to note that even after the
enactment of the Information Technology Act, 2000, there was no
amendment to Section 293 of the Cr.P.C. It cannot be disputed
that PW35, Assistant Director of RFSL, possesses expertise in the
field of electronic evidence. Therefore, there is no reason to
disagree with the finding of the trial court that the evidence of
PW35 is admissible and relevant under Section 45 of the Indian
Evidence Act. Moreover, the trial court itself viewed the videos
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contained in the DVDs and, after a holistic consideration of the
same along with the evidence of PW35, concluded that accused
numbers 1 and 2 shared a close acquaintance and engaged in
sexual intercourse.
51. Undisputedly, after the incident, the second accused
was taken to the District Hospital, Palakkad, and from there, she
was referred to the Medical College Hospital, Palakkad, for a
detailed medical examination. PW14, Assistant Professor in
Gynaecology at Medical College Hospital, collected the vaginal
swab and vaginal smear of the second accused. Similarly, after the
arrest of the first accused, PW13, a doctor at the District Hospital,
Palakkad, collected his blood sample. When the Scientific Officer,
FSL, Thiruvananthapuram, who examined the vaginal swab and
smear of the second accused, was examined as PW49, she deposed
that human spermatozoa were found in the vaginal swab and
smear. Noteably, PW50, Scientific Officer (Biology), FSL,
Thiruvananthapuram, deposed that she extracted DNA from the
spermatozoa found in the vaginal smear and from the blood
sample of the first accused, and the DNA in both was found to
match. The above-discussed scientific evidence clearly establishes
that the spermatozoa found in the vaginal smear of the second
accused belonged to the first accused.
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52. Virtually no further proof is required to establish that
there was close intimacy between the first and second accused,
and that they engaged in sexual intercourse. However, it cannot be
ignored that human spermatozoa may remain detectable for up to
one week after sexual intercourse. Therefore, on purely abstract
terms, it cannot be conclusively stated that the accused had sexual
intercourse on the night immediately preceding the incident.
53. The above-discussed DNA evidence was challenged
by the learned counsel for the appellants, contending that there
was an inordinate delay in sending the vaginal swab and smear to
the laboratory for examination, and therefore, there was a
possibility of manipulation or contamination. However, this
contention cannot be sustained. As already noted, on 13.09.2017,
Dr. Anjali Prakash (PW14) collected the vaginal swab and smear of
the second accused. Subsequently, she handed over the same to
PW48, a woman police constable, for submission to the Chemical
Analysis Laboratory, Kakkanad, Ernakulam. The evidence of PW48
shows that, as instructed by the Investigating Officer, she received
the items from PW14 on 20.09.2017 and produced the sealed
packets before the Chemical Analysis Laboratory, Ernakulam.
Thus, it is evident that until 20.09.2017, the items remained in the
custody of PW14, the doctor. Moreover, there is evidence to show
that there was no facility at the Chemical Lab to conduct DNA
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profiling at that time, and hence, the vaginal swab and smear were
returned to PW14. Thereafter, PW14 entrusted the items again to
PW48 for production before the FSL, Thiruvananthapuram, along
with Ext.P14 forwarding letter dated 21.11.2017. The Circle
Inspector of Police, Kuzhalmannam, the Investigating Officer,
seized the items as per Ext.P81 mahazar dated 21.11.2017 and
produced them before the court on 22.11.2017, describing them in
Ext.P82 property list along with Ext.P84 forwarding note. The
evidence of PW49, Scientific Officer, FSL, Thiruvananthapuram,
shows that she received the items on 23.11.2017, and the seals on
the items were intact and consistent with the specimen seal
impressions forwarded.
54. We agree that there was some delay in sending the
vaginal swab and smear collected in this case for examination to
the FSL, Thiruvananthapuram. However, the said delay is
justifiable, particularly because the samples were initially
forwarded to the Chemical Analysis Laboratory, Kakkanad, where
facilities for DNA profiling were unavailable, necessitating their
subsequent transmission to FSL, Thiruvananthapuram. Therefore,
solely on account of this delay, it cannot be inferred that any
manipulation or tampering occurred, especially since the
prosecution successfully established an unbroken chain of custody
from the time of collection until the samples reached the Scientific
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Assistant at FSL, Thiruvananthapuram. The Scientific Assistant
confirmed that the seals on the packets containing the material
objects matched the specimen seal provided, ruling out the
possibility of tampering.
55. Now, reverting to the motive attributed to the
accused, it is to be noted that the prosecution's case is that the
second accused apprehended that her relationship with the first
accused would come to the knowledge of her aged in-laws, and
that, in turn, would reach her husband. According to the
prosecution, this apprehension motivated both the second accused
and the first accused, who was her paramour, to murder the
victims in this case. However, proof of an illicit relationship
between the accused alone is not sufficient to establish the above-
stated motive. We are mindful that motive, intention, and
knowledge are states of mind, and a court cannot directly probe
into the mind of a person to ascertain the motive behind an action.
Usually, motive is a matter of inference, which can be gathered
from the attending circumstances. Unlike in cases supported by
direct ocular evidence, in cases built upon circumstantial evidence,
proof of motive can significantly aid in establishing the guilt of the
accused and may form an important link in the chain of evidence.
Nonetheless, there is no inflexible rule that proof of motive is a
sine qua non for recording a conviction in a case that rests on
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circumstantial evidence. When there are other compelling
circumstances proving the guilt of the accused, the absence of
motive by itself is not a ground for acquittal. In the present case,
apart from establishing that the second accused maintained an
illicit relationship with the first accused, the prosecution has failed
to prove that the second accused had any motive to commit the
alleged crime. On the other hand, the recovery of the proceeds of
the crime from the first accused suggests that he had a strong
motive to commit robbery after murdering the aged in-laws of the
second accused.
56. Evidently, the second accused, the daughter-in-law of
the deceased in this case, was primarily implicated on the
allegation that the offence was committed pursuant to a conspiracy
hatched between her and the first accused. The prosecution does
not contend that the second accused committed any overt act or
actively participated in the murder of the deceased. The main
offence for which she is convicted is under Section 120-B read with
Section 302 of the IPC. Undisputedly, the foundation of the offence
of criminal conspiracy is an agreement to commit an illegal act or
a legal act by illegal means.
57. The Supreme Court in K.R. Purushothaman v State of
Kerala [(2005)12 SCC 631] observed that;
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"To constitute a conspiracy, meeting of minds of two
or more persons for doing an illegal act or an act by illegal
means is the first and primary condition and it is not
necessary that all the conspirators must know each and
every detail of the conspiracy. Neither it is necessary that
every one of the conspirators takes active part in the
commission of each and every conspiratorial acts. The
agreement amongst the conspirators can be inferred by
necessary implication. In most of the cases, the
conspiracies are proved by the circumstantial evidence, as
the conspiracy is seldom an open affair. The existence of
conspiracy and its objects are usually deduced from the
circumstances of the case and the conduct of the accused
involved in the conspiracy. While appreciating the
evidence of the conspiracy, it is incumbent on the court to
keep in mind the well known rule governing
circumstantial evidence viz. each and every incriminating
circumstance must be clearly established by reliable
evidence and the circumstances proved must form a chain
of events from which the only irresistible conclusion about
the guilt of the accused can be safely drawn, and no other
hypothesis against the guilt is possible. The criminal
conspiracy is an independent offence in the Penal Code.
The unlawful agreement is sine qua non for constituting
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offence under the Penal Code and not an accomplishment.
Conspiracy consists of the scheme or adjustment between
two or more persons which may be express or implied or
partly express and partly implied. Mere knowledge, even
discussion, of the plan would not per se constitute
conspiracy. The offence of conspiracy shall continue till
the termination of agreement." Similarly, in Gurdeep
Singh v State of Punjab (2025 SCC Online 1669), the
Supreme Court held that the offence of criminal
conspiracy need not be proved by direct evidence, nor is it
necessary that all conspirators participate in every stage
of the commission of the offence. What is material is the
existence of a prior agreement, express or implied, to
commit an unlawful act, or a lawful act by unlawful
means. Once such an agreement is established, even by
way of inference from circumstantial evidence, the legal
consequences under S.120-B IPC follow".
58. Keeping the above in mind, while analyzing the
evidence adduced in this case, it is apparent that the main piece of
evidence relied upon by the prosecution to establish the existence
of a conspiracy and to implicate the second accused as a party to it
is the illicit relationship that existed between the first and second
accused. It is true that the prosecution has successfully proven
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that such a relationship existed. However, this fact alone is
insufficient to conclude that the second accused was also a party
to the conspiracy alleged in this case. The evidence clearly shows
that, apart from being the daughter-in-law of the deceased, the
second accused was the daughter of the brother of Premakumari,
one of the deceased in this case. The evidence further establishes
that she was a dutiful daughter-in-law who acted responsibly and
stood by her aged in-laws when they were hospitalised.
59. Another piece of evidence relied upon by the
prosecution is that, after the incident, although the second accused
was found lying on the doorstep of the kitchen, tied and gagged,
the knots on her hands were allegedly loose. To establish this fact,
the prosecution primarily relies on the evidence of PW3, who
deposed that the knots on her hands were indeed loosened.
However, it is pertinent to note that during cross-examination,
when PW3 was specifically asked whether he had communicated
this fact to the investigating officer during the recording of his
statement, he replied that he did not remember. However, no
attempt is seen made by the defence counsel to prove the said
omission while the investigation officer was in the box. Anyhow, if
at all it is assumed that the knots found on the hands were indeed
loosened, the same alone is not a reason to enter into a conclusion
that the second accused was having privy to the conspiracy
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hatched in this case.
60. Another circumstance relied upon by the prosecution
is the entry of the first accused into the house of the deceased
without dismantling any lock or breaking open any door. According
to the prosecution, this entry was facilitated by the second accused
by removing the latches of the door. However, even if it is
accepted that the second accused facilitated the first accused's
entry into the house, this alone cannot justify a conclusion that it
was done by the second accused for the purpose of committing the
murder of the deceased. This is particularly so in light of the
established fact that the first and second accused maintained a
secret relationship and engaged in sexual activities.
61. The learned Public Prosecutor strenuously contended
that, since the presence of the second accused at the time of the
commission of the offence stands fully established, it was
incumbent upon her to offer an explanation regarding the events
that transpired, in view of Section 106 of the Indian Evidence Act.
While considering this contention, it is to be noted that in her
statement under Section 313 of the Cr.P.C., she stated that in the
night of 12.09.2017, she was assaulted and abused after her hands
and legs were tied and her mouth was gagged. It is true that she
has not specified who committed this criminal act. However, the
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mere non-disclosure of the identity of the assailant cannot, by
itself, lead to an inference that she participated in the conspiracy
alleged in this case, or that the offence was committed in
furtherance of the common intention of both the accused.
62. Moreover, as already noted, the second accused was
in a precarious situation. If her illicit relationship with the first
accused were to be revealed, it would undoubtedly jeopardise her
marital life. The social stigma that would follow such a disclosure
within the local community may also have prevented her from fully
revealing all the facts relating to the incident. Therefore, unlike in
other cases, in the present case, even if the second accused failed
to explain all matters within her knowledge, such failure alone
cannot constitute the basis for concluding that she was a party to
the alleged conspiracy. Furthermore, in the absence of any other
convincing circumstances establishing the guilt of the second
accused, it would be unsafe to convict her solely on the ground
that she failed to discharge the evidentiary burden contemplated
under Section 106 of the Indian Evidence Act.
63. From a legal perspective, it is well-settled that in
cases founded on circumstantial evidence, the circumstances
relied upon must be of such a nature that they unerringly point
towards the guilt of the accused. More precisely, the proved
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circumstances must be consistent solely with the hypothesis of the
accused's guilt and incompatible with his or her innocence. In the
present case, the circumstances relied upon by the prosecution
against the second accused do not possess such a character, and it
cannot be said that the circumstances proved against her are
inconsistent with her innocence. Furthermore, the stolen articles
recovered on the strength of the disclosure statement made by the
first accused include gold bangles belonging to the second
accused also. This fact reinforces that the innocence of the second
accused cannot be ruled out. It is also a settled principle that
where two reasonable views are possible, one favouring the
accused and the other favouring the prosecution, the view
favourable to the accused must be adopted. Applying these
principles, we are of the considered view that the prosecution has
failed to prove that both the accused entered into a criminal
conspiracy as alleged by the prosecution.
64. However, as far as the first accused is concerned, the
circumstances adduced against him in this case are convincing and
reliable. The evidence clearly establishes that the first accused was
found near the place of occurrence both before and after the
commission of the offence. This fact assumes particular
significance because the first accused is not a resident of that area
and had no apparent reason to be present there. The absence of
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any explanation from the first accused regarding his presence is
also a significant incriminating circumstance. Similarly, the first
accused's attempt to abscond following the commission of the
offence is a fact relevant under Section 8 of the Indian Evidence
Act as conduct indicative of guilt.
65. The recovery of the stolen gold ornaments and cash
at the instance of the first accused, pursuant to his disclosure
statement, constitutes highly incriminating evidence under Section
27 of the Indian Evidence Act. Likewise, under Section 114,
Illustration (a) of the Evidence Act, the court is entitled to draw a
presumption that a person found in possession of stolen property
soon after its theft is either the thief or has received it knowing it
to be stolen, unless a satisfactory explanation is provided. It is a
well-established principle under common law, repeatedly
recognized in Indian jurisprudence, that when the prosecution
establishes that an accused was found in conscious possession of
the fruits of a robbery closely connected with a contemporaneous
homicide, and the accused fails to offer a credible explanation, the
court may legitimately infer that the person guilty of the robbery is
also responsible for the homicide. Accordingly, the recovery of the
stolen gold ornaments at the instance of the first accused supports
the inference of the first accused's involvement not only in the
robbery but also in the homicidal act forming part of the same
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transaction.
66. Likewise, the recovery of the weapons of offence,
together with the prior conduct of the first accused in sharpening
and strengthening the weapon, demonstrates his preparation to
commit the offence. The evidence of the fingerprint expert, along
with other scientific evidence, further corroborates the
prosecution's case. In view of the above discussion, we have no
hesitation to hold that the prosecution has fully succeeded in
proving the guilt of the first accused beyond a reasonable doubt,
both by the circumstantial evidence and the scientific evidence
adduced in this case.
67. In the result, Crl. Appeal No.1215/2024 is allowed,
and the judgment of conviction as well as the order of sentence
passed against the second accused for the offences punishable
under Sections 120-B r/w 302, 380, 461, and 201 r/w 34 of the
Indian Penal Code are hereby set aside, and she is acquitted. The
Jail Superintendent concerned is directed to release the second
accused forthwith, if her detention is not required in connection
with any other case.
68. As the prosecution has failed to prove the offence of
criminal conspiracy, the first accused is found not guilty of the
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offence punishable under Section 120-B r/w 302 of the Indian
Penal Code and is accordingly acquitted of the said charge. The
sentence imposed by the trial court for the said offence is also set
aside. It is further established that the offences alleged in this case
were not committed in furtherance of any common intention
shared between the accused. Rather, the offences were committed
independently by the first accused, as intended by him.
Consequently, the finding of guilt, conviction, and sentence
imposed upon him by the trial court for the offences punishable
under Sections 302, 449, 380, 461, and 201 of the Indian Penal
Code stand confirmed. With this affirmation and modification, the
Crl.Appeal No.1715/2025 is allowed in part.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
vdv
