Kerala High Court
Rintu @ Thoofan Pradhan vs State Of Kerala on 25 February, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:15849
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 25TH DAY OF FEBRUARY 2025/6TH PHALGUNA, 1946
CRL.A NO. 1281 OF 2024
CRIME NO.467/2018 OF VALAPPATTANAM POLICE STATION, KANNUR
AGAINST THE JUDGMENT DATED 27.03.2024 IN S.C. NO.98 OF
2019 OF ADDITIONAL SESSIONS COURT - I,THALASSERY
APPELLANTS/ACCUSED NOS. 1,3,4 & 5:
1 RINTU @ THOOFAN PRADHAN
AGED 27 YEARS
SANTHA VILLAGE, DHENKANAL DISTRICT,
ODISHA, PIN - 759001
2 GANESH NAIK @ GONIYA
AGED 23 YEARS
S/O. BINOD NAIK, JATHIYA VILLAGE,
DHENKANAL DISTRICT, ODISHA, PIN - 759001
3 BAPPUNA @ RAJESH BEHRA,
AGED 23 YEARS
S/O. BENKANIDHIBEHRA, SANTHA VILLAGE,
DHENKANAL DISTRICT, ODISHA, PIN - 759001
4 CHINTU @ PRASANTH SETHI
AGED 23 YEARS
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S/O. PRATHAP SETHI, SANTHA VILAGE,
DHENKANAL DISTRICT, ODISHA, PIN - 759001
BY ADV. VISHNUPRASAD NAIR
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNKULAM
(CRIME NO. 467/2018 OF VALAPATTANAM POLICE STATION,
KANNUR DISTRICT),
PIN - 682031
BY SRI. ALEX M. THOMBRA, SENIOR PUBLLC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
31.01.2025, THE COURT ON 25.02.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
Accused Nos. 1, 3, 4, and 5 in S.C.No.98/2019 on the file of the
Additional Sessions Judge - I, Thalassery have preferred this appeal
challenging the judgment of conviction and order of sentence passed
against them for offences punishable under Sections 449, 324, 461, 396
and 302 of the Indian Penal Code.
2. Before delving into the prosecution's allegation, it is
necessary to address the names and ranks of the accused to avoid
confusion, as the ranks of the accused were rearranged by the Trial
Court creating some vagueness. Altogether, five persons were arrayed
as accused in this case, out of which three were juveniles in conflict with
law (JCLs) and two were adults. The names of the adult accused are:-
1) Rintu @ Thoofan Pradhan and
2) Boliya Hoori
Out of which Bholiya Dhahoori was absconding from the crime stage
itself.
The names of the JCLs are as follows:-
1) Ganesh Naik @ Goniya(JCL1),
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2) Bappunna @ Rajesh Behra(JCL2) and
3) Chintu @ Prasanth Sethi (JCL3).
3. After completion of the investigation, the final report was
submitted before the jurisdictional Magistrate against the adult accused
and in the final report, Rintu @ Thoofan Pradhan was arrayed as the
second accused, and Boliya Hoori, the absconding accused was arrayed
as the fifth accused. The case against the fifth accused was then split up
and renumbered as C.P. No. 6/2019, and the case against the second
accused was committed to the Court of Sessions, Thalassery. On the
committal of the case against the second accused, the learned Sessions
Judge took cognizance, and the case was numbered as S.C. No.
98/2019. Later, the said case was made over to Additional Sessions
Court -I, Thalassery for trial and disposal.
4. In the meantime, the report against JCLs was also
submitted before the Juvenile Justice Board. The Juvenile Justice Board
conducted a preliminary assessment as provided under Section 15 of the
Juvenile Justice (Care and Protection of Children) Act, 2015 with the
assistance of a Psychologist. After the said preliminary assessment, the
Juvenile Justice Board found that there is a need for the trial of the said
juveniles in conflict with the law as adults and to be tried before the
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Children's Court having jurisdiction to try such offences. The Juvenile
Justice Board then transferred the entire records of the case with
respect to JCLs to the Sessions Court, Thalassery where the case was
numbered as S.C. No.406/2019. Thereafter, the said case was also
made over to Additional Sessions Court-I, Thalassery, which is the
designated Children's court.
5. After hearing both sides under Section 227 of the Cr.P.C.,
and perusal of records, the learned Additional Sessions Judge, framed a
written charge against Rintu @ Thoofan who is shown as the second
accused in the final report as well as in S.C. No.98/2019 for offences
punishable under Sections 449, 324, 461, 396, 302 IPC. The fifth
accused in S.C. No. 98/2019 remained absconding.
6. Likewise, a written charge was framed against accused
Nos.1, 3, and 4 (JCL Nos.1 to 3) in S.C. No.406/2019 alleging the
above-mentioned same offences. When the charges were read over and
explained to the accused, all of them pleaded not guilty and claimed to
be tried. As S.C. No.406/2019 and S.C. No.98/2019 were cases that
arose out of the same transaction, both the said cases were
subsequently clubbed together as S.C. No. 98/2019. Consequently, Rintu
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Thoofan @ Thoofan Pradhan is ranked as A1. Sri. Bholiya Dhahoori, the
absconding accused who is shown as A5 in the final report is shown as
A2. Similarly, Ganesh Naik @ Goniya, Bappunna @ Rajesh Behra, and
Chintu @ Prasanth Sethi (JCL1 to JCL3) were ranked as A3 to A5
respectively.
7. The prosecution allegation as per the original charge sheet
prior to the above-mentioned clubbing and rearrangement of the rank of
the accused is as follows:-
One Ganesh Naik @ Goniya and Rintu @ Thooofan Pradhan were
former employees of Greenwood Plywood Company owned by
Prabhakardas, the deceased in this case, who was a native of Orissa.
While working under Prabhakardas, Ganesh Naik @ Goniya had stolen a
mobile phone, and knowing about the same, Prabhakardas ousted him
from his shop. Hence, a long-standing feud ensued and all the accused
collectively decided to rob the gold and money of Prabhakardas after
murdering him. In preparation, on 19.05.2018, the accused purchased
knives and plastic rope from CW13's shop and after taking food from
Ruchi Hotel at Puthiyatheru they reached the house of Prabhakardas
and rang the calling bell of the said house and criminally trespassed into
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the said house by forcibly opening its front door. Thereafter, Ganesh
Naik @ Goniya who was tying a towel around his face, and Rintu @
Thoofan Pradhan who was wearing a mask wrongfully restrained
Prabhakardas. Meanwhile, Boliya Hoori threatened Lakshmipriya Das,
(CW2), the wife of Prabhakardas by brandishing a knife and attempted
to snatch her gold chain. When CW2 resisted the same, Boliya Hoori
stabbed her wrist with a knife. Then, Bappuna @ Rajesh Behra covered
CW2's mouth with his hand and pushed her down and when
Prabhakardas attempted to intervene, Bappuna @ Rajesh Behra, Chintu
@ Prasanth Sethi, and Boliya Hoori wrongfully restrained Prabhakardas
inside the center hall of his house and fastened his hands and legs with
a rope and Ganesh Naik @ Goniya stabbed on the left side of stomach
and Rintu @ Thoofan Pradhan stabbed beneath the left nipple and
murdered Prabhakardas. Following that Bappuna @ Rajesh Behra and
Rintu @ Thoofan Pradhan threatened CW2 by brandishing a knife, and
Bappuna @ Rajesh Behra, Chintu @ Prasanth Sethi, and Boliya Hoori
dragged her to the bedroom and snatched the key of the shelf from her
and Boliya Hoori opened the steel almirah and committed theft of gold
ornaments weighing 10 sovereigns, two pairs of silver anklets, a pair of
silver rings, Bank passbooks, cheque books, gold chain weighing ½
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sovereign each worn by CW1 and CW2's son, and Chintu @ Prasanth
Sethi, committed theft of Rs. 80,000/- from the dressing table drawer
and two mobile phones worth Rs. 15,000/- and thereby caused a loss of
Rs. 3,45,500/- Thus the accused have committed the offences
punishable under Sections 449, 324, 461, 396 and 302 of the IPC.
8. During the trial, the prosecution has altogether examined
forty witnesses as PW1 to PW40 and proved through them Exts.P1 to
P103 documents. MO1 to MO57 series are the material objects
identified by the prosecution witnesses and marked in evidence.
Contradictions brought out by the defence in the previous statements of
the prosecution witnesses were marked as Exts.D1 to D5. After
completion of prosecution evidence, when the accused were questioned
under Section 313 of the Cr.P.C., they denied all the incriminating
materials brought out against them in evidence. Since it was not a fit
case to acquit the accused under Section 232 of the Cr.P.C., the accused
were directed to enter on their evidence. But no evidence was adduced
from their side.
9. After trial, all the accused were found guilty of offences
punishable under Sections 449, 461, 396, and 302 IPC, and convicted.
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Apart from the said offences, 4th accused was found guilty of offence
punishable under Section 324 of the IPC also and convicted. All the
accused were sentenced to undergo rigorous imprisonment for 10 years
and to pay a fine of Rs.25,000/- (Rupees twenty-five thousand only)
each with a default clause to undergo rigorous imprisonment for a
period of one month under Section 449 of the IPC. All the accused were
sentenced to undergo rigorous imprisonment for one year for offence
punishable under Section 461 I.P.C. For offence punishable under
Section 396 IPC, all 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 imprisonment for three months. For
offence punishable under Section 302 IPC all the accused were
sentenced to undergo imprisonment for life and to pay a fine of
Rs.1,00,000/- (Rupees one lakh only) each with a default clause to
undergo rigorous imprisonment for three months. The 4th accused was
further sentenced to undergo rigorous imprisonment for one year for
offence punishable under Section 324 IPC. The substantive sentences
were ordered to be run concurrently.
10. In this judgment, the accused are referred to according to
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the ranks assigned to them in the trial court's judgment.
11. This is a case of murder for gain. The incident in this case
occurred on 19.05.2018 at 11.00 p.m., inside a rented house where the
deceased was living with his wife and two children. The law was set in
motion in this case on the strength of the FIS given by the minor
daughter of the deceased to the police on 20.05.2018 at 2.30 a.m.,
evidently after a few hours of the incident. When the first informant, an
eye witness to the occurrence was examined as PW21, she portrayed
the entire matters that transpired during the incident as follows:-
12. During the period of occurrence in this case, she along with
her father, mother, and younger brother was residing in a house named
'Haji Quarters'. At that time she was a sixth standard student. Her father
was a contractor at Green Wood Plywood Company. PW23 and PW24,
who were residing near to her house were also working in her father's
shop. On 19.05.2018, she along with her father and brother went to the
house of one Rajesh (PW15), her father's friend, to take a car. After
taking PW15's car and giving their bike to PW15, they returned home.
When they came back, PW23 and PW24 were taking food from their
house. After having dinner, PW23 and PW24 returned to their respective
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houses. Thereafter, she along with her father, mother, and brother had
their dinner and went to sleep by around 10.45 p.m. After a short
while, somebody knocked at the front door of her house. Hearing the
same, when her father put on the light and opened the door, five
persons entered into the central hall of her house, and two of them
caught hold of her father. One of them put a knife on the neck of her
mother (PW22) and another one, stuffed her mouth with a towel. Out
of the accused, four of them were holding knives in their hands and one
among them was carrying a bag on his back. Thereafter, one of the
accused asked her mother to hand over the key of the shelf where gold
ornaments and the passbook of her father and mother were kept.
Scared of the accused, her mother took a key from underneath the bed
and handed over the same to one of the accused. Thereafter, one of the
accused opened the lock of the shelf and took the gold ornaments and
the passbook kept inside the said shelf and put it in a bag. Moreover,
they committed the theft of the mobile phones of her father and mother
and an amount of Rs. 80,000/-, which were kept on the top of the
dressing table. One among them inflicted a cut injury beneath the left
elbow of her mother. In the meantime, two of the accused stabbed her
father with a knife. Thereafter, they tied the hands and the legs of her
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father using a rope. PW21 identified A1 and A3 Gonia as the accused
who stabbed her father. As directed by one of the accused, her mother
removed the chain and bracelet worn by her and handed over the same
to the accused. Her chain, so handed over, had a locket having the
writing 'R'. Similarly, her mother also removed and handed over to the
accused, the chain and bracelet of her brother which he was wearing.
There was a locket in the said chain and the said locket bore the symbol
'ॐ'. Her mother's gold chain with a locket having the picture of
'Sathyababa' was also handed over to the accused. Moreover, the
accused had stolen another chain, mangalsutra, earrings, bangles,
anklets, etc., and put it in the bag and thereafter, pushed her mother
onto a teapoy in the central hall and fled from the spot after closing the
front door of the house from outside. Immediately, thereafter, her
mother opened the back door of their house and raised an alarm,
following which PW16, who is the neighbor of PW21 arrived and opened
the front door. Thereafter, police came there and took her parents to the
hospital in the police vehicle. Ext.P16 is the statement given by her to
the police. Prior to giving the statement to the police, she learned that
her father passed away. According to PW21, the third accused Goniya
had earlier worked in her father's company and during that time, A3
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committed theft of the mobile phone of another staff. Knowing about
the same, her father ousted A3 from the shop and A3 was keeping
vengeance on her father after the said incident. A1 and A3 were the
two persons who grabbed her father forcefully. PW21 identified A1
before the Court as one of the accused. According to PW21, it was the
fourth accused who assaulted her mother and PW21 identified A4 before
the Court. PW21 identified all four accused in the dock as the accused
who came to her house on the fateful day. PW21 further deposed that
during the course of the investigation, police had shown her two CCTV
footage in a laptop containing the picture of all the five accused who
came to her house. Out of the said video footage, one was collected by
the police from the CCTV installed at a nearby house and the other one
was from the CCTV installed at 'Ruchi Hotel'. According to PW21, five
persons who came to her house were found drinking water and taking
food from the hotel in the CCTV footage collected from the Hotel.
According to PW21, she identified all the five accused in the test
identification parade conducted at the Central Jail by the Judicial
Magistrate. PW21 also identified the Redmi Mobile phone of her father
and Lava Mobile phone of her mother and those phones were marked as
MO26 and MO27 respectively. She also identified the gold locket of her
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brother having the symbol 'ॐ' and the same was marked as MO28.
The passbooks and the cheque books issued in the name of her father
and mother were also identified by PW21 and marked as MO6 to MO19.
13. When the wife of the deceased was examined as PW22, she
deposed as follows:-
On 19.05.2018, at around 10.45 p.m., she went to bed to sleep.
Thereafter, at around 11.00 p.m., she heard the sound of a calling bell
ringing. Hearing the same, her husband got up and put on the light and
opened the front door of the house. On hearing a loud sound, when she
came to the central hall from the bedroom, she saw her husband
restrained by five men. Then one among them put a knife against her
neck and forcefully, took her to the bedroom by grabbing her tuft. In the
meantime, two of them restrained her husband. According to PW22,
the man who put the knife against her neck asked her to hand over the
key of the dressing table and when she refused, he inflicted an injury on
her hand with the knife. Out of fear, she handed over the key of the
dressing table, and using the same, the assailants opened the drawer of
the dressing table and committed theft of an amount of Rs. 80,000/-, as
well as the mobile phones of her husband and herself, which were kept
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on the dressing table. Thereafter, they opened the almirah and pulled
out all the articles. After opening the small locker inside the almirah,
they took the cheque books, passbooks, two gold chains, two bangles, a
pair of silver anklets, two pair of earrings, three finger rings, a pair of
anklets having black beads and put all the said items in a bag held by
one of the accused. According to PW22, the accused caught hold on
her tuft, and then asked her to hand over the gold chain worn by her.
Accordingly she removed and handed over her chain. Thereafter as
directed by the accused, she untied the chain with a locket worn by her
daughter and handed over the same to the accused. Thereafter the
accused caught hold of her tuft dragged her to the centre hall and
pushed her onto a glass teapoy in the centre hall. Then the teapoy
glass was broken. Then her husband attempted to rescue her and in the
meantime, the towel tied around the face of one of the accused was
slipped down and it was the 3rd accused Goniya. Goniya had earlier
worked under her husband. According to PW22, prior to the incident in
this case, A3 Goniya threatened her husband over the phone after being
removed from his job following an incident of theft of a mobile phone.
It was A1 Rinto Thoofan and A3 Gonia, who tied her husband with a
rope. Thereafter, A1 and A3 stabbed her husband in his abdomen and
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chest using a knife. PW22 identified A1 and A3 before the court and
identified A4 as the accused who put a knife against her neck and A5 as
the accused who pulled her after grabbing her tuft. According to PW22,
the person, who was holding the bag (absconding accused) is not before
the court. According to PW22 except the accused who was holding the
bag, all other accused were holding knives in their hands. She further
deposed that A4 was wearing a mask at the time of the commission of
the offence. According to PW22, on seeing the accused stabbing her
husband, when she cried aloud, the accused closed her mouth and
thereafter left the house after locking the front door from outside. Then
she rushed to the kitchen area and raised an alarm. Then PW23 and
PW24 rushed to the scene. Thereafter, Police also reached the scene.
Her husband was taken to AKG Hospital in the police jeep and she also
went to the hospital in another vehicle. On the next day, her husband
died. Thereafter, the Police showed her CCTV footage using a laptop
which the Police collected from the CCTV fixed on the front side of his
neighbouring house. In the said CCTV footage she saw all the five
accused reaching her house and leaving from there. Thereafter, the
Police showed CCTV footage collected from 'Ruchi Hotel' located at
Puthiyatheruvu. In the said CCTV visuals also all the five accused were
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seen. According to PW22, she identified all the five accused in the
identification parade conducted at the Central Prison by the Judicial
Magistrate. PW22 identified the mobile phones of her and her husband,
stolen by the accused, and those mobile phones were marked as MO26
and MO27 respectively. PW22 identified one bangle shown to her and
the same was marked as MO29. A pair of silver anklets was also
identified by her and marked as MO31 series. The silver finger ring with
Sai Baba's picture identified by PW22 was marked as MO32. A pair of
toe rings identified by PW22 was marked as MO33 series two in
numbers. The gold chain and gold ring of the deceased stolen by the
accused and identified by PW22 were marked as MO34 and MO36
respectively. The chain and locket of PW22's son was marked as MO35.
The gold rings of PW22's daughter were also identified and marked as
MO37 and her pendant having the picture of Sai Baba was marked as
MO38. PW22 also identified MO28 pendent, MO6 to MO19 passbooks
and chequebooks. The payment receipt identified by PW22 was marked
as MO19(a) and a jewellery box identified by her was marked as MO23.
The nighty and the underskirt which were worn by PW22 at the time of
the incident were also identified and marked as MO39 and MO40
respectively. The saffron colour dhoti worn by the deceased at the time
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of the incident was also identified by PW22 and marked as MO41.
14. When Rajesh, a driver in Greenwood Plywood Company at
Valapattanam was examined as PW15, he deposed as follows:
Prabhakardas, the deceased in this case, was a Labour Contractor,
who used to supply labourers to the said Company. Accused No.3 was
one of the labourers brought to the company by Prabhakardas from
Orissa. While working in the Company, A3 committed theft of a mobile
phone and knowing about the same, Prabhakardas had removed A3
from the job, and thereafter onwards A3 was in inimical terms with
Prabhakardas. According to PW15, on the alleged date of the incident in
this case, Prabhakardas came to his house on a bike. Prabhakardas's
two children were also with him and it was for taking PW15's car
Prabhakardas came. Thereafter, Prabhakardas returned to his house
with PW15's car and the bike of Prabhakardas was entrusted with PW15.
On the same day at midnight, the brother of Prabhakardas informed him
over the phone that Prabhakardas was stabbed by someone. On
knowing about the same, he rushed to AKG Hospital, Kannur along with
his uncle and brother and when they reached there, the body of the
deceased Prabhakardas was found kept in the mortuary of the said
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hospital.
15. An independent witness who allegedly rushed to the scene
immediately after the incident was examined as PW16. According to
PW16, on 19.05.2018 at 11 p.m., while he was sitting outside his house,
he heard a loud cry from the house of Prabhakardas, the deceased in
this case. Upon hearing the same, he rushed to the house, and on the
way he found five persons walking along the main road. When he
reached in front of Prabhakardas' house the front door of the said house
was found locked from outside. Immediately he removed the lock and
entered the house. Then Prabhakardas was found lying in the hall room
of the said house with his head downwards. Both the hands and the
legs of Prabhakardas were found fastened with a rope. The wife and
children of Prabhakardas were there in the kitchen of the said house.
Immediately, he informed the matter to the Police. Hearing the alarm
raised by the wife of the deceased, some other neighbours also came to
the scene by that time. Thereafter, Prabhakardas and his wife were
taken to the hospital in the police jeep.
16. When one of the neighbours of deceased Prabhakardas
from whose house the CCTV footages were collected by the Police was
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examined as PW17, she deposed as follows:
She is residing at a place called Pazhayattikavu. On 22.05.2018,
the Circle Inspector of Police came to her house to collect the CCTV
visuals of 19.05.2018 between 9.45 p.m. and 12 midnight. As
requested by the Circle Inspector, her brother Shahul Hameed handed
over the DVD containing the CCTV visuals to the Police which was
captured by the camera fixed on her house near the roadside.
According to PW17, in the visuals, she had seen five persons walking
from Pazhayattikavu side to Keeriyadu side. Thereafter, the said five
persons were found walking towards the Highway from Keeriyadu side.
During cross-examination, PW17 deposed that the visuals were copied
by her brother on a DVD and handed over to the Police. The said DVD
is marked as Ext.P73 and the certification under Section 65B of the
Indian Evidence Act is marked as Ext.P73(a).
17. The Cashier of Ruchi Hotel from where the accused had
allegedly taken food immediately prior to the incident in this case was
examined as PW20. He deposed that he was working as a Cashier at
Ruchi Hotel located at Puthiyatheruve from 2011 onwards. According to
PW20, after the incident in this case, a Police Constable named Gireesh
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approached him and showed the photograph of five persons, and asked
him whether he knew them to which he answered affirmatively. PW20
further deposed that those five persons had come to his hotel at 8 p.m.,
four days prior to the Police Constable's visit and they had waited for
about 45 minutes for food as the food was already over by the time
when they arrived. According to PW20, thereafter, the waiter served
parotta and vegetable curry to those five men. PW20 further deposed
that, a few days after the incident in this case, the Circle Inspector of
Police had come to the hotel and checked the CCTV footage in the hotel
and then he had seen the five men who came to the hotel in the CCTV
visuals. According to PW20, thereafter, one Sajeer Ahammed (PW27)
who installed the camera had copied all the visuals in a DVD and handed
it over to PW39 who had seized it as per Ext.P(15) seizure mahazar.
PW20 identified all the four accused in the dock as the persons who
came to his hotel along with another person. Moreover, PW20 deposed
that out of the four persons one of them had covered his face with a
towel and another one was wearing a mask on his face. It is further
deposed that one among them was carrying a bag on his back. When
Sajeer Ahammed, who copied the CCTV footage from Ruchi Hotel in the
DVD was examined as PW27, he deposed that on 19.05.2018 he copied
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the visuals in a DVD in two files. The said DVD is identified by him and
marked as Ext.P23. Ext.P23(a) is the certification signed and issued by
PW27 under Section 65B of the Indian Evidence Act.
18. The doctor who conducted autopsy of the deceased when
examined as PW28 deposed that on 20.05.2018, while he was working
as a Professor in Forensic Medicine, Medical College, Pariyaram, he
conducted post-mortem examination on the body of the deceased and
issued Ext.P24 postmortem certificate. Referring to Ext.P24, the doctor
deposed that he had noticed the following antemortem injuries in the
post-mortem examination:-
"1. Incised penetrating wound 3x1cm (3.3cm in length, on
approximation of edges) vertically placed on the upper
part of abdomen, 2cm to the right of midline close to the
costal margin; lower end of the wound was sharply cut
and the upper end showed splitting; there was a tailing,
1.5cm long, at the lower end directed downwards; the
cartilage of 6th rib was found cut underneath to pierce the
diaphragm and terminate in the liver at its interlobar
fissure. The wound was directed backwards, downwards
and to the right for a total minimum depth of 8cm.
2. Incised penetrating wound 3x1.5cm(3.5 cm on
approximation of edges), obliquely placed on the left side
of chest, the lower inner blunt end being 3.5cm above the
costal margin and 14cm below the left nipple, in the
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4'oclock position; the other end was sharply cut. The
wound entered the chest cavity by cutting the cartilage of
8th rib, and terminated by making a cut injury on the back
wall of the aorta, before it entered the diaphragm (2cm
above the origin of the coeliac trunk). Left chest cavity
contained 1200 ml of blood mixed with clots. Lung was
collapsed. The wound was directed backwards,
downwards and inwards for a total minimum depth of 3
cm.
3. Incised penetrating wound 3.5x0.5cm(4cm on
approximation of edges) obliquely placed in the left flank,
the upper outer split end being 7cm below inj.no.2; the
other end was sharply cut. Loops of small intensive with
omentum were protruding out through the wound. The
wound entered the abdominal cavity, punctured the small
intestine 77cm distal to the fixed loop, transected the
small intensine 170 cm distal to the fixed loop, transected
the transverse colon and terminated by puncturing the
back wall of the stomach (4x1cm). The wound was
directed backwards, upwards and inwards fior a total
minimum depth of 4cm. Abdominal cavity contained 100
ml of blood.
4. Abrasion 0.6 x 0.2 cm on the left side of upper end of
nose.
5. Linear abrasion 1cm long on the chin 15cm below the
right corner of mouth."
19. PW28, the Doctor opined that the death was due to the
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bleeding from the stab injury of the chest and abdomen involving the
aorta, liver, and stomach. According to the Doctor, injuries Nos.1 to 3
are independently sufficient to cause death in the ordinary course of
nature. When the Doctor was confronted with MO1 to MO3 knives after
measuring each one he deposed that all the injuries noted in Ext.P24
can be inflicted by using weapons like MO1 and MO2. But MO3 is not
likely to be used as it has a more pointed tip. Of course, a conjoint
reading of the evidence of PW28 and his findings in Ext.P24 postmortem
certificate undoubtedly establishes that the death of Prabhakardas is a
homicide.
20. When the Station House Officer, Valappattanam Police
Station was examined as PW32, he deposed that on 19.05.2018 at
11.00 p.m., he received a telephone call from the police station
informing that five persons trespassed into the house of one
Prabhakardas and after stabbing Prabhakardas, the assailants robbed
the gold ornaments of Prabhakardas's wife. Immediately upon getting
the said information, he rushed to the spot and took steps to guard the
scene. Thereafter, he conducted urgent local patrolling in and around
the said area. Thereafter, he recorded the statement of PW21, the
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daughter of Prabhakardas. Ext.P16 is the FIS given by PW21.
Thereafter, he came back to the police station and registered the
present case and Ext.P29 is the FIR registered.
21. The Sub Inspector of Police, Valappattanam who arrested
the accused was examined as PW33. On examination, before the court
PW33 deposed as it was revealed during the investigation that, the
location of one of the accused in this case is at Thalcher in Angoor
District, Orissa, the Circle Inspector of Police, Valappattanam, the
investigating officer in this case, authorised him to go to Orissa and
arrest the accused. Accordingly, he along with the Assistant Sub
Inspectors of Police and some other police officers went to Orissa. One
of the relatives of the deceased Prabhakardas, named Pappuni (PW24)
who was hailing from Orissa also accompanied them. Thereafter, they
reached Thalcher Police Station at Orissa on 25.05.2018. After verifying
the videos and photos with the help of Thalcher Police, he understood
that Ganesh Naik (A3) is residing at a place called Dhanganal. After
much effort, the house of A3 was located and he along with the police
party reached there. Then the accused was sleeping in his house.
Hence, he was awakened and when compared with the photos and
videos, he got convinced that it was A3. Thereafter, the third accused
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gave clues about the remaining accused and told that all of them were
residing at Santha Village. Thereafter, he directed A3 to change the
dothi which A3 was wearing and asked him to come in proper dress.
Then A3 changed his dothi and came wearing pants and a shirt. On a
search conducted inside the pockets of the shirt and pants, a mobile
phone was found inside the pocket of the shirt and a gold bangle was
found inside the pocket of the pants. Then PW33 seized the said mobile
phone and the gold bangle. Thereafter, PW33 along with the police
party reached at Santha Village along with the third accused. Then the
houses of A1, A4, and A5 were pointed out by the third accused and
those accused were taken into custody from their respective houses.
Though a search was conducted in the house of the absconding
accused, he was not present there. Thereafter, PW33 along with the
police party came back to Thalcher Police Station along with the
accused. When the mobile phone and gold bangle were shown to
Pappuni, the relative of the deceased, he identified the mobile phone as
that of the Prabhakardas and the gold bangle as that of Prabhakardas's
wife. Thereafter, he obtained a transit warrant from the Thalcher SD
Judicial Magistrate Court, and as directed by the Circle Inspector of
Police, Valappattanam Police Station, the Investigating Officer, he
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effected the arrest of A1, A3, A4 and A5 on 26.05.2018. As it was
convinced that the ash colour shirt worn by A4 at the time of his arrest
was the same shirt worn by him at the time of the commission of
offence, the said shirt was seized by PW33 after describing it in Ext.P18
mahazar. Similarly, as it was revealed that the T-shirt worn by A5 was
the same shirt worn by him at the time of the commission of offence,
the same was also taken into custody after describing in Ext.P18
mahazar. One Readmi mobile phone found in the possession of A3 and
a Micromax company-made mobile phone found in the possession of A5
and the gold bangle found in the pocket of A3 were also seized after
describing in Ext.P18 seizure mahazar. PW33 identified all the said items
before the Court. The Readme mobile phone seized from the
possession of A3 is marked as MO26 and the Micromax mobile phone
seized from A5 is marked as MO43. Ash colour T-shirt of A4 seized is
marked as MO44. The T-shirt worn by A5 and seized by PW33 is marked
as MO45. The gold bangle seized from 3rd accused was also identified
by PW33 and marked as MO29.
22. According to PW33 on the interrogation of the 1st accused,
he gave a disclosure statement and on the strength of the said
statement and as led by the 1st accused, PW33 reached at a
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single-room house located at a place called Santha in Danganal District.
Thereafter, the 1st accused took and produced a plastic cover from the
roof of the said room, and inside the said cover, one gold locket having
the symbol 'ॐ', another locket having a picture of Sathya Sai Baba, and
one silver ring were found. Those items were also taken into custody
after describing it in Ext.P19 seizure mahazar. PW33 identified all the
items seized as per Ext.P19 mahazar.
23. According to PW33, during interrogation, A4 also gave a
confession statement and on the strength of the disclosure statement
given by A4 and as led by him, PW33 reached at the single-room house
of A4. Thereafter, the 4th accused took and produced some silver
ornaments from a plastic cover kept inside an aluminium vessel. The
said silver ornaments were recovered after describing it in Ext.P20
seizure mahazar. The said silver ornaments were identified by PW33
and marked in evidence as MO31 to MO33. The relevant portion of the
confession statement made by the fourth accused noted in Ext.P20
mahazar is marked as Ext.P20(a). Thereafter, all four accused were
produced before the Magistrate Court, Thalcher along with an
application for a transit warrant. After obtaining a transit warrant, he
along with the police party returned to Valappattanam Police Station
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along with the accused.
24. The Circle Inspector of Police, who conducted the
investigation in this case was examined as PW39. On examination
before the Court, PW39 deposed that he took over the investigation in
this case on 20.05.2018. He conducted an inquest in AKG Hospital and
Ext.P1 is the inquest report. Thereafter, he visited the crime scene and
prepared Ext.P21 scene mahazar. Blood-stained broken glass pieces of
a teapoy and two yellow colour plastic ropes found at the crime scene
were taken into custody. MO54 and MO55 are the said items. The
Scientific Assistant collected 11 items from the crime scene and those
items were also seized by PW39 after describing it in Ext.P22 seizure
mahazar. Thereafter, as informed by the Sub Inspector of Police, Kannur
Police Station, that some stolen items were found near the Kannur
Railway Station premises, he reached there and recovered the items,
described in Ext.P13 seizure mahazar. PW39 identified the passbook
and the cheque books so recovered from the Railway Station premises
and those items were marked as MO6 to MO19. PW39 also identified a
blue colour pouch as one of the items seized from the Railway Station
Premises and the same was marked as MO20. Five jewellery boxes
seized from the said premises were also identified by PW39 and marked
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as MO21 to MO25. Thereafter, CCTV footage from the house of one
Rafeena Siddique (PW17), which is situated near the house of the
deceased, in this case, was also copied to a DVD with the help of one
Shahul Hameed and the same was seized as per Ext.P14 seizure
mahazar. A certificate under Section 65(b) of the Indian Evidence Act
was also issued by the said Shahul Hameed. The DVD so seized is
marked as Ext.73 and the certificate issued by Shahul Hameed under
Section 65(b) is marked as Ext.P73(a). Thereafter on 23.05.2018, the
CCTV footage from Ruchi Hotel was copied to a DVD by PW27 Sajeer
Ahammed, and the said DVD was taken into custody as per Ext.P15
seizure mahazar. Ext.P23 is the said DVD and Ext.P23(a) is the Section
65(b) certification given by Sajeer Ahameed. Thereafter, PW39 seized
the dress worn by the wife of the deceased after describing it in Ext.P17
Mahazar. The nighty and the underskirt so seized were identified by
PW39 which were already marked as MO39 and MO40. Thereafter,
accused Nos.1, 3, 4, and 5 who were arrested by PW33 from Orissa
were produced before PW39. Those accused were duly produced before
the Court on 12.06.2018. A report showing the correct name and
address of the accused was also submitted before the jurisdictional
Magistrate and Ext.P75 is the said report. The thondi articles seized and
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produced by PW33 and the thondi articles seized by PW39 were also
duly produced before the Court after entering in separate property lists.
25. PW39 further deposed that accused No.3 Ganesh Naik had
given a confession statement and on the basis of the said statement and
as led by the accused he reached near a two-storied building situated
400 metres away from the place of occurrence in this case. Then the
accused took and produced a knife from inside a bushy area on the side
of a road near to the said building. According to PW39, the said knife
was recovered after describing in Ext.P2 mahazar and MO1 is the knife
so recovered. Likewise, on the strength of the confession statement
given by A1, PW39 recovered MO2 knife as taken and produced by A1
from a bushy area on the side of a road near to the two-storied building
to where PW39 was led by A1. The mahazar by which MO2 knife was
recovered was marked as Ext.P3. Moreover, A4 also had given a
confession statement and on the strength of the disclosure statement
made by A4, PW39 recovered MO3 knife from the same bushy area to
where PW39 was led by A4. The mahazar by which MO3 knife was
recovered was marked as Ext.P4.
26. Thereafter, on the interrogation of the first accused, he
gave a disclosure statement and on strength of the said statement and
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as led by A1, PW39 reached in a one-bedroom house of the first
accused located at Santha in Odisha. Thereafter, the first accused took a
plastic cover from his house which contained one Lava company-made
mobile phone, and handed over the same to PW39. The said mobile
phone was taken into custody by PW39 as per Ext.P19 seizure mahazar.
MO27 is the mobile phone so recovered. The said mobile phone was
produced before the court after describing it in Ext.P91 property list. The
relevant portion of the confession statement given by A4 which led to
the recovery of MO27 mobile phone is marked through PW39 as Ext.
P94. Thereafter, a test identification parade was conducted in the
presence of the Judicial First Class Magistrate Court -I, Kannur, and the
report of the test identification parade was submitted before the Chief
Judicial Magistrate, Kannur. According to PW39, in the test identification
parade of PW21 and PW22, the eyewitnesses to the occurrence
identified all the accused. Thereafter, he laid the final report in this case
before the jurisdictional court after completing the entire investigation.
27. In order to bring home the guilt of the accused, the
prosecution primarily relying on the ocular evidence of the deceased's
daughter and wife, who were examined as PW21 and PW22. Their
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evidence unequivocally reveals that on an ill-fated day while they were
preparing to sleep, the accused rang the front doorbell of their rented
house and subsequently, the accused five in number stormed into their
house. The evidence of PW21 and PW22 further reveals that thereafter
the accused wrongfully restrained the deceased and accused Nos.1 and
3 stabbed the deceased with a knife and robbed gold and silver
ornaments. Moreover, the accused robbed Rs.80,000/- as well as the
mobile phones of the deceased and his wife.
28. While evaluating the evidence of PW21 and PW22 it is
crucial to note that the incident in this case occurred within the confines
of their house. Consequently, the inmates in the said house are the
most natural and probable witnesses. Therefore, the testimonies of
PW21 and PW22, the daughter and wife of the deceased merit
considerable weight and credibility. As natural witnesses, their accounts
are inherently reliable. Moreover, in the tragic incident, their close
relative lost his life. Therefore, it is highly unlikely that they would
falsely implicate innocent persons in this case, thereby allowing the
actual perpetrators to escape from punishment.
29. In State of Andhra Pradesh v. S. Rayappa and others
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[(2006) 4 SCC 512], the Supreme Court observed as under:
"Testimony of a witness otherwise inspiring confidence cannot be
discarded on the ground that he being a relation of the deceased is an
interested witness. A close relative who is a very natural witness
cannot be termed as an interested witness. The term interested
postulates that the person concerned must have some direct interest in
seeing the accused person being convicted somehow or the other
either because of animosity or some other reasons. On the contrary, it
has now almost become a fashion that the public is reluctant to appear
and depose before the court especially in criminal cases because of
varied reasons. Criminal cases are kept dragging on for years to come
and the witnesses are harassed a lot. They have been threatened,
intimidated and at the top of all they are subjected to lengthy
cross-examination. In such a situation the only natural witness
available to the prosecution would be the relative witness. The relative
witness is not necessarily an interested witness. On the other hand,
being a close relation to the deceased they will try to prosecute the
real culprit by stating the truth. There is no reason as to why a close
relative will implicate and depose falsely against somebody and screen
the real culprit to escape unpunished. The only requirement is that the
testimony of the relative witness should be examined cautiously."
30. It is noteworthy that during the examination before the
court, PW21 and PW22 had meticulously deposed the overt acts
committed by each and every accused. Their testimonies regarding the
events that transpired in this case are consistent and mutually
corroborative. Furthermore, both PW21 and PW22 positively identified
all the accused who faced trial in this case, before the court.
31. The evidence of PW21 and PW22 was mainly assailed on
the ground that as both the said witnesses did not have any prior
acquaintance with the accused in this case, the in-court identification of
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the accused made by the witnesses is highly doubtful and it cannot be
relied upon. We do agree that the prosecution does not claim that the
witnesses were familiar with all the accused prior to the incident in this
case. Nevertheless, the evidence of PW21 and PW22 reveals that
accused No.3 Ganesh @ Goniya had previously worked in the shop of
the deceased, and both the witnesses deposed about an incident
wherein A3 had stolen a mobile phone, resulting in his ouster from the
shop of the deceased. Therefore, the said evidence reveals that PW21
and PW22 were familiar with A3 Ganesh prior to the incident in this
case.
32. When examining the identification of the other accused
made by the witnesses it is crucial to note that after the arrest of the
accused, a test identification parade was conducted in the presence of
the Judicial First Class Magistrate, Kannur who was examined as PW35.
The evidence of PW35 establishes that both PW21 and PW22 identified
all the accused correctly in the test identification parade. Now the
question to be considered is whether the said identification parade will
lend corroboration to the subsequent in-court identification made by the
witnesses. While considering the said question it is significant to note
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that, from the evidence of PW21 and PW22, it is established that prior
to the conduct of the test identification parade, the CCTV footage,
containing the visuals of the accused, retrieved from a nearby house
and from one 'Ruchi Hotel' were shown to PW21 and PW22. The fact
that the CCTV footage which depicted the accused was shown to the
witnesses prior to the test identification parade raises serious concerns
about the reliability of the identification parade. Ofcourse, the said
action from the side of the investigating officer will definitely vitiate the
identification process. Therefore, we have no hesitation in holding that
the test identification parade conducted during the course of the
investigation will have no use and the same cannot be used to
corroborate the subsequent in-court identification made by the
witnesses.
33. However, merely because of the reason that the test
identification parade was vitiated, the same alone is not sufficient to
discard the in-court identification made by the witnesses during their
examination. We acknowledge that conducting a foolproof test
identification parade is desirable when witnesses have no prior
acquaintance with the accused. A successful identification parade can
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later lend corroboration to the in-court identification made by the
witnesses. However, the absence or vitiation of a test identification
parade does not necessarily render the in-court identification unreliable.
The reliability of in-court identification depends upon the facts and
circumstances of each case.
34. Keeping in mind the above while coming to the case at
hand it can be seen that the evidence of PW21 and PW22, the
eyewitnesses, establishes that there was sufficient light at the crime
scene. The said evidence stands unchallenged from the side of the
defence. Unlike hit-and-run or fleeting encounter cases, where
witnesses have only a momentarily glimpse of the accused, in the case
in hand the assailants remained in the house for a considerable time
committing a mass robbery and multiple overt acts. Therefore, the
witnesses certainly would have had sufficient opportunity to see the
distinctive identifying features of the assailants. Moreover, this is an
incident that resulted in the loss of their close relative who was stabbed
to death. Therefore, the faces of the assailants would naturally be
imprinted in the minds of the witnesses as the trauma generated by the
incident is unimaginable. Given these circumstances, we find that the
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in-court identification of the accused made by the witnesses need not be
doubted.
35. The learned counsel for the appellant challenged the
identification of the accused made by the witnesses by further
contending that, even as per the prosecution case, one of the accused
was wearing a towel around his mouth and another one was wearing a
mask on his face at the commission of the offence. The counsel urged
that this would render the witnesses' identification of those accused
unreliable. However, we cannot accept this argument. It is true that
during chief examination PW21 deposed that A3 was wearing a towel
around his mouth at the time of the commission of the offence.
Similarly, PW22 deposed that A3 had tied a towel around his mouth and
A4 was wearing a mask. However, PW22 clarified that during the course
of the incident, the towel worn by the 3rd accused around his mouth
slipped down, revealing his face. Moreover, wearing a towel as stated
above or a mask by itself will not necessarily preclude identification, as
witnesses can still recognise individuals through other distinguishing
features. At this juncture, it is pertinent to note that both the
eyewitnesses consistently deposed there were a total of five assailants
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and identified all the accused, who faced trial, before the court. As we
have already discussed this case involves the murder of a close relative
of witnesses making it highly unlikely that they would falsely implicate
innocent persons. Therefore, we have no hesitation in relying on the
identification of the accused made by the witnesses before the court.
36. Another important piece of evidence relied on by the
prosecution to prove the complicity of the accused in the commission of
the offence is the recovery of gold ornaments and other stolen articles
allegedly effected by the strength of the disclosure statement made by
the accused in this case. As discussed above when the Sub Inspector of
Police, Valapattanam, who went to Orissa as per the direction of PW39,
the investigating officer, for locating and effecting the arrest of the
accused in this case was examined as PW33 he deposed that after
effecting the arrest of the 1st accused, on interrogation 1st accused
gave a confession statement and on the strength of the said statement
and as led by the 1st accused, he effected recovery of one gold locket
having symbol 'ॐ', another locket having the picture of SatyaSai Baba
and one silver ring after describing in Ext.P19 seizure mahazar.
Similarly, PW33 further deposed that on the strength of the disclosure
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statement given by A4 and as led by him, PW33 reached at the house of
A4 and recovered some silver ornaments after describing in Ext.P20
mahazar.
37. Similarly, when the investigating officer was examined as
PW39 he deposed that one knife (MO1) was recovered by him on the
strength of the disclosure statement given by 1st accused from a place
to where PW39 was led by the 1st accused. Similarly, he deposed that
MO2 and MO3 knives were also recovered on the strength of the
separate disclosure statements given by the 3rd and 4th accused from
the place where he was led by those accused. Now the prime question
that requires to be addressed is whether the recovery of the
aforementioned gold ornaments and weapon of offence will come under
Section 27 of the Indian Evidence Act. Now it is noteworthy that as per
Section 27, the only information given by the accused that can be
proved is the information that distinctively leads to the recovery of a
fact. The said information gains guarantee or gets confirmed by the
subsequent recovery of a fact. Therefore, the first thing is that the
exact information which led to the recovery of the fact must be proved
sufficiently before the court. The investigating officer must record and
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later depose the exact words said by the accused before the court.
Then only it can be said that the information given by the accused is
proved. In the case at hand, it is established that all the accused are
hailing from Orissa. However, the statement of the accused which
allegedly led to the recovery of the gold ornaments as well as the
weapon of offence are seen recorded in the respective seizure mahazars
in Malayalam script in Hindi language. It is an admitted fact that none
of the accused were proficient in Malayalam. The fact that the
disclosure statement is not recorded in Malayalam script reveals that
none of the accused know Malayalam. In the said circumstance, it was
obligatory on the part of the investigating officer to take down the
relevant portion of the confession statement of the accused in the
language known to the accused and thereafter to give a Malayalam
translation of the same.
38. A Division Bench of this Court in Sanjay Oraon v. State
of Kerala [2021 (5) KLT 30], held that "recovery effected as per the
statement of the accused - not recorded in the language as spoken by
the accused is not proper. In such circumstances, the exact words of
the accused have to be recorded and translation to be appended."
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39. Therefore, in view of the above discussion we have no
hesitation in holding that the recovery of gold ornaments and the
weapons of offence in this case cannot be treated as a recovery under
Section 27 of the Indian Evidence Act. However, the conduct of the
accused in taking and handing over the gold and silver ornaments to the
Police is certainly relevant under Section 8 of the Indian Evidence Act.
The evidence reveals that all the accused shared the booty after the
commission of the offence. The gold ornaments and silver ornaments
recovered in this case were duly identified by PW21 and PW22 before
the court as the ornaments stolen by the accused from their house.
Significantly the articles recovered in this case are gold and silver
ornaments which are of much value in terms of money and that itself
guarantees that the Police will not plant such items in a case to falsely
implicate an accused.
40. The possession of booty by the accused will tell volumes
regarding their involvement in the commission of the offence. As spelt
out under Section 114 (a) of the Indian Evidence Act when a person is
found in possession of a stolen article, immediately after the theft the
presumption is that he is either the thief or the receiver of the stolen
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property. When such a presumption arose it is the duty of the accused
to rebut the same by explaining how he happened to be in possession of
the said items. In the case at hand, no plausible explanation was
offered from the side of the accused as to how they came into
possession of the said gold and silver ornaments, and hence the
presumption stands undisplaced. More significantly, from the evidence
adduced in this case, it is established that the robbery and murder
occurred at the same time i.e., in the course of the same transaction.
Therefore, there is nothing wrong in drawing a presumption that the
persons behind the robbery are the persons behind the murder, by
extending the presumption under Section 114(a) of the Indian Evidence
Act.
41. One of the main contentions taken by the learned counsel
for the appellant is that a fair trial was denied to the accused. According
to the counsel, while framing the charge, and questioning the accused
under Section 313 Cr.P.C., the trial court disregarded the fact that the
accused were not conversant with Malayalam and questions were put to
them in Malayalam rendering the accused incapable of understanding
the same and to give answers. We do agree that framing of charge and
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questioning of the accused under Section 313 Cr.P.C. are not empty
formalities. Only when the charge levelled against an accused is duly
brought to his notice, he could defend the said charge effectively.
Likewise, only when the circumstances and evidence brought out during
the trial are put to the accused, he can offer an explanation regarding
the same. In the case at hand, a perusal of the court charge clearly
shows that there is an endorsement that the charge has been
translated, read over, and explained to the accused in Hindi which is the
language known to them. Similarly, in the document in which the plea
of the accused is recorded, it is specifically stated that the contents in
the same are also translated to the accused by one Adv. Jayesh L.
Likewise, on the last page of the 313 statement, it is specifically
endorsed that questions 1 to 148 which are put to the accused under
Section 313 of Cr.P.C. are read over to the accused in Hindi language
and the answers to the question are translated to the court in
Malayalam. Therefore, the contention of the learned counsel for the
appellant that, as the accused were ignorant of Malayalam language
they were in the dark regarding the charge which they faced and they
could not understand the questions put to them during 313 questioning
is only liable to be discarded. More significantly, it is highly dubious
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why such a contention was not taken before the trial court at any stage
of the proceeding if the grievance of the accused in the above regard
was a genuine one.
42. Another contention taken by the counsel for the accused is
that as PW21 had given evidence in a language not understood by the
accused it was incumbent upon the court to interpret the said evidence
in open court in a language understood by the accused. We do agree
that PW21 had given evidence initially in Malayalam language and some
part of the evidence had been given in English language. In the
deposition, it is nowhere stated that the said evidence was interpreted
to the accused in Hindi, the language known to the accused. In view of
Section 279 of Cr.P.C., it is the duty of the court to ensure that the
evidence given by a witness shall be interpreted to the accused in a
language understood by the accused if the said evidence is given in a
language not known to the accused. However, while considering the
said lapses that occurred during the trial, it is to be noted that at any
stage of the proceedings, none of the accused took a contention that
they could not understand the evidence given by PW21 before the court.
Similarly, such a grievance was not raised when the evidence given by
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PW21 was put to the accused in Hindi as part of 313 questioning. In
Shivanarayan Kabra v. State of Madras [AIR 1967 SC 986], a
similar contention was taken from the side of the accused before the
Hon'ble Apex Court. In the said case also, it was contended that the
evidence of prosecution witnesses was given in a language not
understood by the accused, and as the said evidence was not
interpreted to the language understood by the accused, there is a
breach of the requirement of Section 361(1) of the Code of Criminal
Procedure (old Act) and the trial was vitiated. Dealing the said
contention, the Apex Court, in the above-said case, observed that:-
"we do not think there is any substance in this argument. Even if it is
assumed that the appellant did not know English or Tamil the violation
of Section 361(1) of the Code of Criminal Procedure Code was merely
an irregularity and it is not shown in this case that there is any
prejudice caused to the appellant on this account. It is pointed out by
the Sessions Judge that the appellant did not make any objection at the
time the evidence was given and it appears that he was represented by
two eminent advocates - Sri. V.T. Rangaswami Iyenger and Sri. R.
Krishnamoorthy Iyer - in the trial court who knew both these languages
and who would not have allowed the interest of the appellant to be
jeopardised even to the smallest extent. In our opinion, the irregularity
has not resulted in any injustice and the provisions of Section 537 of
the Criminal Procedure Code are applicable to cure the defect."
43. Keeping in mind the above, while coming to the case at
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hand, it is noteworthy that, all the accused were represented by
Lawyers. The fact that none of the lawyers engaged for the accused
raised any objection regarding the trial court proceedings itself suggests
that no prejudice occurred to the accused in defending their case
effectively due to any procedural irregularities.
44. Moreover, Section 465 of Cr.P.C. makes it clear that a finding
or sentence is not reversible by a court of appeal, confirmation, or
revision, due to any error of irregularity in a proceedings occurred
during the trial, enquiry or other proceedings under the Code of Criminal
Procedure unless, in the opinion of that court, a failure of justice has
been occasioned thereby. Similarly, Sub-section (2) of Section 465
clarifies that while considering the question whether such an irregularity
in any proceedings has occasioned a failure of justice the court shall
have regard to the fact whether the objection could and should have
been raised at an earlier stage in the proceedings. Keeping in mind the
above provision while coming to the facts in the present case, we have
no hesitation in holding that no failure of justice has been occasioned in
this case. A close scrutiny of the proceedings in this case reveals that
no prejudice has been occasioned to the accused in defending his case
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properly. Though the evidence of PW21 was not interpreted to the
accused in Hindi, PW21 was effectively cross-examined by the counsel
for the accused. Moreover, at any stage of the proceedings, the accused
or their counsel did not raise a grievance that the accused could not
understand the evidence given by PW21 before the court. The inaction
on the part of the accused as well as their counsel in raising any
objection at an earlier stage in the proceedings before the trial court
also indicates that no failure of justice or prejudice has been occasioned
in this case.
45. The learned counsel for the appellant urged that the
Juvenile Justice Board's finding that accused Nos.3, 4, and 5 (JCL 1 to 3)
need to be tried as adults is gravely illegal. According to the counsel,
the Juvenile Justice Board took the decision to treat accused Nos.3, 4,
and 5 as adults and to transfer their case to the Children's court without
properly appreciating the preliminary assessment report of the
Psychologist. It is pointed out that in the said report, it is mentioned
that JCL 1 Ganesh Naik (A3), JCL 2 Rajesh Behra (A4) and JCL 3 Chintu
Prasanth Sethi (A5) had attained mental age of only 12 years, 12 years
and 15 year and 3 months respectively. According to the counsel,
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therefore, the decision taken by the Juvenile Justice Board that, there is
a need for trial of the said juveniles as adults is not sustainable.
46. While considering the abovesaid contentions, it is to be
noted that in view of Section 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2015, in case of a heinous offence alleged to
have been committed by a child who has completed or is above the age
of 16 years the Board shall conduct a preliminary assessment with
regard to his mental and physical capacity to commit such offence,
ability to understand the consequence of offence and the circumstances
in which he allegedly commits the offence. Proviso to Section 15 makes
it clear that for conducting such a preliminary assessment the court can
seek the assistance of experienced Psychologists, psycho-social workers,
or other experts. Similarly, as per Section 18 (3) of the JJ Act, after
preliminary assessment under Section 15, the Board can pass an order
that there is a need for a trial of the said child as an adult and then the
Board can order the transfer of the trial of the case to the Children's
Court having jurisdiction to try such offences.
47. Keeping in mind the above statutory provisions, while
coming to the facts in the present case, it is to be noted that all the
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Juveniles in Conflict with Law involved in this case are admittedly above
16 years of age. The offence alleged to have been committed by them
is obviously heinous in nature. In view of the abovesaid matters the
Juvenile Justice Board appears to have conducted the preliminary
assessment with the help of a Psychologist who is examined as PW37
during the trial. The reports pertaining to the assessment made with
respect to JCL 1 to 3 (A3, A4, and A5), are marked in evidence as
Exts.P58 to P60. A perusal of the said assessment report clearly
indicates that in order to assess the mental age of the JCLs, a standard
progressive matrix test was adopted (SPM Profile Analysis) and on the
basis of the said analysis, the mental age of the JCLs 1 and 2 was
assessed at 12 years and age of JCL 3 was assessed at 15 years and 3
months. Similarly, in the result portions of Exts.P58 to P60 it is
mentioned that the current intellectual functioning of JCL 1 and 2 (A3
and A4) falls under the category of borderline intelligence and that of
JCL 3 (A5) falls under the category of average intelligence. More
significantly, in these reports, it is opined that all the JCLs would have
their age-appropriate knowledge about the consequence of their act at
the time of doing the crime. Similarly, when the Psychologist who
conducted the preliminary assessment was examined as PW37 he
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categorically deposed that all the above juveniles are mentally fit and
have age-appropriate knowledge about the consequence of their act.
Therefore, the contention of the petitioner that JCL 1 to 3 did not have
sufficient mental maturity to understand the consequence of their act
will not be sustained. On the other hand a conjoint reading of the
evidence of PW37 and Exts.P58 to P60 reports, convincingly establishes
that JCL 1 to 3 were having sufficient mental ability and maturity to
understand the consequence of the act which they have committed.
Though PW37 was subjected to rowing cross-examination, he sticks to
the stand that JCL 1 to 3 were capable of understanding the
consequence of their act. Moreover, there is nothing to show that JCL 1
to 3 were mentally or physically incapacitated to commit such offence.
In the said background, the contention of the learned counsel for the
appellant in the above regard will definitely fail.
48. Anyhow, we have a disagreement on the finding of the trial
court that the fourth accused is guilty of an offence punishable under
Section 324 of the IPC. Even as per the prosecution allegation, it was
the fifth accused who stabbed PW22, the deceased's wife with a knife.
In the court charge also it was mentioned that it was the fifth accused
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who stabbed PW22. A perusal of the impugned judgment reveals that it
was by relying on the evidence of PW22, that it was the fourth accused
who stabbed her, the Trial Court convicted the fourth accused for
offence punishable under Section 324 of the IPC. In short, such a
finding and conviction were entered on without a court charge to that
effect. Therefore, the conviction of the fourth accused for offence
punishable under Section 324 of the IPC and the sentence imposed for
the said offence is liable to be set aside.
49. In short, the evidence adduced in this case clearly indicates
that it was a meticulously planned and scrupulously executed murder,
committed for gain. The evidence of PW21 and PW22, the inmates in
the house where the incident occurred is convincing and reliable. It was
in their presence their close relative was brutally attacked and killed.
There is nothing to suggest that the said witnesses have any sort of
animosity or grudge of such a nature that would motivate them to
falsely implicate the accused in the murder of their close relative,
thereby allowing the real culprits to be scot-free. Though the recovery
of the booty will not come within the purview of Section 27 of the Indian
Evidence Act, the conduct of the accused in pointing out the place
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where the gold ornaments and other stolen articles were kept and
handing over the same to the Police is relevant under Section 8 of the
Indian Evidence Act. The possession of stolen gold ornaments and
other stolen articles immediately after the theft raises a strong
presumption that the accused is either the thief or receiver of stolen
property in view of Section 114 of the Indian Evidence Act. Though the
said presumption is a rebuttable one, in the case at hand, no
explanation has been offered from the side of the accused for the
possession of the booty and hence the presumption stands undisplaced
or unrebutted. Notably, the stolen articles alleged in this case are of
much value in terms of money and hence it cannot be expected that
those items were planted in this case by the Police with the malicious
intention of making false evidence against the accused. The CCTV
footage collected in this case and the evidence of the Manager of the
Ruchi Hotel from where one of the footages were collected clearly show
that the accused were available in the locality prior to the commission of
the offence in this case. Considering all the above said facts, we are of
the view that the prosecution has succeeded in proving the charge
levelled against the accused.
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Resultantly, the finding of the learned Additional Sessions Judge
that the fourth accused is guilty of offence punishable under Section 324
of the IPC, and the conviction and sentence passed against him for the
said offence is set aside. With the above-said modification, we confirm
the finding, conviction, and sentence passed by the learned Additional
Sessions Judge for the offences punishable under Sections 449, 461,
396, and 302 of the IPC, against the accused Nos.1, 3, 4, and 5 in S.C.
No.98/2019 on the file of the Additional Sessions Court I, Thalassery.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd/DCS
