Mohanan, J.
The sole accused in S.C.No.78/09 of the court of Additional Sessions Judge (Ad hoc-1), Ernakulam, challenging the judgment dated 12.5.2009, by which the court below convicted and sentenced the accused for the offence punishable under sections 302, 397 and 201 of IPC, has come up in appeal.
2. The prosecution case is that, the deceased Mary, while residing along with her husband and their children at their house, adjacent to the house of the accused, at about 10.30 a.m. on 1.1.2008, went to the house of the accused, bearing house No.IX/367 (II/344) of Kalloorkad Panchayat, for collecting buttermilk and the accused, who was badly in need of money, was awaiting to commit murder of the said Mary for taking her gold ornaments and with a view to cause disappearance of evidence, had already prepared a pit for burying the body of the deceased. When the said Mary reached his house at about 11.10 a.m. on 1.1.2008, she was tactfully called to the kitchen of the house of the accused, from where, the accused took her to the middle room situated in the western side of the house of the accused and thereafter, by using an iron pipe, inflicted blow on the head of the said Mary and when she cried, her head was hit against the wall and using the same iron pipe, he inflicted injuries repeatedly on the front and right side of her neck and on both sides of the head, as a result of which, she succumbed to death and thereby the accused committed murder of the said deceased Mary. Thereafter, the gold ornaments worn by the deceased in her neck and hands were taken away and the studs worn in her ears were also removed after cutting the ears and thereafter the body of the deceased was buried in a pit, which he had already prepared within a distance of 12-20 mtrs away from the south-western corner of the house, having the width of 85 cm and length of 154 cm and having 70 cm depth and thereby caused disappearance of evidence and thus according to the prosecution, the accused has committed the offences punishable under sections 302, 397 and 201 of IPC.
3. It is the further case of the prosecution that on 1.1.2008, the deceased Mary was available in their house in the morning and when the daughter of the deceased Mary, namely Bindu Joseph, left for school, she had seen Mary - her mother in the house and when she returned from School at about 4o’ clock, her mother was not found in the house ; then she opened the door and waited for her mother and as her mother did not reach, she enquired in the nearby houses and the neighbours replied that they did not see the deceased Mary. After sunset, the husband of the said Mary arrived after his agricultural work and though he conducted enquiry, he could not trace out his wife. So, according to the prosecution, the husband of the deceased Mary went to the Police Station at about 9 a.m. on 2.1.2008 and launched a complaint about the missing of his wife-Mary, who is aged 42 years, from 4 p.m. onwards on 1.1.2008, on the basis of which, the then Sub Inspector of Police, Kalloorkad, registered a crime as FIR No.1/08 under the caption “woman missing”.
4. Ext.P2 is the FIS so furnished by the husband of the deceased. In the above statement, the first informant, namely Joseph, s/o.Xavier, who is the husband of the deceased, has stated that he had come to the Police Station to complain about the missing of his wife, namely Mary, aged 42 years, on 1.1.2008 from 4 p.m. onwards. According to him, himself, his wife and the children, namely Simi, Shibin and Bindu are residing together. Their elder daughter is studying for Nursing in Calcutta and the son Shibin is attending Computer course at Kothamangalam and their younger daughter Bindu is studying in Kalloorkadu St.Augustine School. Their son and younger daughter are at present residing in the house. His son and daughter are regularly going to school between 8.45 and 9 a.m. At about 6.45 a.m. on 1.1.2008, he went to Piravam, for pineapple cropping. According to him, he came to know about the said fact when he returned back. When their younger daughter returned from School in the evening at about 4 o’ clock, Mary was not present in the house and the daughter opened the house taking the key from the place where it was usually kept and as the mother did not return even after 6o’ clock, the daughter went to the neighbouring houses and enquired about her mother and as no hint was obtained, she contacted her father's brothers over phone and the matter was informed to them. According to the informant, when he came back from Piravam, his neighbours and relatives were searching for Mary and he also contacted his relatives, who are residing far away from his house, over phone and enquired with them. The search was conducted in the nearby properties and wells. It is also stated that 3 months ago, due to low blood pressure, she had collapsed inside the house. Therefore, search was conducted to trace out Mary in the nearby properties also, under the belief that she might have collapsed there when she had gone for tethering the goat. It is also stated that the house mates of Kainikkal House told that, at about 12 o’clock during day time, they had seen the deceased Mary, wearing a nighty, in Marutoor road. According to the informant, nobody is inimical to the said Mary and as per his version, his wife is not so tall and she was with normal body nature and at the time of missing, she had worn a green coloured nighty and also worn a gold chain of Thara model having 3 sovereigns, 4 bangles having 3 sovereigns and also ear studs. It is also stated that at the time of missing, she had not taken any cloths, money or gold ornaments from the house. It is also stated that there was no issue or dispute between him and the wife. According to him, his wife was found missing, after their children had gone to School in the morning and he has nothing to say on doubt and though he had enquired with his relatives and nearby hospitals, no information had been received.
5. On the basis of the above information furnished before the then Sub Inspector of Kalloorkad Police Station, Crime No.1/08 was registered in the Kalloorkad Police Station, under the caption “woman missing” by the said Station House Officer. According to the prosecution, after registering the crime, the said Sub Inspector went to the place of occurrence and he enquired about the matter with the neighbours of both the accused as well as the missing woman and also enquired with the accused. The approach of the accused created certain doubt and accordingly he was brought to the Police Station and questioned, during which, he confessed that he had murdered the said Mary for taking the gold ornaments and also stated that the body was buried in his property, and consequent to the above revealing, the Sub Inspector of Police again came to the place of occurrence and got convinced that what was stated by the accused was correct. Thereafter, he filed a report to delete the caption “woman missing” and incorporated sections 302, 397 and 301 of IPC and also furnished a report showing the full address of the accused and the report was furnished to the Circle Inspector of Police, Kalloorkad.
6. Thus, PW19, the then Circle Inspector of Kalloorkad Police Station undertook the investigation and thus he arrested the accused at 1.30 p.m. after preparing arrest memo, which is marked as Ext.P18. Thereafter, he proceeded to the place of crime and prepared Ext.P4 scene mahazar. Then the accused was kept in the lock-up after conducting his body search. Subsequently, on 3.1.2008 at about 9.15, when he was questioned, he disclosed that the chain and bangles were sold in a jewellery at Koothattukulam and if he is taken, he will show the shop in which the same were sold and the person who had purchased the same and accordingly as led by the accused, PW19 went to Thannikkal shop pointed out by the accused and he showed one Mathew as the person who had purchased the gold ornaments. The said person produced the gold ornaments, saying that the same were purchased from the accused ; a gold chain and 4 bangles were seized in the presence of attestors as per Ext.P3 mahazar. Ext.P3 (a) is the confession statement of the accused with respect to the recovery of the gold chain and bangles which are respectively identified as MOs.2 and 3 series. According to PW19, when he questioned the accused, he had disclosed that the iron pipe has been kept in the house and if he is taken there, the same will be brought out and accordingly on the basis of the said statement and as led by the accused, PW19 proceeded to Chirattolickal house in Kalloorkadu Village at Maruthoor kara, which is facing towards east and the iron pipe, which was placed along with firewood that was kept beneath the slab lying lengthwise on the east-west position adjacent to the northern wall of the kitchen situating on the northern side of the said house, was seized as per Ext.P5 seizure mahazar. The confession statement of the accused is marked as Ext.P5(a). PW19 has identified the said iron pipe when shown to him, which was already marked as MO10. According to PW19, the accused had also confessed that the studs had been buried at a place outside the house and if he is taken to the place at which it was buried, it can be pointed out. Accordingly, as led by the accused, PW19 and party proceeded to Chirattolickal house and the accused after having removed the loose soil lying near to the foot of the hen coop, which was situated about 40 cm. away from the southern wall of the latrine of the house, had taken out and handed over the packet wrapped with white paper ; which when opened, the studs were found and accordingly the said studs and the paper used for wrapping the same, were seized as per Ext.P6 mahazar. The confession statement of the accused is marked as Ext.P6(a). MO4 series are the two studs which were identified by PW19. According to PW19, when he further questioned the accused, he stated that, “I have kept the cash in a place at my house. If I am taken there, the cash and the place at which the same is kept, can be shown out” and accordingly PW19 and party, as led by the accused, reached Chirattolickal house and accordingly, the accused, after opening the bottom drawer of the wooden almirah, which can be opened towards east and which was placed adjacent to the western wall of the bed room of the said house, took out the currency notes of Rs.26,500/- and accordingly the same were seized as per Ext.P9 mahazar. The confession statement of the accused is marked as Ext.P9(a). According to PW19, as the accused had disclosed in his confession statement that, the receipt that was obtained when the gold was sold, has been kept in the house and if he is taken there, the receipt and the place at which it has been kept shall be shown out. Thus according to PW19, as led by the accused, himself and party went to Chirattolickal house and a folded bill was taken out by the accused from the almirah placed adjacent to the western wall of the bed room situated on the southern side bed room of the said house, and it was seized as per Ext.P7 mahazar. The confession statement of the accused is identified and marked as Ext.P7(a). The said receipt is identified as Ext.P8. According to PW19, as part of the investigation, he had questioned the witnesses and recorded their statements. He had also produced the accused before the court by filing a remand request and also produced the properties which were seized. Thus he identified Ext.P19 as the property list with respect to MO4 series of studs, Ext.P20 as the property list with respect to the four bangles and the gold chain, and Ext.P21 as the property list with respect to the currency notes for Rs.26,500/- and the rubber band used along with the white paper for wrapping the cash. PW19 has identified Ext.P22 property list by which, the lunki, tray and the spade were produced, which were seized as per the scene mahazar. Ext.P23 is the property list with respect to the iron pipe and the blood stained knife. Ext.P24 is the property list with respect to the dress worn by the deceased and seized from her dead body, ie., nighty, underskirt and brassier. According to PW19, the Medical Officer had collected the nail clippings and blood sample from the body of the accused, when the accused was produced for medical examination and those materials were produced before the court in a sealed packet. PW19 has also identified Ext.P25 property list with respect to the materials collected at the time of inquest by the Scientific Assistant from the dead body, which was produced before the court in a sealed packet. Thereafter, according to PW19, on 4.1.2008 at 6.30 p.m., PW5-Scaria appeared in the Police Station and stated that, the accused on 4.1.2008 at 10 o' clock had given him Rs.5,000/- and he produced 10 notes of 500 denomination, which were seized as per Ext.P26. The cash was produced before the court as per the property list prepared by PW19, which he identified as Ext.P27 and the said currency notes were identified as MO5 (10 numbers). According to PW19, he had also seized the gold purchase register pertaining to the year 2007-08 belonging to Thannikkal jewellery, which was produced by one Rajesh, an employee of the said jewellery and the said mahazar was identified as Ext.P15 and the register has been produced before the court. According to PW19, one Shibu- the brother of the husband of the deceased Mary, had produced a CD on 7.1.2008, which contained the photographs of the deceased Mary and the same were seized as per Ext.P16 mahazar. PW19 has also stated that he had seized the account book, which was produced on 15.1.2008 by one Krishnankutty, showing that the accused owed some amount from him towards the purchase of provision from his shop and the said book was seized as per Ext.P17 mahazar. According to PW19, he had prepared Ext.P28 mahazar, connected with the seizure of video CD produced by one Mathew which was recorded instantaneously while conducting inquest on the body of the deceased on 3.3.2008 and as per Ext.P29, he had also seized the CD containing the still photos with respect to the inquest conducted on 10.3.2008. According to PW19, on 18.3.2008, one Dr.Ajayakumar attached to Archana Hospital, Thodupuzha, produced the case sheet with respect to the deceased Mary, as per Ext.P30 seizure mahazar for IP Register, of which the attested copies were produced before the court and original was returned on kaichit. PW19 has also questioned the doctor who conducted the autopsy. He also produced the possession certificate, tax assessment register, sketch etc. with respect to the place of occurrence. According to PW19, he had also requested the court to sent the material objects produced before the court for chemical analysis to the F.S.L. through a forwarding note. He had also filed Ext.P31 report, on the basis of a letter from the Panchayat Secretary, showing that the house number which was shown as IX/367 in the scene mahazar was the old number of the house and the correct number is II/344. Ext.P32 series are the chemical analysis report with respect to the materials that were subjected to chemical analysis. PW19 has identified the dress worn by the accused and the knife used by him. MO7 is identified as the knife. MO8 is identified as the spade. PW19 had also identified Ext.P33 series as the property list for the 3 CDs that were produced before the court. He had also identified the CDs as MO11 series (3 in numbers). PW19 had also deposed that Mary was said to have worn a golden chain having a weight of 10½ gms and four bangles and studs at the time of her missing ; and the said chain that she had worn at the time of missing was that of her husband, since the hook of her thali chain had been broken and when the husband gave statement to PW19, he said that he has forgotten to disclose the above aspect. During the examination of PW19, he identified the accused who was standing in the box. According to PW19, he had completed the investigation and laid the charge on 25.4.2008.
7. Thus, in the light of the report filed by PW19 in the court of Judicial First Class Magistrate- Moovattupuzha, C.P.No. 10/08 was instituted and the learned Magistrate by his order dated 27.1.2009, committed the case to the Sessions court (Ad hoc-1)- Ernakulam, wherein S.C.No.78/09 was instituted. It is relevant to note that after the arrest of the accused, he was under custody till the impugned judgment was pronounced by the trial court. We notice that in the impugned judgment, the trial court has failed to mention that the accused was defended by an advocate appointed by District Legal Service Authority, Ernakulam. By Order bearing No.55/09 dated 12.3.2009 of the Kerala State Legal Services Authority, Adv.P.Latha was appointed to appear before the trial court and to defend the case on behalf of the accused. When the accused was produced from the custody, both the defence as well as the prosecution were heard and a formal charge was framed against the accused for the offences punishable under sections 302, 397 and 201 of IPC, which when read over and explained to the accused, he denied the same, consequent to which, the trial was proceeded further, during which, PWs.1 to 19 were examined from the side of the prosecution and also produced Exts.P1 to P34(a) documents. Mos.1 to 11 were also identified as material objects. On completing the prosecution evidence, the accused was examined under section 313 of Cr.P.C., during which, when the incriminating evidence and circumstances that brought out in the prosecution evidence, were put to the accused, he denied the same and pleaded that he is not guilty. As the learned Sessions Judge has found no ground to acquit the accused under section 232 of Cr.P.C., the accused was asked to adduce defence evidence if any. However, no evidence whatsoever has been adduced from the defence side. Thereafter, the learned Sessions Judge heard both sides. In the impugned judgment, the learned Judge found that the prosecution has clearly proved that the accused was financially hard pressed and thus proved the motive and also proved the chain of circumstance and evidence, and consequently held that the murder of Mary was committed by the accused and the same is proved beyond doubt. It is also the finding of the learned Judge that the crime was committed to take gold ornaments of the deceased and by using MO7 iron pipe, which is a dangerous weapon, the accused committed her murder and the act of robbery is also proved. It is also found that the dead body was concealed in the pit dug on the land of the accused and thus the accused has also caused disappearance of evidence in a murder case. Thus, the accused was convicted for the offences punishable under sections 302, 397 and 201 of IPC and accordingly he was sentenced to undergo life imprisonment and to pay fine of Rs.10,000/-, in default, he was directed to undergo rigorous imprisonment for 6 months, for the offence under section 302 of IPC. He was further sentenced to undergo rigorous imprisonment for 7 years and also for 2 years, respectively for the offences under sections 397 and 201 of IPC. It was ordered that the sentences shall run concurrently. It is the above finding and order of conviction and sentence that are challenged in this appeal.
8. As the appellant/accused is undergoing imprisonment in pursuance of the impugned judgment, he preferred this appeal from jail and therefore when the above appeal was admitted on 21.12.2009, this Court by a separate order directed the Registry to appoint a counsel from the panel of State Brief to prosecute the appeal and to appear for and on behalf of the appellant/accused. Thus, we heard Adv.Smt.Sherlymol Thomas, the learned counsel appointed as State Brief and we have also heard Adv.Smt.Praicy Joseph, the learned Special Public Prosecutor. Thus both in the trial court and before this Court, the appellant/accused is defended by the counsel appointed as State Brief.
9. Before considering the contentions advanced by the learned counsel for the appellant as well as by the learned Public Prosecutor and before going into the merits of the same, it is only apposite to narrate the evidence on record.
10. PW1 is one Jolly George, who was present when the inquest was conducted on the dead body of the deceased Mary and she acknowledged her signature in the inquest report prepared and accordingly the inquest report was marked as Ext.P1 through PW1.
11. PW2 is one Joseph, who is none other than the husband of the deceased Mary. It was PW2 who gave the first information to the Police, on the basis of which, Crime No.1/08 was registered in Kalloorkad Police Station. When he was examined, he had deposed before the court that on 2.1.2008 in the morning, he went to the Police Station and launched the FI statement and he identified the same. Thus accordingly, the First Information Statement is marked as Ext.P2. We have already referred to the contents of Ext.P2. During the chief examination of PW2, he deposed that he is residing at Ayavanakara along with his wife, who is the deceased herein, and four children. According to PW2, his wife was killed by the accused on 1.1.2008. He had deposed that he was having pineapple cultivation at Piravam. He used to go there by 6.30 in the morning and return by 8o’ clock in the evening. PW2 further said that he had seen his wife lastly on 1.1.2008 at about 8.30 in the morning. At that time, Mary-his wife, was wearing a nighty of light green colour. On that day, she was wearing one chain, four bangles and ear studs. The said chain belonged to PW2, her husband, since the hook of her thali chain had been broken. PW2 deposed that he knew the accused, who was residing on the eastern side and 150 m. away from their house and his wife and children used to go to the house of the accused for the purpose of taking water, milk, butter milk etc. and the accused had purchased a cow from PW2 and PW2 used to go to the house of the accused for getting the money due in that deal. PW2 says that he returned to the house after 8 o’ clock in the night on 1.1.2008. According to PW2, his son Shibin was attending a computer course and his elder daughter was studying in Calcutta and his younger daughter Bindu was studying in 9th Standard. His son used to go for classes at about 8.30 hours in the morning. His daughter Bindu usually returned to home by 4o’ clock. On the date of occurrence, after returning from his work at night only, he came to know that his wife was missing and then, he also joined with his neighbours and relatives in search of his wife. On the next day, he gave a complaint in the Police Station. It was the Sub Inspector who detected the body of the deceased, which was buried in the property of the accused. PW2 identified the nighty as the one worn by the deceased on the date of her death and the same was marked as MO1. During the cross examination, PW2 stated that he knew Thomas for the last 3-4 years and the accused used to come to their house for milking the cow. The wife of the said Thomas is working in Gulf country. PW2 has also stated that both the families are in good relationship. He does not know whether Mary had gone there either for collecting milk or for getting money. He had also stated that Mary had problem of low Blood pressure and she had collapsed once. When the Prosecutor asked a question as to whether there was nuisance of thieves in the locality, it was admitted that there were thieves like the accused. PW2 has also stated that whenever his wife goes out, the house was being kept locked as a pre-caution. On 1.1.2008, when his daughter came back from School, it was kept locked. PW2 has also stated that several persons had borrowed money from him for interest. PW2 has also stated that the ornaments of Mary were purchased by him prior to 10 or 12 years. He does not remember the pattern of the chain. Initially he had stated that the chain worn by her was having 3 sovereigns and that chain is available in the house. When PW2 was suggested that, one small chain and four bangles were given to the accused for pledging on condition that the same will be returned on the arrival of wife, he answered that, they were ready to hand over the same ; he expressed his detestation towards his wife's murderer. He had also stated that if the accused had given money, the same could have been stated by the wife. According to PW2, whenever his wife went to the house of relatives, the same could have been disclosed either through his mobile phone or through the land line, bearing number 289725. To a query from the prosecutor, PW2 answered that he had not seen the accused committing murder ; but the body was taken from the property of the accused.
12. During re-examination, PW2 has identified the chain, which was worn by the deceased, as MO2, the bangles as MO3 series (4 in numbers) and the studs as MO4 series (2 in numbers). With the permission of the court, when cross examined and suggested that the studs were not that of his wife and it belonged to the wife of the accused, the answer was that the same were taken by the accused. When it was suggested that somebody murdered Mary to take the ornaments, the answer was that he had not seen it and further stated that the ears of Mary were seen cut. During the further cross examination, when it was suggested that the above answers were given only because the dead body was dug out from the compound of the accused and when further suggested that the ornaments which were worn by the deceased were not unearthed, PW2 kept mum. PW2 has also stated that the sister of the accused was staying near to the house of the accused and on the northern side, one Sabu, Bindu, Thomas, Karthiyani, Thankappan, Gopi and Omana are residing adjacent to the nearby properties of the accused and Sheeba is residing about ½ kms. away.
13. One of the important witnesses examined by the prosecution is PW3, namely Sheeba Thankachan. PW3 during chief examination has deposed before the court that, she is residing at Kalloorkad, ½ kms. away from the house of the accused and she knew PW2 who is residing nearby. She knew the accused as well as the wife of PW2 namely Mary, who was murdered. According to PW3, she used to see Mary and she saw the said Mary lastly on 1.1.2008 at about 10.30 a.m. when she went for collecting grass from the property of Karthiyani, lying adjacent to the house of Thomas (the accused). At that time, Karthiyani was washing cloths in her property lying on the northern side of the house of the accused. PW3 has stated that, “When I stepped into for taking the sickle from the house of Karthiyani, Mary was seen on the pathway, which exclusively leading to the house of the accused". PW3 claims that she went for collecting grass and the said Karthiyani chatted with her. PW3 deposed that, “ at about 11 o' clock, a cry was heard from the house of Thomas”. On the apprehension that the accused-Thomas was beating Poppy, his son, she went to the courtyard of the house of Thomas (accused) and Karthiyani remained at the parapet. PW3 has also stated that though she had called the said Poppy, nobody responded and thereafter she called Thomas. But after a while, she saw Thomas moving, through the window and after some time, Thomas opened the kitchen door and stepped out and at that time, according to PW3, she asked why Poppy was beaten. Then he replied that, Poppy was not there. PW3 further stated that, at that time, Thomas (the accused) was heavily sweating and panting. When PW3 asked the accused as to who had cried loudly, he replied that he used to cry loudly whenever he felt sad. According to PW3, thereafter she returned to Karthiyani's property and resumed cutting grass. PW3 further stated that one Scaria (CW12), who is examined as PW5, was also seen calling Thomas. Thereafter, she went to her house. PW3 has also deposed that when she met the deceased Mary, she was wearing a green coloured nighty and on the next day, when the body of the said Mary was dug out from the property of Thomas, she identified the nighty worn by the deceased as MO1 and she realised that Thomas had admitted his guilt. During the cross examination of PW3, she deposed that she used to take the sickle from the house of Karthiyani (CW11) whenever she goes for cutting grass. PW3 has also stated that she is residing about 200 mtrs away from the house of the accused. She further stated that she has no enmity towards Mary and she did not ask the deceased Mary why she was standing in the road (a mud road starting from the tarred road, which is lying on the northern side of the house of the accused). PW3 has specifically stated that there was a steel goblet in the hands of the deceased Mary, but she has stated that the said fact has not been disclosed before the Police. The Police took her statements on three occasions. When MO1 was shown to PW3, she said that the colour of the nighty is similar to green. She has also admitted that when the RDO asked, she replied correctly. But she further deposed that when questioned for the first time, as she was perplexed, she stated the time as 12o' clock. She has also stated during the cross examination that, the body was dug out from the property of the accused and she never heard the cry of Poppy from the house of the accused and she saw deceased Mary at a distance of 50 mtrs. away and she was able to see the ornaments worn by her.
14. PW4 is the younger daughter of PW2 and the deceased, who was studying in the 9th Standard in St.Augustine School at Kalloorkad during the year 2008. According to her, she saw her mother lastly on 1.1.2008, before she left for school in the morning and her mother had worn a nighty on that day and her mother used to wear ornaments and on that day, her mother was wearing four bangles, studs in the ears and also a chain of her father ; instead of her thali chain, as the hook of the thali chain had been broken. On that day at 4 o'clock, when she came back to the house after her class, her mother was not there. So she opened the house after taking the key and she awaited her mother. After the sunset, she went to the nearby houses in search of her mother, but they told her that they did not see her mother. PW4 deposed that, at about 7o' clock, she called her aunty, Valsa, and informed the matter and accordingly, her uncle Shaji came to the house and all of them searched for her mother. According to PW4, on the next day, ie., on 2.1.2008, by noon, she came to know that her mother was murdered and the body was buried in the property of Thomas. She claims that she can identify the nighty worn by her mother ; the colour of which can be said to be green as well as blue, hence she identified MO1. She has also identified MO2 chain, MO3 series of bangles and MO4 series of ear studs. During the course of examination, PW4 has stated that her mother used to keep the house locked as a pre-caution while going outside. The pathway leading to the house of the accused is a mud road. PW4 has stated that her mother usually came back before 4 o' clock wherever and whenever she had gone out. She has also stated that, her mother used to go to the house of the accused for collecting water and to buy milk and buttermilk, the price of which was being given to the accused. When PW4 was asked whether the actual colour of nighty worn by her mother at the time of death was blue or not, she replied that it cannot be said. She is also ignorant about the pattern and weight of the chain and bangles that were worn by her mother at the particular time.
15. PW5 is one Scaria Joseph. When examined, he deposed that he was residing near the School at Marutoor and he knew the accused. He also stated that he had sold a cow to the accused on 10.12.2007, on condition of paying an amount of Rs.7,500/- within 15 days. According to PW5, at about noon on 1.1.2008, he reached the house of the accused and at that time the accused was coming from back side of his property and when he asked as to what he was doing, he replied that he was planting the pineapple saplings and further told him that the cash due to him will be given in the evening. Thereafter, on that day in the evening at about 6 ½ hours, the accused paid him Rs.5,000/- and on the next day, he was called to the Police Station. During the chief examination, he was shown 10 currency notes of Rs.500/- denomination and the same were marked as MO5 series (10 in numbers). He had also stated that he came to know on the next day that the amount given by the accused was out of the sale proceeds of the gold ornaments obtained after murdering a woman named Mary. During the cross examination, he had deposed that when he went to the house of the accused after 15 days of the sale of cow, for obtaining the money due, nobody was present there and the cow was tethered nearby. According to PW5, he had seen Sheeba, PW3, at about 11 ½ hours on that day, who was cutting grass on the northern side, but he did not speak to Sheeba as he was making a phone call. According to PW5, he was called from the Police Station at about 9 o' clock by the Sub Inspector of Police and he was directed to come to the Police station with the money he obtained on 1.1.2008 from the accused. According to him, the Sub Inspector himself had recorded his statement. He had also stated before the court that the accused had told him that the balance amount shall be given after one week and though this fact was stated before the Police, the same was not seen recorded.
16. PW6 is one Mathachan, who is the owner of Thannikkal jewellery and residing at Koothattukulam. When PW6 was examined, he had deposed that during the year 2008, the Police came to his jewellery shop and seized certain gold ornaments. According to PW6, there were three employees working in his shop as salesmen, namely Rajesh, Roy and Gireesh. PW6 deposed that, in the shop, gold business is being carried out ; old ornaments are replaced with new ones. Though PW6 was not going to the shop on all days, the day-to-day accounts will be furnished to him by the said Rajesh. On 3.1.2008, the Police came to his shop along with a person and PW6 identified the said person as the accused who was present in the court and the Police seized the ornaments from his shop. He had also stated that he can identify the ornaments given to the police. Thus he had identified MO2 chain and MO3 series of bangles. During the cross examination, it was deposed by PW6 that the accounts are prepared by Girish and the same are furnished by Rajesh. He had also stated that, he did not see the accused selling the gold ornaments and he further stated that, what all ornaments given to the police are the one that had taken out by his workers from the shop. He does not remember how many police persons were present at that time. PW6 has also admitted that when the accused brought the gold ornaments to his shop for sale, the same were received by Rajesh.
17. PW7 is one Maria Jose, who is the neigbour of the accused. When examined, she had deposed that she is residing at Kalloorkad and she knew the accused, who is her neighbour. She further stated that she knew Mary-the deceased and she had lastly seen Mary on 1.1.2008 at about 11 a.m., at a far away distance, near to the house of Thomas-the accused. PW7 has also stated that, when she was going to the homestead, she saw Mary, within a distance of 10 feet, in the pathway, which is a mud road that exclusively leading to the house of Thomas and she was going to the house of Thomas. At that time, PW7 was going to her farm, which was situated some distance away from that place. According to PW7, thereafter she heard the news about the death of Mary. During the cross examination, PW7 deposed that her parental house is situating in some distance away from one parambu, the extent of which will come to one acre. She had deposed that her husband is doing pineapple business at Irinjalakkuda and he starts for work at about 6.30 in the morning. She has also stated that she had given her statement to the Police at about 12 o'clock when she was returning from Church and she was not remembering the exact date and time, as she was not having watch at that time to note down the exact time. PW7 also stated that she had no inimity towards Mary, but she did not speak to Mary as she was not her immediate neighbour.
18. PW8, Rajesh, is the employee of PW6-the jewellery shop owner. When PW8 was examined, he had deposed that he is residing at Koothattukulam and working as salesman in a jewellery shop, named Thannickal jewellery, for the last 10 years. According to PW8, on 3.1.2008 after 9 o' clock, four Policemen came to the shop and he had shown to the Police the gold ornaments sold by the accused. He was told by the Police that the gold ornaments were belonged to a victim of a murder case and the murderer was also brought by the Police to the shop. PW8 has deposed that he can identify the person, who sold the gold ornaments in the jewellery and thus he identified the accused. The gold ornaments given by the accused, ie., four bangles and one chain, were seized by the police. The gold ornaments were sold to them on 1.1.2008. There were two salesmen and an accountant, including himself, one Roy @ John Abraham and one Girish T.M. The owner of the jewellery shop is one Mathachan. According to PW8, three bangles were of same fashion, but one is of different type and the chain was in 'thara' pattern. PW8 has identified the chain as MO2 and the four bangles as MO3 series. According to PW8, on that day, himself and Roy were present in the shop. He had deposed that the person, who brought the ornaments on 1.1.2008 to the shop, had said that he was from Kalloorkadu and the gold was being sold for a property dealing. He had worn a dhothi at that time. The ornaments were having a total weight of 34½ gms and a total sum of Rs.33,050/- was paid as sales consideration. He had also stated that the person, who came along with the Police, was the person who had sold the ornaments. According to PW8, he put his signature in a mahazar prepared by the Police, for the seizure of Mos.2 and 3 series and he identified the mahazar as Ext.P3. During the cross examination, he had stated that at the time of joining as salesman in the jewellery, Roy and Girish were also working in the same jewellery and he had been working there for the last 10 years. PW8 admitted that the statement of accounts was usually prepared by Girish and the bills were usually prepared by himself. According to him, there is valid licence for trading gold, but he had not seen it. When the police came to the shop, people crowded there. There was a news item regarding the incident in the Mangalam daily. He deposed that the jewellery opens at about 8.45 in the morning and closes by 7 o' clock in the evening.
19. PW8 was re-called on 30.4.2009 and he was again examined in chief. Thus during the chief examination, PW8 deposed that the details of the gold ornaments sold by the accused were mentioned in the bill. He further stated that, in page no.25 of Ext.P34 book, it is seen recorded that on 1.1.2008 one chain and four bangles having total weight of 34.490 gms. were purchased from one Thomas, Chirattolickal house, Kalloorkad and the amount was rounded and thus given Rs.33,050/-. Bill no.25 is identified as Ext.P34(a). The copy of the same was given to Thomas (the accused) and the same is marked as Ext.P8. During the further cross examination, PW8 has admitted that Ext.P34 book was produced after one week from the date of the incident. When he was questioned as to how many books are there like the present one, he answered that he is not aware of that, since it was handled by the Accountant and he had prepared only one bill in Ext.P34 book, since the accountant was absent during that particular period. He also deposed that he had produced the bill book in the Police Station as demanded by the Police. He does not know the amount given towards sales tax. PW8 also deposed that the documents were produced before the sales tax authorities by Gireesh, the Accountant.
PW8 has categorically stated that the transactions that occurred after 1.1.2008 were endorsed in another book and Ext.P34 book was produced before the Police.
20. PW9, a provision shop owner, was examined by the prosecution to show that the accused used to purchase provisions from his shop and on that account, the accused was indebted to him for an amount of Rs.7,222/-. According to PW9, he was conducting provision shop at Kalloorkadu and he knew the accused, who is residing adjacent to his house. According to PW9, the accused had not paid the due amount till the beginning of December 2007 and though he had asked for the same on several occasions, the accused sought time on 3 to 4 occasions and finally told him that the amount will be paid by 1.1.2008 ; but not paid on that day also. During the cross examination, he said that he was conducting the shop for the last 3½ years and he was selling all provision items. The accused started an account in his name 3 months back. PW9 is keeping a book showing the account. According to him, provisions are being given on credit basis for 10-30 persons. The accused has paid Rs.3,000/- on one occasion, within a period of 3½ years. He had asked for the due amount at least for ten times, before the debt accrued as Rs.7,222/-. PW9 claims that his statement was recorded at his shop and he does not remember the exact date. He had also stated that the book in which the due amounts are recorded was not shown to the Police. When it was suggested to PW9 that he had not shown the credit book to the police as the book did not contain the details of 30 persons who had purchased the provisions on credit basis, ; his answer was that he is ready to show the book at present.
21. PW10 is one K.A.Sreedharan, who is conducting a provision store at Kalloorkkadu junction. When he was examined, he had stated that he knew the accused who was residing adjacent to his residence. According to PW10, there was a credit account in the name of the accused at the shop. According to PW10, the accused used to purchase provisions on credit basis and an amount of Rs.12,518/- was due to him and he demanded the same on several occasions and the accused offered to give the same. According to PW10, he supplied provisions to the accused on credit basis only upto 17.10.2007. Thereafter, the accused demanded PW10 some money for paying school fees of his son. As PW10 denied the same, the accused requested him to give his golden ring and that ring was not returned and PW10 was told that the same was pledged. During the cross examination, PW10 stated that the accused re-paid the due amounts in instalments. According to him, one day, the accused gave him Rs.7,000/- out of the due amount of Rs.19,518/-. He had also admitted that, while he gave the golden ring to the accused, the said amount was in due. On that day also, according to PW10, when he indicated about the due amount, the accused replied that his wife had gone abroad and she would send money by way of cheque. PW10 denied the suggestions that the accused was not indebted to him for an amount of Rs.12,518/- and the claim that, he had handed over the golden ring to the accused.
22. PW11 is another witness produced and examined by the prosecution to show that the accused had borrowed money. When PW11 was examined, he deposed that he is residing at Muvattupuzha and he knows the accused. He had also stated that Rs.15,000/- has been borrowed from him by the accused during the year 2007. A sum of Rs.2,250/- was repaid and an amount of Rs.12,750/- is due. According to PW11, a person in the shop introduced him to the accused. According to PW11, he is conducting money lending business. During the cross-examination, PW11 deposed that the money was given by his parents and he conducts textile business also. His father is a farmer and he is engaged in agricultural work in Erode District in Tamil Nadu and the agricultural operations are with respect to vegetables, cotton, sunflower and chana. According to PW11, his parents have two children, one is elder to him, employed in a company at Thirupur and 10 years are over after reaching Kerala and he is residing on rent. He said that he has no money lending business at Velloorkunnam and there might be one or two other persons doing money lending business. PW11 stated that for thousand rupees, Rs.900/- will be paid and Rs.100/-will be taken back. According to him, he had given money to the accused on an earlier occasion also, during 2007 and the said amount is to be repaid within 90 days. They had given loan in ten houses in the locality and he does not know the addresses. Thousand rupees each is given to them. Maximum amount lent is Rs.15,000/- and that was given to Thomas (the accused). According to him, he was questioned in the Police Station.
23. PW12 is one Jiby, who is a resident of Kalloorkkad. According to PW12, he knows the accused, who is a neighbour. He also knew Mary. As per his version, when the Police came to the house of Thomas on 2.1.2008, he was also present there. According to him, on that day, he put his signature in a document prepared by the Police. Scene mahazar was shown to him. He identified his signature contained therein. Accordingly, the scene mahazar was marked as Ext.P4. He had also stated that on that day, he had seen the Police taking certain articles, namely, a tray, knife, lungi and a spade. He deposed that he can identify the same on seeing it and thus, he identified the tray as MO6, the knife as MO7. According to him, MO6 contains blood stain. He identified MO8 as the said spade. He had also identified green colour lungi as MO9. PW12 also stated that one pair of studs, an iron pipe, certain currency notes, receipt of Thannikkal Jewellery for sale of gold etc. were also taken.
He identified his signature in Ext.P5-seizure mahazar, for iron pipe, which is identified as MO10. He had also identified his signature in Ext.P6 prepared for the seizure of MO4 series of studs and he also identified the studs. PW12 also identified his signature in Ext.P7 mahazar prepared for the seizure of Ext.P8 receipt. He also identified Ext.P9 mahazar for the seizure of currency notes worth Rs.26,500/-. During the cross-examination, PW12 deposed before the court that he is a worker in a toddy shop and his work will commence at 8 a.m. and the same will be over by 8 p.m. He had also stated that all the signatures in the documents were put, while he was at the house of the accused Thomas. He does not know the name of the Police, who had written those documents. According to him, he had studied up to PDC. He had also stated that firstly the tray was taken and after preparing a mahazar, next items were taken. For writing the mahazar, half an hour was taken. He also stated before the court that on that day, he had not gone for work. PW12 also stated that after lunch, the Police came and on the next day morning also, Police came there at 10.30 a.m. Thereafter, the mahazar was prepared for the seizure of tray. He returned home after sunset. When PW12 was suggested that he put his signature in the mahazar, with respect to the articles allegedly taken from the kitchen, while at the Police Station, he denied the same. He had also denied both the suggestions that all the articles shown to him were taken from the house of the accused and also that he was deposing as instructed by the Police.
24. PW13 is a Doctor by profession and when he was examined, he deposed that he was working in the Archana Hospital at Thodupuzha as Neurologist. He had stated that the deceased Mary's blood group is 'B' as per the hospital records and he had produced the case sheet, but the same was taken back. He had identified the attested copy of the case sheet with respect to Mary Joseph, Puthanpurackal, Kalloorkkad dated 17th February, 1995 with blood group B Rh-ve. PW12 was again summoned and sworn again on 24.4.2009 and thus, PW12 has stated that the case sheet, with respect to the treatment given to Mary, has been produced which he identified and marked as Ext.P10. According to PW12, the blood group of Mary was group 'B'. According to him, the case sheet shown to him was kept in the hospital under his custody. During the cross- examination, he deposed that he examined the person during the month of February 1995 and according to him, the blood group of a person will never change.
25. PW14 is an appraiser by profession attached to KSFE, Muvattupuza and he was examined on 15.4.2009. Subsequently, he was recalled and examined on 24.4.2009 and he deposed that the gold ornaments belonging to the deceased Mary were weighed and thereafter, the related documents were furnished to the court. During cross- examination, he stated that the documents he had furnished were with respect to the articles seen in the court.
26. PW15 was then working as Assistant Professor of Forensic Medicine, Medical College, Alappuzha, who conducted the postmortem examination of the body of Mary, aged 42 ; the deceased in Crime No.1 of 2008 of Kalloorkadu Police Station. When he was examined, he deposed that he had issued a postmortem certificate, which bears his signature and office seal, and thus, Ext.P11 Postmortem certificate was identified and marked through him. In Ext.P11 Postmortem certificate, the following antemortem injuries are noted by him.
“1. Contusion 7x4x0.6 cm on right side of front of neck and adjoining middle of under chin. The underlying soft tissues and strap muscles at a level 1 cm. above their lower attachments, were contused. The thyroid cartilage was found vertically fractured in the middle and separated, its margin had a crushed appearance (revealed on flap dissection done in a bloodless field).
2. Abraded contusion 2x0.8x0.3 cm. on left side of outer aspect of lower lip inner end in the midline.
3. Contusion 1x1x0.5 cm on right side of inner aspect of lower lip corresponding to the canine tooth.
4. Lacerated wound 1.5x1x0.5 cm on right side of face 1 cm. in front of tragus of right ear.
5. Contusion of scalp 12x3x1 cm. on right side and adjoining back of head, obliquely placed just about top of ear with its front upper extent in the forehead region 1 cm behind outer end of right eyebrow.
6. Contusion of scalp 9x4x0.5 cm. on left side of top of head 12 cm above outer end of eyebrow. The brain showed diffuse subarachnoid and subdural haemorrhage with flattening of gyri and narrowing of sulci.
7. Incised wound 1.5x1x0.4 cm. horizontal on front of right ear lobule.
8. Incised wound 1.5x0.5 cm. involving full thickness of left ear lobule. Injury Nos.7 and 8 showed minimal antemortem features.
9. Contusion 10x9x2 cm. on middle of back of trunk just below root of neck.
10. Contused abrasion 2x1 cm. on back of left hand overlying roots of middle and ring fingers.”
PW15 has opined in Ext.P11 that the cause of death was blunt injuries sustained to the head and neck. He deposed before the court that injury Nos.1,4,5 and 6 are sufficient to cause death. He had also stated that these injuries can be produced by an iron pipe and on showing MO10 iron pipe, he agreed the said suggestion. According to PW15, injury Nos.7 and 8 can be produced by a sharp cutting weapon and when MO7 was shown to him, he affirmed the same. During the cross-examination, PW15 has stated that, more than four hours are required to complete the rigor motis in a human being and by 18 to 25 hours, it starts to disappear. According to PW15, rigor motis were seen only on the ankles. PW15 has further stated that the time of death is calculated on the basis of the postmortem findings. According to PW15, he had not noticed the injuries consequent to the fall on pushing down. PW15 further deposed that the partly digested food particles could be of her lunch. According to him, the weapon used was hard, blunt and heavy object. MO7 weapon is rather sharp. When it was suggested to PW15 that, none of these injuries can be caused by using hollow iron pipe, he answered that it is immaterial whether it is hollow or not and he stated that the weapon shown to him in the court, can produce those injuries and he cannot say the exact time required for digestion.
27. PW16 was the then Village Officer of Kalloorkkad Village and when examined, she deposed that after reaching the place of occurrence, she had prepared the site plan which contained her signature and office seal and thus Ext.P12 site plan was marked through PW16. She denied the suggestion that it was prepared on the basis of the mahazar prepared and given by the Police.
28. PW17 is working as S.I. of Police, Kalloorkkad Police Station. When examined, he deposed that at 9 o' clock on 2.1.2008, Joseph-PW2 came to the Police Station and told that his wife Mary was missing. On the basis of his statement, Crime No.1/2008 was registered under the caption 'woman missing'. Thereafter, the initial investigation in the above crime was undertaken and as part of the same, he conducted investigation in the house of the informant and the neighbouring places and thus, one Maria Jose-PW7 told him that when she was going for taking rubber sap at 11 o' clock on 1.1.2008, she had seen Mary standing in the pathway leading to the house of Chirattolickal Thomas. According to PW17, on questioning Karthiyani-CW11, who is a neighbour of the accused, she deposed that at about 11 o' clock on 1.1.2008, she heard a cry from the house of Chirattolickal Thomas. According to PW17, he went to the house of Thomas and when questioned him about Mary, he gave contradictory and inconsistent version and his conduct created doubt in his mind and therefore, the said Thomas was brought to the Police Station and he was subjected to thorough and detailed examination. Thus, according to PW17, the said Thomas told him that on 1.1.2008, in the morning after 11 o' clock, when Mary came to his house for collecting buttermilk, he asked Mary to take the same from the kitchen and thereafter, when the deceased Mary entered into the middle room through the doors of the kitchen, he pushed her from behind to the middle room and thereafter, by using the iron pipe, which was kept by him, inflicted a blow on her head and thereby, murdered her. The said Thomas further revealed that he had done this to get the gold ornaments of Mary. According to PW17, the accused further told him that the dead body of Mary was buried in his property at a place towards the southern side of his house. So, according to PW17, immediately thereafter, he went to the place of occurrence and on inspection of the place of occurrence, he got convinced that what was stated by the accused is correct and accordingly, he deputed the Head Constable Vijayan for guard duty and for the purpose of conducting the inquest, he caused to send a letter to the R.D.O. He had also stated that for examining the place of occurrence, a letter was sent to the scientific expert and another letter was given to the finger print bureau for taking finger prints. According to PW17, since it was a grievous crime, express report was prepared and sent to the higher officials. Thereafter, he prepared a report deleting the caption 'woman missing' and incorporated Sections 302,397 and 201 of the I.P.C. and sent the said report to the court. PW17 has deposed that he had also filed a report showing the full and correct address of the accused. Since the further investigation was to be conducted by the C.I. of Police, according to PW17, he sent a letter to the C.I., who undertook the further investigation. According to PW17, at the time of inquest, he had rendered requisite assistance to the R.D.O. He identified the F.I.R. and marked the same as Ext.P13. He had also identified the report by which Sections 302, 397 and 201 were incorporated and the same was marked as Ext.P14. During the cross-examination, PW17 deposed before the court that the FIR was registered at about 9.30 on 2.1.2008. He had also deposed that, investigation was conducted in the house of the de facto complainant and in the surrounding area. According to him, after locking the house, Mary used to place the key at a particular place. On 2.1.2008 itself, PW17 took the statements of the persons and as per their version, they had lastly seen Mary at about 11 o' clock on 1.1.2008. The husband of the
chain having 3 sovereigns weight. He had also stated that he informed the C.I. about the missing of his wife in the next morning itself. The R.D.O. came at 10 o' clock. The dead body was exhumed after the arrival of the R.D.O. There were cases of theft in the locality. The accused was taken into custody at about 11 o' clock on 2.1.2008. It was suggested to PW17 that he obtained the confession statement after brutally torturing the accused, but he denied the same. It was also suggested to him that the accused Thomas was treated as accused, as it was difficult to trace out the real accused. But, PW17 denied the same. It was also suggested that someone else had killed the deceased and buried the body in the property of the accused, but that was also denied by PW17.
29. PW18 is a Police Constable and when examined, he deposed that during the relevant period, he was working in Kalloorkkad Police Station and he put his signature in the mahazar prepared for the seizure of gold purchase register. Thus, Ext.P15 mahazar is marked through him. During the cross-examination, he stated that he put his signature at the office of the C.I. of Police. He had also stated that he does not know as to who prepared the same. With the permission of the court, he was again questioned, during which he deposed that the C.D. containing photographs of the deceased Mary, taken at the time of her marriage, wearing the ornaments, was also seized, for which mahazar was prepared. The same is marked as Ext.P16. Ext.P17 mahazar is also marked through PW18, with respect to the seizure of account book pertained to the provisions purchased by the accused. During the cross-examination, PW18 deposed that he had not seen the C.D. played.
30. These are the evidence referred to by the learned Sessions Judge in the impugned judgment, which relied on by him in support of his findings and for convicting the appellant/accused.
31. Learned counsel for the appellant vehemently submitted that though the prosecution case is based upon circumstantial evidence, the prosecution has miserably failed to prove and establish each of the circumstances supported by evidence. In order to substantiate the above contention, the learned counsel has taken us through the evidence on record. It is pointed out by the learned counsel that, according to PW7, she had seen the deceased Mary at 11 a.m., but in the F.I.statement of PW2, he says that PW7 was said to have seen Mary at 12 noon. It is also pointed out by the learned counsel that PW3 is an inquest witness as well and it is seen recorded in the inquest report that she had seen Mary at 12 noon. But when PW3 was examined in chief, she stated that she had seen Mary at 10.30 a.m. At the time of cross-examination, PW3 stated that she had seen Mary standing in the pathway leading to the house of the accused. It is also pointed out that PW3 had deposed before the court that at about 11 o' clock, she heard a cry. The learned counsel pointed out that PW3 deposed before the court that at the time when she had seen Mary, Mary was holding a goblet. According to the learned counsel, it was an improvement made by PW3 when she was examined in the court, since in her statement before the Police, she has no claim that she had stated before the Police that she had seen the goblet in the hands of the deceased. So, according to the counsel, PW3 cannot be believed, as she is a highly interested witness. The learned counsel has also argued that as per the version of PW3, she had noted the presence of PW5, when herself and CW11 were talking. Thus, according to the learned counsel, if the prosecution case is correct, the murder had taken place and the body was buried at the time when PW5 was available at the scene and at the time when Pws.3, 5 and CW11 were present in the location. So, according to the learned counsel, it cannot be believed that the accused has committed the offence and buried the body of the deceased in his property at the time as alleged by the prosecution, behind the back of those witnesses. It is also argued by the learned counsel that there is no positive evidence to show that the deceased had entered into the house of the accused. In order to substantiate the above point, the learned counsel submitted that no footwears or anything belonging to the deceased were seized by the Police from the house of the accused. It is also pointed out that though PW3 deposed before the court that the deceased was holding a goblet at the time when she was seen on the pathway, which is leading to the house of the accused, no such goblet was also seized by the Police. So, according to the learned counsel, the prosecution has miserably failed to prove that the deceased was found in the house of the accused or to prove the presence of the deceased in the house of the accused. It is also contended by the learned counsel that regarding the time of death, there is no cogent evidence. It is pointed out by the learned counsel that according to the prosecution, the death had occurred at 11.10 a.m. However, PW5 came to the house of the accused at noon and therefore, according to the learned counsel, it has to be presumed that the body was buried before the arrival of PW5. But, for the same, there is no evidence and the same is practically impossible as well. The learned counsel also invited our attention to the deposition of PW2 and submitted that in Ext.P2, PW2 stated that he had gone from the house at 6.45 a.m. for doing his agricultural work, but, when PW2 was examined in chief, he stated that he had gone to Piravam side at 8.30 a.m. It is also the case of the learned counsel that PW3 during her 161 statement and in the statement recorded at the time of inquest, mentioned 12 o' clock as the time at which she had seen the deceased. But, during the chief examination, PW3 stated that it was at 10.30 a.m. Similarly, the learned counsel has pointed out that PW7 has also stated in the chief examination that she saw the deceased at 11 a.m. But in the 161 statement and in Ext.P1 inquest, the time was stated as 12 o' clock by PW7. So, according to the learned counsel, the claim of PW3 and PW7 that they had seen the deceased Mary on 1.1.2008, cannot be believed. In order to substantiate the above case of the learned counsel, it is submitted by her that, none of these witnesses, i.e., PW3 or PW7, though they claimed to have got acquaintance with the deceased, did not speak anything to the deceased. The above conduct of the witnesses cannot be believed, since according to the learned counsel, the same are against the natural conduct of local witnesses. The learned counsel has also pointed out that recovery of gold from the shop of PW6 cannot be believed, particularly when, PW6 was not present or he did not see the factum of recovery of gold. It is also pointed out by the learned counsel that, PW8, in his deposition did not mention the time at which the gold was recovered. It is also pointed out that, PW2 had stated that the weight of the chain was 3½ sovereigns as per his version in Ext.P2 FI.statement. But, during his examination, he changed his version and deposed that the weight was only 1½ sovereigns. He also stated that the chain belonged to PW2 himself and was not that of the deceased. So, according to the learned counsel, the evidence of the prosecution with respect to the recovery of gold cannot be believed. According to the learned counsel, no evidential value can be attributed to the seizure of MO7 knife, MO8 spade, MO9 lungi and MO10 iron pipe, since no blood stain was found on the above material objects. It is the further submission of the learned counsel that, even as per Ext.P13 report, it cannot be said that the crime was committed inside the house of the accused, since no incriminating materials were detected from the house of the accused. It is also the case of the counsel that the prosecution case, that the accused committed murder of the deceased in his house and buried the body in his property within one hour, cannot be believed, since the same is practically impossible. The learned counsel has also submitted that the injury noted by PW15 in Ext.P11 postmortem certificate could not be inflicted by using MO10 iron pipe, since it has only 92 cms. length and 9 cms. width. It is also argued that non-examination of CW28 and CW11, who are material witnesses goes against the prosecution. According to the learned counsel, the prosecution documents are not clear with respect to the inquest and the registration of the FIR etc. So, according to the learned counsel, the prosecution has miserably failed to prove the allegation against the accused, since they failed to establish each and every circumstances relied on by them and also, as the proved circumstances are not complete so as to form a complete chain pointing towards the guilt of the accused alone.
32. Per contra, the learned Public Prosecutor vehemently submitted that the prosecution has established the most important circumstance that the deceased was found in the road leading to the house of the accused and the deceased was found moving towards the house of the accused. It is also the case of the learned Public Prosecutor that, PW3 heard a cry from the house of the accused after they saw the deceased on the pathway leading to the house of the accused. The learned Public Prosecutor has also argued that the accused was present in the house at the relevant time. It is also pointed out that the body of the deceased was exhumed from the property of the accused and the body was located very adjacent to the house of the accused. The learned Public Prosecutor submitted that the gold ornaments belonging to the deceased were recovered from the jewellery shop on the basis of the confession statement of the accused and the gold studs belonging to the deceased were also recovered from the property of the accused on the basis of the confession statement made by him. It is also stated by the learned Public Prosecutor that the currency notes which are the sale proceeds of the gold ornaments belonging to the deceased were also recovered from the house of the accused, that too on the basis of his own confession statement. It is also argued that the prosecution has succeeded in adducing evidence to prove the motive alleged by the prosecution against the accused for committing the murder of the deceased and for getting the gold ornaments from her body. So, according to the learned Public Prosecutor, these proved circumstances are complete and pointing towards the guilt of the accused. The learned Public Prosecutor on the basis of the decision reported in Tulsiram v. State [AIR 1954 SC 1] has submitted that the time factor in the present case is a very relevant material and the available evidence is that the deceased was found near the house of the accused and the gold ornaments belonging to the deceased were recovered on the next day itself and the body of the deceased was exhumed from the property of the accused on the next day of her murder. It is also pointed out by the learned counsel that the accused failed to offer any convincing or plausible explanation for the recovery of gold ornaments at his instance and also failed to give any explanation for the recovery of money from his house, which was the sale proceeds connected with the sale of gold ornaments belonging to the deceased. So, according to the learned Public Prosecutor, the accused has miserably failed to offer any convincing explanation for the recovery of the ornaments from the possession of the accused, which is also a circumstance, that goes against the defence and in support of the prosecution case. Thus, according to the learned Public Prosecutor, the trial court has correctly found in favour of the prosecution and against the accused and the appellant has miserably failed to make out any ground to interfere with the findings of the court below and therefore, the appeal is liable to be dismissed.
33. Having regard to the facts and circumstances involved in the case and in view of the evidence and materials on record and particularly in the light of the rival contentions advanced by the learned counsel for the appellant and the learned Public Prosecutor, the points to be considered are whether the trial court is justified in its findings and convicting the appellant for the offences punishable under sections 302, 397 and 201 of IPC and whether the prosecution has succeeded in establishing its allegations and proving the charges against the appellant beyond reasonable doubt.
34. At the outset, it is to be noted that, even according to the prosecution, they have no case that they got direct evidence to prove the charge against the accused and therefore, admittedly, they are relying upon certain circumstances to discharge their burden and to prove the case against the accused. We notice that in the impugned judgment, the learned Sessions Judge has not made any attempt to enumerate the circumstances with clarity, that relied on by the prosecution to prove its case. Of course, in paragraph 23 of the impugned judgment, the learned Judge has casually referred to certain circumstances. Before going into the details, let us consider the settled position of law and the precedents in a case where the prosecution depends upon the circumstantial evidence. In Sharad Birdhichand Sarda Vs. State of Maharashtra (1984 SCC (Crl) 487), after referring to the earlier decisions of the Honourable Supreme Court, it is held that the following conditions, which are called “panchasheel”, are to be fulfilled, in order to hold that a case against an accused can be said to be proved on circumstantial evidence and the conditions are :
(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established,
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (emphasis supplied).
Similarly, in the decision in Sanatan Naskar and another vs. State of West Bengal reported in [(2010) 3 SCC
(Crl) 814] the honourable Apex Court has held in paragraph 27 as follows,
“ There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eyewitness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eyewitness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles in that regard.”
35. Now let us consider the circumstances relied on by the prosecution in the present case. On a close scrutiny of the entire prosecution case and its evidence, we can see that, one set of evidence adduced by the prosecution, is with respect to the recovery effected under section 27 of the Evidence Act, based upon the alleged confession statement of the accused. The recoveries thus effected on five occasions are as follows : (1) The first recovery effected by the prosecution, as per the so called confession statement of the accused, is the gold ornaments, ie., MO2 gold chain and MO3 gold bangles (4 in numbers). (2) The second recovery is with respect to the gold studs, MO4 series. (3) Another recovery effected by the prosecution is with respect to the currency notes for a total sum of Rs.26,500/-. (4) MO10 iron pipe was also recovered on the basis of the confession statement allegedly made by the accused. (5) Similarly, Ext.P8 bill was also recovered as per the confession statement of the accused. Thus, if the circumstances, with respect to the above referred five recoveries, are excluded, what remained are the following circumstances :-
1) The deceased was found between 10.30 and 11 o' clock in the morning on 1.1.2008 on the pathway leading to the house of the accused.
2) At about 11 o'clock on 1.1.2008, a cry was heard from the house of the accused.
3) The body of the deceased Mary was found buried and it was exhumed from the property of the accused, which is very adjacent to the house of the accused.
4) The motive for the murder.
Therefore, the further question to be considered is that even if the above circumstances and the other circumstances connected with the recovery under section 27 of the Evidence Act are taken as proved and established, whether it can be safely concluded that the prosecution has discharged its duty and proved the guilt of the accused beyond reasonable doubt, particularly in view of the decisions cited supra.
36. In the present case, the circumstances relied on by the prosecution can be summarised as follows :
(a) On the date of missing of the deceased Mary, between 10.30 and 11 o'clock in the morning she was found standing on the road or moving along the road which is leading to the house of the accused.
(b) At about 11 o' clock, a cry was heard from the house of the accused.
(c) The body of the deceased Mary, which was buried, was exhumed from the property of the accused, adjacent to the house of the accused.
(d) The gold ornaments (namely Mos.2 and 3) worn by the deceased, while she was lastly seen alive, were recovered on the basis of the confession statement of the accused.
(e) MO4 gold studs worn by the deceased were recovered on the basis of the confession statement of the accused.
(f) Recovery of Ext.P8 bill, as per the confession statement of the accused, by which the accused sold Mos.2 and 3.
(g) Recovery of currency notes of Rs.26,500/- being the sale proceeds of Mos.2 and 3 gold ornaments as per the confession statement of the accused.
(h) Recovery of MO10 iron pipe on the basis of the confession statement of the accused.
(i) The seizure of incriminating materials, such as blood stained MO6 tray, MO7 knife, MO8 spade and MO9 lunki from the house of the accused as per the scene mahazar ; and finally,
(j) The motive for obtaining the gold ornaments from the body of the deceased, so as to cater his need for money.
37. So, the next question to be considered is whether the prosecution has succeeded in establishing the circumstances so relied on, so as to conclude the guilt of the accused and whether the chain of evidence is complete without leaving any reasonable ground for the conclusion, inconsistent with the innocence of the accused and whether the circumstances and evidence so established by the prosecution, exclude every possible hypothesis, except the guilt of the accused and finally whether the circumstances so established are conclusive in nature and it tended towards the guilt of the accused alone.
38. In order to appreciate the circumstances so relied on by the prosecution and for the sake of convenience, the circumstances referred to above as (d) to (h) can be categorized as one group, since all the same are connected with the recovery of certain materials on the basis of the alleged confession made by the accused. Whereas, the other circumstances that relied on by the prosecution to prove the guilt of the accused are as follows :-
(i) the deceased was found on the road leading to the house of the accused and the deceased was found moving towards the house of the accused.
(ii) PW3 heard a cry from the house of the accused after they saw the deceased in the pathway leading to the house of the accused and the accused was present in the house at the relevant time.
(iii) the body of the deceased was exhumed from the property of the accused and the body was located very adjacent to the house of the accused.
(iv) the prosecution has succeeded in adducing evidence to prove the motive alleged by the prosecution against the accused for committing the murder of the deceased and for getting the gold ornaments from her body.
39. Thus, we now propose to consider the above referred four circumstances. The first circumstance relied on by the prosecution to implicate the accused in the above crime is that the deceased Mary was found between 10.30 and 11 a.m. on the pathway exclusively leading to the house of the accused. To prove the above circumstance, the prosecution mainly depends upon the evidence of Pws.3 and 7. We have already referred to the deposition of Pws.3 and 7. Both Pws.3 and 7 are more or less neighbours to the deceased as well as the accused, as per their versions. As rightly pointed out by the learned counsel for the appellant, there is no consistency in their evidence as to the exact time at which they saw the deceased. PW3 in her 161 statement as well as in the statement given at the time of preparation of Ext.P1 inquest, has mentioned the said time as 12 o'clock. However, in the chief examination, she had stated the time as 10.30 a.m. Similarly, PW7 also had stated the time as 12 o'clock in 161 statement and in Ext.P1 inquest. But in the chief examination, she stated the time as 11 a.m. So, a scrutiny of evidence of Pws.3 and 7 would show that they wanted to improve the stand with respect to the time when they were examined in the court. Firstly, in the chief examination of Pws.3 and 7, the time was stated as 10.30 a.m. and 11 a.m. respectively. In the present case, the above variation with respect to the time factor, according to us, is very relevant, since as per the prosecution case, the death had occurred at 11.10 a.m. and before the arrival of PW5, the body of the deceased was alleged to have been buried by the accused. So, on the crucial aspect, particularly, the time at which Pws.3 and 7 saw the deceased lastly, there is no consistency in their evidence. It is also pertinent to note that as claimed by Pws.3 and 7, they are neighbours of the deceased. Being local witnesses and neighbours of the deceased, particularly when Pws.3 and 7 are ladies, it is only quite natural and reasonable for them to have an interaction with the deceased Mary, if actually they had seen her. But it is strange enough to note that none of these witnesses had asked the deceased about her wellbeing or vice versa. It is already brought on record that neither PW3 nor PW7 has got any animosity, so as to keep away from chatting with the deceased even though they are neighbours. Therefore, in the light of the above facts and circumstances and the particular conduct of the witnesses, which is against the natural human conduct, according to us, much reliance cannot be placed on the depositions of Pws.3 and 7. If that be so, it cannot be said that the prosecution has succeeded in establishing, with cogent and satisfactory evidence to prove the first circumstance that the deceased was found alive between 10.30 and 11 a.m. on 1.1.2008, the date on which the deceased was allegedly found missing on the pathway leading to the house of the accused.
40. For the sake of argument, even if it is considered that, the first circumstance has been established by the prosecution, we are of the view that, the same is not sufficient to connect the accused with the murder of the deceased Mary. None of the witnesses, namely PW3 or PW7 had stated that they have seen the deceased Mary entering into the house of the accused. No other evidence is adduced by the prosecution to show that the deceased Mary had entered into the house of the accused from the pathway, where the deceased was claimed to have allegedly seen by Pws.3 and 7. In the absence of direct evidence, it is incumbent upon the prosecution to prove beyond reasonable doubt that the deceased Mary had gone inside the house of the accused. So, there is a missing link in the prosecution case. At this juncture, it is also pertinent to note that the prosecution has no case that the deceased Mary was lastly seen in the company of the accused. Had the prosecution got such a case that the deceased, after she was found in the pathway leading to the house of the accused, had gone to the house of the accused and was seen in the company of the accused, the position would have been a different one. Under the circumstances, it is for the accused to give proper explanation as to how the deceased Mary got missing or murdered. It is equally important to note that the prosecution has not adduced any evidence to positively prove that, at that point of time, the accused alone was in his house. As per the version of PW5, he had seen the accused coming from the property. Even PW3 has no claim that she had gone inside the house of the accused. So, we are of the definite opinion that even if the evidence of Pws.3 and 7 are taken as correct and accepted that the deceased Mary was found on the road exclusively leading to the house of the accused, the chain of circumstance is incomplete so as to warrant a finding against the accused.
41. Another circumstance which we referred above and relied on by the prosecution is the sound of cry that was heard at about 11o’ clock on 1.1.2008 from the house of the accused. In order to prove the above fact and circumstance, the prosecution has relied upon the evidence of PW3. PW3 in her chief examination has stated as follows, “…….Karthiyani chatted with him. After 11o’ clock, a cry was heard from the house of Thomas. I apprehended whether Thomas (the accused) was beating his son Poppy. I went to the courtyard of the house of Thomas and Karthiyani remained at the parapet. I called Poppy, but nobody responded and thereafter I called Thomas. After some time, I saw Thomas moving, through the window and after some time, Thomas opened the kitchen door and stepped down and at that time, I asked why Poppy was beaten, then he replied that, Poppy was not there.”
PW3 further stated that, on that day, Thomas (the accused) was heavily sweating and panting. When PW3 asked the accused as to who had cried loudly, he replied that he used to cry loudly whenever he felt sad. According to PW3, thereafter she returned to Karthiyani and resumed cutting grass. From the evidence of PW3, it can be seen that she had not heard the cry of deceased Mary. According to her, the crying sound was that of Poppy, the son of the accused. So, even the prosecution cannot say that PW3 heard the cry of a female, especially when there is no evidence to that effect. So, according to us, the evidence of PW3 is in no way helpful for the prosecution to prove that the cry alleged to have heard by PW3 is that of the deceased.
42. At this juncture, it is relevant to note that the approximate time at which PW3 heard the cry from the house of the accused was after 11 a.m. on 1.1.2008. It is also pertinent to note that PW7, a witness produced and examined by the prosecution to prove the first circumstance, has categorically stated that, she had lastly seen the accused at about 11 a.m. on 1.1.2008 near to the house of the accused and particularly at the pathway, which is a mud road leading to the house of the accused. So, the time at which PW3 claimed to have heard the cry and the time at which PW7 saw the deceased are the same.
43. PW7 has no case that she had heard any cry from the house of the accused at 11 a.m. on 1.1.2008, even though she claimed that she had occasion to see the deceased at 11o’ clock. Had the version of PW3 been correct that she had heard the cry from the house of the accused, the same would have been heard by PW7 as well. So, the case of PW3 is not supported by the evidence of PW7, who is said to be present near the house of the accused on that particular time and date. The only conclusion that can be arrived on the basis of the above discussion and in view of the evidence referred to is that the prosecution has miserably failed to establish and prove the circumstance relied on by them, that there was a cry from the house of the accused at about 11 o’ clock on 1.1.2008, the date on which Mary was found missing.
44. Another circumstance sought to be established by the prosecution to connect the accused with the murder of the deceased Mary is that, on the next day of the murder of the deceased Mary, her body, which was buried, was exhumed from the property of the accused. As per the prosecution version, the exact location of the body exhumed is about 12.20 mtrs. away from the south-west corner of the house of the accused. After exhuming the dead body, the inquest started at 1.15 p.m. on 2.1.2008 and the same continued upto 4.30 p.m, on the same day. The prosecution has adduced no evidence as to how they had located the exact place at which the body was buried. In Ext.P1 inquest report, particularly under column nos.7 and 8, the RDO, Moovattupuzha, who conducted the inquest, has recorded that, the soil was found loose in length-wise position on the east-west direction from the rubber planted property of one Abraham and 12.20 mtrs. on the southern side from the south-west corner of the house of the accused. It is pertinent to note that the RDO, who prepared Ext.P1 inquest report, is not examined in this case. The non examination of RDO, who allegedly conducted the inquest and prepared Ext.P1, would go against the prosecution and the accused is highly prejudiced with the same. PW1 is the only witness examined, through whom Ext.P1 inquest report was marked, since he is an attestor to Ext.P1. But when PW1 was examined, the Police did not make any attempt to bring out the details or records as to how they had located the exact place at which the body was buried. At this juncture, it is relevant to refer to evidence of PW17. In the chief examination of PW17, the then Sub Inspector of Police, he deposed that, on receiving the information about the missing of the deceased, he had gone to the place of occurrence and on questioning the accused, he deposed that, “........ the dead body of the deceased Mary was buried on the southern side of the property. Immediately thereafter, I went to the place of occurrence...” and on verification, he got convinced that the said facts are correct. Thereafter, according to PW17, he deputed one Vijayan, to guard the scene of crime and thereafter, he sent a letter to the RDO for conducting inquest. In the evidence of PW17, he has no idea about the exact place where the body was buried. He has also no claim that the accused had revealed to him all the descriptions and with certainty and pinpointed the exact place. So, the fact as to how the exact place was located to dig out the body remains in darkness.
45. It is equally important to note that as per the version of PW17, the accused was taken to the Police Station after his arrival at the place of occurrence on registering the crime. Thus it can be seen that the accused was in the custody of PW17. PW19-the Investigating Officer, during his chief examination deposed that the accused was arrested at 1.30 p.m. on 2.1.2008. As per Ext.P1, the inquest proceedings were commenced at 1.50 p.m. on 2.1.2008. So, the combined effect of the above oral evidence of Pws.17 and 19 and the documentary evidence, such as Ext.P1 as well as other documents such as the arrest and search memo, would show that the accused was in the custody of the Police immediately after 9 a.m. on 2.1.2008 or atleast from 1.30 p.m. on 2.1.2008 onwards. Suffice to say, the prosecution has not recorded any confession statement of the accused about the burial of the dead body of the deceased Mary and no attempt was made by the Police in bringing the accused to the place where the body was buried and no evidence is adduced to show that the place of burial was pointed out by the accused, consequent to which, the body was exhumed and conducted the inquest. The above lapse on the part of the prosecution and the deficiency of evidence are sufficient to create serious doubt against the prosecution case as such. In the absence of any positive evidence in this regard, the questions to be considered are, how the Officer, who conducted the inquest, had located the exact place and who found out the buried body. PW17, who claims that the accused told him about the burial of the body of the deceased, has also not stated to the RDO about the place of burial. Thus, in the absence of such positive evidence, what this Court can reasonably infer is that the prosecution agency and the RDO have got prior knowledge about the actual place of burial of the dead body of the deceased. Otherwise, they would have been handicapped in locating the place and they could not have straightaway dig out the dead body. It is relevant to note that the prosecution has not adduced any evidence to show as to how they had located the exact place where the body was buried. So, the above facts, according to us, are highly suspicious, which go against the veracity of the prosecution allegation.
46. Another circumstance, which was already referred and relied on by the prosecution, is about the seizure of certain material objects from the house of the accused as per Ext.P4 scene mahazar. PW12 Jibi is an attestor to Ext.P12 scene mahazar. MO6 tray, MO7 knife, MO8 spade and MO9 lunki are the materials seized by the prosecution as per Ext.P4 scene mahazar. On MO7 knife, there was no blood stain as per Ext.P32 series of FSL report. Strange enough to note that, no blood stain is found on MO9 lunki allegedly worn by the accused at the time of the commission of the offence. It is also relevant to note that the prosecution has miserably failed to trace out any blood stain of Group B blood of the deceased, from the house of the accused. At this juncture, it is relevant to note that MO6 tray, MO7 knife, MO8 spade, MO9 lunki and MO10 iron pipe etc., are movable properties, which were allegedly belonging to the accused, have no significance in the present case, particularly in the absence of any positive evidence to show that any blood stain of Group B blood of the deceased had been traced out from the house of the accused. Even if it is considered that MO6, MO7, MO8, MO9 and MO10 are having blood stain and involved in the crime, the same being movable, the involvement of those materials, in a crime taken place outside the house of the accused, cannot be ruled out, especially when no blood stain is detected from the house. So, there is no positive evidence to show that the murder had taken place inside the house of the accused, or the evidence of prosecution are shabby in nature, which are insufficient to show that the accused committed murder of the deceased Mary in his house and the prosecution failed to show that the deceased was finally found in the company of the accused and also that the deceased went inside the house of the accused from the pathway at which Pws.3 and 7 allegedly saw the accused finally. So, according to us, the seizure of Mos.6, 7, 8 and 9 from the house of the accused are not helpful for the prosecution to establish its allegation against the accused and the said facts are not sufficient to constitute any circumstance against the accused. In the light of the above discussion and the evidence and materials referred above, the only conclusion that can be arrived is that, the prosecution has miserably failed to prove and establish the circumstances (a) to (c) referred above and even if the same are taken as proved, the same are not sufficient to connect the accused with the murder of deceased Mary.
47. We have already stated, the evidence adduced by the prosecution on the basis of the alleged confession statement of the accused, generally come under one category. With respect to the recovery of gold ornaments, ie., Mos.2 and 3, the prosecution has adduced documentary evidence, ie., Ext.P3 mahazar for the seizure of the same and Ext.P3(a) is the confession statement of the accused, on the basis of which, the seizure was effected. According to the prosecution, Ext.P7 mahazar has also relevance with respect to the seizure of Mos.2 and 3 gold ornaments, since the bill, ie., Ext.P8, which was seized as per Ext.P7, shows that Mos.2 and 3 were purchased from the accused on 1.1.2008. The evidence of PW6, Mathachan, who is the owner of Thannikal jewellery and the evidence of Pws.5 and 8 - the employees of PW6, who are the salesmen of the said jewellery, can be accepted, since those documentary evidence as well as the oral evidence are without any defect or doubt. The evidence of Pws.6, 8 and 9 were already referred and we find no reason to disbelieve those witnesses and doubt the genuineness and veracity of the documents, particularly Exts.P3, P3(a), P34, P34(a) and P8 produced by the prosecution to prove the recovery of Mos.2 and 3 gold ornaments and the revelation made by the accused under section 27 of the Evidence Act. Similarly, as per Ext.P5(a) confession statement made by the accused under section 27 of the Evidence Act, the Police had recovered MO10 iron pipe and seized the same as per Ext.P5 mahazar. Another recovery effected by the prosecution on the basis of the confession statement of the accused is that of MO4 series of golden studs of the deceased. Ext.P6 is the mahazar for the above seizure and Ext.P6(a) is the confession statement of the accused. It is also the case of the prosecution that in pursuance of Ext.P9(a) confession of the accused, a sum of Rs.26,500/- was recovered from the house of the accused as per Ext.P9 mahazar.
48. As far as the recovery of the above referred items, on the basis of the confession statement of the accused, is concerned, we have no hesitation to accept that part of the evidence of the prosecution. So, consequently, it can be concluded that the prosecution has succeeded in establishing the circumstances (i) to (vi) referred earlier. It is true that the prosecution has succeeded in establishing and adducing evidence with respect to the recovery of the above referred material objects on the basis of the confession statement of the accused under section 27 of the Evidence Act.
49. The learned Public Prosecutor emphatically submitted that, on accepting the evidence with respect to the recovery of the material objects referred above, it can be concluded that the deceased Mary was murdered by the accused alone. In support of the above contention, the learned Public Prosecutor has relied upon the decision of the Honourable Apex Court reported in Tulsiram Kanu Vs. The State [AIR 1954 SC 1]. In paragraph 7 of the above decision it is held as follows, ".....The presumption permitted to be drawn under S.114, illu.
(a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case "
The facts and circumstances involved in the present case are entirely different from the facts involved in the said decision of the Honourable Apex Court. In the said case, the prosecution case is that, "The deceased on 26.5.1949 went as usual from his residence to watch the trees and went home for his mid-day meal. After taking his meal he went to resume his watch but did not return home in the evening." But in the present case, according to the prosecution, the deceased Mary went to the house of the accused and the accused murdered her and taken the gold ornaments, which were recovered on the next day of the incident. That being the case of the prosecution, unless the said case is proved, the presumption permitted to draw under the above provisions of the Evidence Act is not available for the prosecution. Thus in the judgment in the above referred decision, while restoring the order of acquittal recorded by the trial court, the order, by which the High court reversed the order of acquittal, has been set aside and the accused was acquitted. So, the above decision relied on by the learned Public Prosecutor is not applicable in the present case. Another decision reported in Deonandan Mishra Vs. The State of Bihar (AIR 1955
SC 801) has also been relied on by the learned Public
Prosecutor. It is true, the said decision of the Honourable Supreme Court is also a case where the prosecution depends upon the circumstantial evidence to prove its case. In the present case, we have already found that the circumstances relied on by the prosecution, other than the recovery of material objects have not been proved and established. In the case cited supra, in paragraph 9, the Honourable Apex Court has held as follows, “It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain.”
But in the present case, having regard to the facts and circumstances involved in the present case, no responsibility can be cast upon the accused for offering any explanation to substantiate his innocence, since the circumstances relied on by the prosecution have not been proved and established. The decision reported in Sardar Khan Vs. State of Karnataka [(2004) 2 Supreme
Court Cases 442] was also relied on by the learned Public Prosecutor, which is also a case rests upon circumstantial evidence. But it is relevant to note that, in the said case, the deceased is the wife of the accused therein who were residing together and it is a case of uxoricide. In that case, the Honourable Apex Court has observed and found, particularly in paragraph 22, as follows :
"There is nothing on record to show that any outsider broke open the house and caused the murder of the deceased. The aforementioned circumstances, in our opinion, have rightly been accepted by the courts below as leading to proof of guilt of the appellant."
But in the present case, the factual scenario is entirely different from the above case and the circumstances relied on by the prosecution have not been established, as we have already found. The learned Public Prosecutor has also cited the decision in Gulab Chand Vs. State of
Madhya Pradesh (AIR 1995 SUPREME COURT 1598).
In the above decision, the factual matrix involved in the case is not discernible from the above decision. However, it is relevant to note that in paragraph 4 of the above decision, the Honourable Apex Court has held as follows :
"It has been indicated by this Court in Sanwat Khan v. State of Rajasthan (AIR 1956 SC 54), that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder." (emphasis supplied).
In the present case, as we have already indicated, the prosecution has miserably failed in proving that, on the crucial date and time, the accused alone was available in his house and the deceased Mary had entered into the house or lastly seen in the company of the accused. So, we are of the view that, simply because the gold ornaments that had worn by the deceased at the time of the incident, were recovered, is not sufficient to fix criminal liability upon the appellant/accused.
50. At this juncture, it is only apposite to refer to the scope of Section 27 of the Indian Evidence Act and the evidential value of the materials or evidence produced in terms of Section 27 of the Evidence Act. It is a well settled legal proposition that Section 27 is an exception to Sections 25 and 26 of the said Act. Sections 25 and 26 clearly mandate that confession made by the accused either to the Police Officer or while in custody of Police, is not to be proved. The above provisions of the Indian Evidence Act are in consonance with the Constitutional mandate contained under Article 20(3) of the Constitution of India. Section 27 of the Indian Evidence Act reads as follows :
"How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
A close reading of Section 27 gives an idea as to how far such information furnished by the accused, while he is in the custody of Police Officer, can be proved. It is held in the decision in Mohmed Inayatullah Vs. The State of Maharashtra (AIR 1976 SC 483) that, only those components or portions, which were admissible pursuant to which immediate cause of the discovery can be taken as legal evidence. Except the same, any other incriminating admission if any has to be excluded. Such form of evidence is not against the mandate of Article 20(3) of the Constitution of India, the same can be treated as evidence, not as a substantial evidence. Otherwise, in the absence of any constitutional safeguards or bar under sections 25 and 26 of the Evidence Act, the confession made by the accused to the Police Officer or made during the custody of a Police Officer would have been treated as a substantial evidence. So, according to us, the evidence adduced by the prosecution pertaining to the recovery of any material objects, pursuant to the confession of the accused under section 27 of the Evidence Act, cannot be treated as substantial evidence but only as a corroborative evidence. In the decision in Babboo @ Kalyandas and others Vs. State of Madhya Pradesh (1979 SCC (Cri)743), the Honourable Apex Court has held in paragraph 13 of the above judgment as follows, “The learned Additional Sessions Judge has also referred to the recovery of katarnas on the information given by accused 1, 3 and 5. These recoveries hardly have any probative value in the facts and circumstances of this case. If there is no substantive evidence worth the name the recovery of katarnas would hardly advance the prosecution case against the accused”.
In the very same decision, after pointing out some defects in the evidence connected with the recovery under section 27 of the Evidence Act, the Honourable Apex Court has held that, “In this background we are not disposed to attach any importance to the recovery of blood-stained katarnas on the information given by accused 1, 3 and 5”. In the decision in Bhagwan Singh and others vs. State of Madhya Pradesh (AIR 2003 SUPREME COURT 1088) in paragraph 31, the Honourable Apex Court has held as follows :
“................neither the sole testimony of the child witness nor the extra judicial confession conclusively prove the involvement and guilt of the three accused. In these circumstances, the evidence of recoveries of certain articles of the deceased on the alleged information, given by the accused is concerned, such evidence in itself is too weak a piece of evidence to sustain the conviction of the accused.”
Similarly, in the decision in Narayanan and others Vs. Krishnan and another (1981 Crl.L.J. 563), the court has observed as follows : “The statements of accused recorded by the investigating Police Officer are wholly inadmissible except to the limited extent permitted by Section 27 of the Evidence Act.” It is further held that, “The Court cannot rely on confessions of the accused and case diary statements of witnesses to come to a conclusion on disputed facts in support of the prosecution or the defence.”
51. In the light of the above discussion and in view of the authorities cited supra, the evidence of prosecution related to the recovery, on the basis of the confession statement of the accused under section 27 of the Evidence Act, cannot be treated as a substantial evidence, but the same is admissible and the use of the same is only for corroborating the substantial evidence, if any. In other words, the evidence adduced and covered by section 27 of the Evidence Act, independent of substantial evidence or the absence of such substantial evidence, cannot be pressed into service for convicting the accused, since its use and purpose is only to corroborate the substantial evidence, if any.
52. According to the learned Public Prosecutor, as the prosecution has succeeded, on the basis of the evidence connected with the recoveries of certain material objects effected on the basis of the confession statement of the accused, particularly Mos.2 and 3 gold ornaments and MO4 ear studs, in putting the accused under serious suspicion, it can be inferred that it was the accused who committed murder of deceased Mary. We are unable to accept the above contention. It is true, as submitted by the learned Public Prosecutor, that the prosecution had succeeded in creating a strong doubt against the accused. But, according to us, how far strong the doubt created by the prosecution, the same is not sufficient to dispense with the requirement of legal evidence to canvas a conviction against the accused, particularly in a case like the present one, where the prosecution case rests upon the circumstantial evidence.
53. At this juncture, it is relevant to note that in a decision reported in Sanatan Naskar and another vs. State of West Bengal [(2010) 3 SCC (Crl) 814], (cited supra), the honourable Apex Court has held in paragraph 27 as follows: (the extract of which is quoted hereunder for convenience) :
“ ......... It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence. .................... The accused will not be entitled to acquittal merely because there is no eyewitness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles in that regard.”
Thus, as per the above decision, the accused cannot contend that he is entitled to get an acquittal as there is no eye witness. Consequently, the corollary version shall be that in a case where the prosecution depends upon circumstantial evidence, they cannot claim or contend that as there is no eye witness, the rigor of their duty in establishing its case beyond reasonable doubt is to be dilated. Thus, it is the un-shifted burden of prosecution to prove its case beyond all reasonable doubt and the prosecution cannot be absolved from its traditional responsibility to prove its case beyond reasonable doubt, on the ground that their case rests upon circumstantial evidence.
54. In the light of the aforesaid discussion and in view of the evidence and materials on record, it can be seen that though the prosecution has succeeded in establishing the circumstances which are referred to above as (d), (e), (f), (g), (h), (i) and (j), connected with the recovery of material objects on the basis of the confession statement of the accused, the prosecution has miserably failed in proving the circumstances which are referred above as (a), (b) and (c). As the prosecution has failed to establish and prove the circumstances (a), (b) and (c), the other circumstances ie., (d) to (j) though established, are not helpful for the prosecution to prove the guilt of the accused.
55. Another circumstance alleged by the prosecution is the motive of the accused to commit murder of the deceased Mary. We have no hesitation to hold that the prosecution has succeeded in proving certain allegation against the accused. In the oral evidence of PW5, who allegedly sold a cow to the accused, he deposed that balance amount was due from the accused and produced MO5 series of currency notes of Rs.500/- denomination, which were paid by the accused. The evidence of PW9, who is a provision shop owner to whom an amount is due from the accused connected with the purchase of provision items, and the evidence of PW10, to whom it is claimed that the accused is indebted, are the evidence produced by the prosecution to prove the motive. We find no illegality in accepting the above evidence. So, we are of the opinion that, the prosecution has succeeded in proving that the accused was not financially stable and indebted to certain persons.
56. Even though the prosecution has succeeded in proving the motive, the recovery of incriminating material objects from the possession of the accused immediately after the death of the deceased, which materials are claimed to have sufficient to create serious doubt, is not sufficient to prove the guilt of the accused, since in the present case, the other circumstances sought to be established by the prosecution had not been clearly established and even if it is taken for the sake of argument that those circumstances are established, the same are not sufficient to form a complete chain, pointing towards the guilt of the accused.
57. Another adverse ground which we notice would go against the very root of the prosecution case. It can be seen that even in the Police charge as well as in the charge framed by the court below, the specific allegation against the accused is that, before the arrival of the deceased in the house of the accused, he made some preparations to bury the body of the deceased after the murder, for which he had already prepared a pit in his property. According to the prosecution, the accused carried out the said preparation with the assistance of one Sunny, who was cited as CW28. The non examination of CW28 cannot be taken as a mere omission or non examination of an unimportant witness.
58. The following components of the formal court charge are extracted hereunder for convenience ; which read as follows :
“As per the prosecution records and on the preliminary hearing, that you, the accused, with the intention and preparation of murdering Mary, wife of the 1st witness and to loot the gold ornaments and to bury the corpse for causing the disappearance of evidence, had caused the 28th witness to dig up a pit in advance in the homestead of the accused to bury the dead body and awaited for the appropriate moment. When Mary came to his house asking for butter-milk at 1.10 pm on 1.1.08, the accused deceitfully ushered her to the northern side of the kitchen room of the Chirattolickal house at Kallurkadu village, said Kara, Maruthur Desom, of Kallurkadu Panchayat bearing Panchayat numbers IX/367 and II/344, in which the accused is living with family, where no one else was present then, the accused pushed her down into the middle room at the western side and using the thondy iron pipe, hit on her head. When Mary cried with pain, he caught hold of her neck, pressed her against the wall and delivered blows repeatedly with the said pipe on her front-right side of the neck and both sides of the head and fatally injured and murdered her.”
Thus, it can be seen that in terms of the prosecution allegation in the charge framed by the court, it is specifically alleged that the appellant has committed the offence after pre-planning and preparation. As per the charge, the accused with the assistance of CW28, prepared a pit in advance in the property of the appellant, so as to bury the dead body of Mary after murdering her. But no evidence is adduced in support of the above essential part of the charge. No attempt was made by the prosecution during the trial to adduce evidence in this regard, at least by examining the witnesses already examined or by summoning the material witness-CW28. Therefore, there is serious lapse on the side of the prosecution and the above portion of the court charge is not proved by the prosecution. If that be so, the net result is that, the prosecution has no convincing explanation as to how the dead body of deceased Mary was buried at a place from where the body was exhumed. At this juncture, it is relevant to note that the incident, as per the prosecution allegation, had occurred between 11 and 12 a.m. on 1.1.2008/the fatal day. It is also the case of the prosecution that, at that point of time, PW5 came and called the name of the accused which was heard by PW3. PW3 is also a witness, said to have gone to the house of the accused and called the name of the son of the accused Popy. According to the prosecution, Karthiyani, CW11, who was not examined, was also present, at that material point of time. If these persons were available at that point of time, is it possible for the appellant to dig a pit and bury the body in that pit. There is no convincing explanation from the part of the prosecution about the preparation of the pit in advance. So, about these aspects, the entire prosecution case is in darkness. So, the prosecution case is spoiled when they said a go by to the above part of the prosecution charge. Thus, the only conclusion that can be drawn is that the main plank of the prosecution case was broken, which is sufficient to go against the very root of the prosecution case. Resultantly, the prosecution case is under the shadow of serious doubt. Therefore, the prosecution case is liable to be rejected.
59. Besides the above, we find certain other serious defects in the prosecution case and those defects are in such a nature to accelerate doubt against the prosecution case. As per the prosecution case, PW3 went to the house of Karthiyani, who was cited as CW11, to take the sickle for cutting the grass on the date of incident. As per the version of the prosecution, PW3 has chatted with the said Karthiyani and it was at that time PW3 claims to have seen the deceased on the pathway leading to the house of the accused. According to PW3, it was at that time that she heard a cry from the house of the accused and she went to the courtyard of the house of the accused. So, it can be reasonably concluded that if the prosecution case is correct, the said Karthiyani is also a material witness, but she was not examined by the prosecution. Thus, as far as the prosecution case and the charge against the accused are concerned, the said Karthiyani and Sunny, who are respectively CW11 and CW28, are very material witnesses and for the reason best known to the prosecution, those witnesses are not examined. As the case of the prosecution depends upon the circumstantial evidence, non examination of such material witnesses, especially in the absence of proper explanation, has to be weighed against the prosecution.
60. It is also pertinent to note that the prosecution has not examined the RDO, who claimed to have conducted the inquest on the body of the deceased Mary. No explanation is forthcoming for the non examination of such crucial and material witnesses. Ext.P1 inquest report in the present case is got marked through PW1 who is only an attestor. We have already indicated earlier, that as per the prosecution case, there is no evidence as to who exactly had identified the location at which the body of the deceased Mary was found buried. Though the accused, as per the case of the prosecution, was in their custody right from 9 a.m. on 2.1.2008 onwards and the arrest was recorded at 1.30 p.m. on that day, the prosecution has no case that the accused pointed out the exact place at which the body was buried. We have already arrived into a conclusion, particularly in the absence of evidence as to who had pointed out the exact location, that the authorities have got previous knowledge about the same. In the decision reported in State of Haryana Vs. Jagbir Singh and another (AIR 2003 SUPREME COURT 4377), the Honourable Supreme Court has held as follows :
“........One thing is clear that there are unexplained contradictions about the place where the accused were arrested and manner of recovery. Since the dead body was recovered on the basis of information already known. Section 27 of the Evidence Act has no application. As observed by this Court in Aher Raja Khima v. State of Saurashtra (AIR 1956 SC 217), if a recovery of the incriminating articles alleged to have been made by the accused while in custody is inadmissible in evidence if the police already known where they were hidden. That takes the case out the purview of Section 27 of the Evidence Act.”
In the present case, though the accused was in custody and recorded his arrest at 1.30 p.m. on 2.1.2008, no confession statement under section 27 of the Evidence Act was recorded, in spite of the fact that the Police has recorded several confession statements for the purpose of recovery of certain other material objects. There is no other available evidence to show that the RDO, who conducted the inquest and in whose presence the body was dug out, has got prior knowledge about the exact place of burial. Under the above circumstances, the non examination of RDO, who prepared Ext.P1 inquest report, is fatal to the prosecution and the same also resulted in great prejudice to the accused.
61. Another irregularity which we noticed is with respect to the correction of the date in some material documents. As per the case of the prosecution, the deceased Mary was found missing on 1.1.2008 and her husband went to the Police Station on 2.1.2008 and thereafter launched the FI statement, on the basis of which the crime was registered. On the front page of Ext.P13 FIR, it is seen corrected the date of FIR as 2.1.2008 from 1.1.2008. When the committal Magistrate made endorsement and when put his initial on the FIR, the date is seen corrected as 3.1.2008 instead of 1.1.2008. On a perusal of Ext.P13, the date and time of despatch were shown as at 9.45 a.m. on 2.1.2008 and the SHO had put his signature where the date is shown as 2.1.2008. In Ext.P18 arrest memo, we can see the same correction against column no.6(b) ; firstly the date and time at which the accused was taken into custody was written as 1.2.2008 at 1.30 p.m. and the same was seen rewritten as 2.1.2008. In the custody memo, which is not marked but attached to arrest memo, the date, time and place of taking him into custody, against column no.2 were shown after correction as 2.1.2008 and '2' was made after correcting '1'. As per the claim of PW17, the then Circle Inspector of Police, the accused was taken into custody in the morning when he went to the place of occurrence after registering the crime. By way of addition, the time of production of the accused before the learned Magistrate, as per the endorsement of the learned Magistrate was shown as 1.30 p.m. on 3.1.2008. So, on all the above referred documents, the date of registration of crime, the date of arrest of the accused and even the date on which the learned Magistrate endorsed his initial in the FIR, there are corrections. We find that, in the light of the fact that the prosecution has failed to establish the exact time of death of deceased Mary, those corrections have some bearing. However, the said facts are not put to the Investigating Officer or PW17 and no explanation was sought from them.
62. Thus, in the light of the above discussion and in view of the evidence and materials referred to above, we are of the firm opinion that the prosecution has miserably failed to establish the following circumstances, namely, the deceased was found between 10.30 a.m. and 11 a.m. on 1.1.2008 on the pathway leading to the house of the accused ; the circumstance of hearing a cry from the house of the accused at about 11 o' clock and the failure in proving that whether the cry was of a female or the deceased, and the circumstance that the body of the deceased was buried by the accused and exhumed from the property of the accused and the recovery of material objects from the house of the accused etc. by adducing satisfactory and cogent evidence. We are of the opinion that even if the above circumstances are taken as established, the same are not sufficient to constitute a complete chain. Further, we see that even if those circumstances are sufficient to constitute a complete chain, in the absence of proper and cogent evidence, it cannot be said that the accused alone had committed the offence of murder of the deceased and the prosecution has also failed to exclude the possibility of the involvement of any other persons in the commission of murder of the deceased Mary and hence the prosecution has miserably failed to show that the circumstances shown are inconsistent with the innocence of the accused ; rather, failed to prove that it was none other than the accused who committed the offence. Thus, we conclude that the prosecution has miserably failed to prove its allegation against the appellant/accused beyond reasonable doubt and therefore we are unable to confirm the findings and conviction recorded by the trial court against the appellant/accused and therefore the appellant is entitled to get an acquittal.
In the result, this appeal is allowed setting aside the judgment dated 12.5.2009 in S.C.No.78/09 of the court of Additional Sessions Judge (Ad hoc-1), Ernakulam, and the appellant/accused is acquitted of all the charges levelled against him.
As this Court has allowed the above appeal, acquitting the appellant/accused, by setting aside the impugned judgment, the appellant/accused is entitled to get released from the jail forthwith, if he is not required in any other case. Accordingly, the Registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Viyyur, forthwith, for appropriate action.
Sd/-
V.K.MOHANAN, Judge.
ami/MBS/ //True copy// P.A.to Judge Sd/-
K.HARILAL, Judge.