Murder Trial; Pradeep Vs. State [Kerala High Court, 07-09-2016]

Contents

Evidence Law – Penal Code, 1860 –  Ss. 302, 397, 201 r/w. 34 – Robbery and Murder – Poisoning by cyanide have contributed to the cause of death – Circumstantial Evidence – Recovery of the gold ornaments – Absence of independent witnesses to prove the seizure – Remand Report – Testimony of Police Officials – Delay in lodging the FIR – Failure to mention about the recovery of the dead body at the instance of the accused in the inquest report – Information received from a person accused of an offence while in the custody of the police officer – Benefit of Doubt – Discussed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T.SANKARAN & RAJA VIJAYARAGHAVAN.V, JJ

Crl.A.1811 of 2009 & Crl.A.2083 of 2009

Dated this the 7 th day of September, 2016

AGAINST JUDGMENT IN S.C.NO. 1013/2007 OF THE SESSIONS COURT, THRISSUR

# APPELLANT(S)/ ACCUSED NO.1

PRADEEP, PALAKKAD DISTRICT.

BY ADVS. SRI.N.K.UNNIKRISHNAN SRI.C.A.ANOOP SRI.LAL K.JOSEPH SRI.P.MURALEEDHARAN (THURAVOOR) SMT.M.C.SANITHA SRI.V.S.SHIRAZ BAVA SRI.A.A.ZIYAD RAHMAN

RESPONDENT(S)/STATE

STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN

JUDGMENT

Raja Vijayaraghavan.V.

1. These appeals are preferred by the appellants, who figured as accused Nos.1 & 2 in S.C.No.1013 of 2007 on the files of the Sessions Court, Thrissur. They were indicted and tried for having committed the offence punishable under

# Section 302, 397, 201 read with Section 34 of the IPC.

2.  As per judgment dated 16.7.2009, the 1 st accused was sentenced to undergo imprisonment for life and to pay fine of Rs.5 lakhs with a default clause to undergo rigorous imprisonment for five years u/s 302 of the IPC. He was also sentenced to undergo imprisonment for life and to pay a fine of Rs.4 lakhs with a default clause to undergo rigorous imprisonment for four months u/s 394 IPC r/w S.397 IPC. He was further sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1 lakh in default to undergo rigorous imprisonment for two more years u/s 201 of the IPC.

3. The 2 nd accused was sentenced to undergo imprisonment for life and to pay fine of Rs.2 Lakhs with a default clause to undergo rigorous imprisonment for three more years u/s 302 of the IPC. He was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.50,000/- with a default clause to undergo rigorous imprisonment for one more year u/s 394 of the IPC r/w 397 of the IPC. He was also sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.25,000/- with a default clause to undergo rigorous imprisonment for six more months u/s 201 of the IPC.

4. The above finding of guilt, conviction and sentence are assailed in these separate appeals. These appeals are considered and disposed off together.

5. The gruesome incident wherein a 47 year old Maharashtrian by name Sidhanath Shinde @ Ganesh Sait was done to death occurred in the month of January, 2007. There are no eye witnesses to the occurrence. In the peculiar facts of the instant case and in light of the various contentions raised, we deem it fit to catalogue chronologically the incident in the mode and manner as it unfurled.

6. Thrissur district in the State of Kerala is the haven of gold manufacturers and jewellers. Residents of Sangli district in the State of Maharashtra are known for their gold manufacturing skills. Sidhanath Shinde @ Ganesh Sait was one such person of Maharashtrian origin who had set up business in the name and style as “Arun Gold Testing and Aciding” in the 1 st floor of Swadeshi building at Rice bazar, Ariyangadi, Thrissur. He had set up business about 15 years back prior to the year 2007. His business centred around procuring orders for gold ornaments from dealers and supplying the same, after getting the same manufactured by skilled workers. He had married PW1-Sulochana in the year 1999 and was blessed with two children. On 6.1.2007, at about 2.00 p.m Ganesh Sait told his wife that he was going to Vadakkumcherry to meet Pradeep, his former employee. Pradeep had canvassed some orders and he wanted the deceased to go with him to Coimbatore to meet the buyers. Sulochana was also told that they had plans to go to Mysore as well and would return only late in the evening on Sunday. When there was no news from her husband, PW1 made an attempt to contact him on his mobile phone bearing subscriber No.9349846706 but it was found switched off. At the time of going along with Pradeep, at his request, Ganesh Sait had taken along with him gold ornaments weighing more than 1 Kgs. Sulochana was told by her husband that Pradeep had asked him to keep the fact that he was going with him discreet and also not to take any person along with him. Ganesh Sait, it appears, was made to promise that the trip to Coimbatore be kept a secret and not to divulge the said fact to any person. When Ganesh Sait did not return, PW1 called up Pradeep and asked him about the whereabouts of her husband. The response of Pradeep to the queries of PW1 created a fear in her mind about the well being of her husband. She feared that his life was in danger. Stating the above aspects on 8.1.2007, Ext.P36 complaint was submitted by PW1 before the Circle Inspector of police , Thrissur Town East police station.

7. The said complaint was forwarded to PW21 Sub Inspector of police who, on its basis, registered Ext.P1 crime on 8.1.2007 under the caption “man missing”. On 9.1.2007, PW23 Circle Inspector of Police summoned the 1 st accused for questioning to the police station. Though he initially denied his role in the crime, he later disclosed his complicity and therefore, at 12.00 noon he was arrested. MO72 Nokia mobile phone, which was found in the possession of the 1 st accused was seized as per Ext.P40 mahazar. The 1 st accused had disclosed the complicity of the 2 nd accused as well and steps were initiated to take him in custody. When the 1 st accused was questioned in police custody, he is alleged to have furnished Ext.P43 statement that he had put the dead body of Ganesh Sait in the water channel under a bridge in the Sathyamangalam forest in Tamil Nadu and based on this disclosure statement, PW23 along with the friends and relatives of the deceased proceeded to Sathyamangalam in a police jeep and a tempo traveller. On their way, at 1.15 p.m, accused No.2 was arrested at Royal junction at Vadakkumcherry and MO73 mobile phone found in his possession was seized as per Ext.P41 mahazar. They reached within the limits of Thalavadi police station in Tamil Nadu State and the 1 st accused have pointed out the dead body of deceased Ganesh Sait lying on the granite floor of the water channel near the bridge No.279/1 in the Sathyamangalam-Mysore National Highway. The relatives and friends of the deceased identified the dead body as that of Ganesh Sait. Ext.P42 body mahazar was prepared in their presence. The incident was reported to the Tamil Nadu as well as Karnataka police, but they did not co-operate with the investigation. Thereafter, Ext.P44 inquest report was prepared and MO2 pant found on the body of the deceased was seized. On the basis of the disclosure made by the 1 st accused that the shirt of the deceased was thrown into the bush towards the north of the Nassiri bridge, PW23 proceeded to the spot and found MO3 shirt pointed out by the 1 st accused and the same was seized as per Ext.P2 mahazar. Ext.P2(a) is the relevant portion of the disclosure statement. Though attempts were made to secure the service of an ambulance to transport the body to the State of Kerala, it was of no avail. The body was therefore, laid on the back side of the police jeep and was brought to Walayar. The body was then shifted to an ambulance which was waiting there and was sent for post mortem to the Medical College, Thrissur.

8. PW17, the Assistant Professor of Forensic Medicine and Deputy Police Surgeon at Medical College, Hospital, Thrissur, conducted the post mortem examination on the body of the deceased and issued Ext.P27 post mortem certificate. He had noted the following :-

External Appearance :-

Moderately built and nourished adult male of height 165 cm and weight 87 Kg. Dry leaves sticking on the body at places. Eggs of flies were seen on the inner aspect of upper lip, on the moustache and behind both ears. Live maggots of size 0.2 cm seen around nostrils. Sub burn marks seen as black discolouration and skin slippage on front of chest, front of axilla, front of both thighs and both ingunial regions. Face and forehead showed black discolouration. Dry blood stains on forehead. Eyes were bulging and partially open. Conjunctivae congested, corneae clear and pupils dilated. Tache noir spots in both eyes. Blood stained fluid coming out of nostrils. All other external body crifices were normal. Finger nails were blue. Multiple post-mortem and erosions were seen on the body at places. Rigor mortis feebly present in chin, fingers of hands and ankles, absent in neck, other parts of upper limbs and lower limbs. Postmortem staining was at back, fixed. Greenish discolouration was seen on upper part of front of chest and both iliac fossae. Abdomen distended with gas. Postmortem blebs were seen at places on the body. Postmortem peeling of cuticles was seen at places on the body. Scalp hairs loose INJURIES (ANTEMORTEM):-

1. Contusion 2 x 1 x 0.2 cm on right side of forehead, just outer to midline, 5 cm above root of nose.

2.  Contusion 2 x 2 x 0.2 cm on right side of forehead 1. 5 cm outer to midline 2.5 cm above eyebrow.

3.  Contusion 1.5 x 1 x 0.2 cm on right side of forehead 5 cm above eyebrow 3 cm outer to midline.

4.  Contusion 9 x 5 x 0.5 cm on right side of top of head and right side of forehead 3 cm outer to midline 1 cm above eyebrow. Brain showed subarachnoid haemorrhage on both halves. The gyri were flattened and sulci were narrowed.

5.  Abrasion 1.5×1 cm on right side of face, 6cm outer to midline, 2cm below outer angle of right eye.

6.  Abrasion 1.5×1 cm on top of nose, 1.5 cm above tip of nose.

7.  Abrasion 1.5x1cm on left side of nose over the ala.

8.  Abrasion 2×1 cm on left side of face, 1.5 cm below outer angle of left eye, 7 cm outer to midline.

9.  Abrasion 2×1.5 cm on left side of face 3 cm outer to ala of nose.

10.  Abrasion 4×0.8 cm on right side of neck, its inner end 8cm outer to midline, 8cm below lower jaw.

11.  Abrasion 1.5×1 cm on right side of front of chest 14 cm outer to midline 21 cm below collar bone.

12.  Abrasion 5×1 cm on left side of front of chest, its inner end 14 cm below top of shoulder 13 cm outer to midline.

13.  Multiple linear abrasions over an area 12x2cm on left side of front of chest, 9 cm outer to midline, 30 cm below top of shoulder.

14.  Abrasion 6×5 cm on outer aspect of left side of chest, 15 cm below front fold of axilla.

15.  Multiple linear abrasions over an area 11x3cm on outer aspect of Left side of trunk 20 cm below armpit.

16.  Abrasion 4×4 cm on left side of back of trunk 12 cm below top of shoulder 21 cm outer to midline.

17.  Multiple abrasions of sizes 2.5×0.8cm to 10×1 cm, over an area 11×11 cm, horizontally placed on left side of back of trunk 4 cm outer to midline 26 cm below top of shoulder.

18.  Abrasion 8x4cm on left side of back of trunk, 16 cm below top of shoulder, 15 cm outer to midline.

19.  Abrasion 11x9cm on left side of back of trunk 3cm below top of shoulder 16 cm outer to midline.

20.  Abrasion 2×2 cm on right side of back of trunk 3cm outer to midline 7cm below top of shoulder.

21.  Abrasion 8×2.5 cm on back of trunk in midline, its lower end at the upper part of natal cleft.

22.  Abrasion 5×3 cm on left buttock 23. Abrasion 9×8 cm on right buttock 24. Abrasion 8×2 cm on right buttock 10 cm outer to midline 15 cm below top of hipbone.

25.  Abrasion 5×3 cm on back of left elbow.

26.  Abrasion 1.3 x 0.5 cm vertically placed on outer aspect of left arm 3cm below tip of shoulder.

27.  Abrasion 3×1.5 cm on back of left forearm 9cm below elbow.

28.  Abrasion 2.5 x 1 cm on back of left forearm 6cm below elbow.

29.  Abrasion 4x1cm on back of right thigh 18 cm below top of hipbone.

30.  Abrasion 5×1.5 cm on outer aspect of left thigh 4cm above knee.

31.  Abrasion 2.5x 2 cm on front of left knee.

(C).OTHER FINDINGS Skull intact. Brain showed early decomposition changes. Inner aspect of lips was congested. Flap dissection of neck was done under bloodless field was found to be normal. Ribs and chest wall were intact. Mucosa of esophagus congested. Trachea and bronchi were congested. Lungs were congested and oedematous. Heart normal. Liver, spleen, kidneys and pancreas were congested and showed early decomposition changes. Adrenal glands showed early decomposition. Stomach contained unidentifiable food particles in a fluid medium having an unusual smell. Its mucosa was intensely congested. Intestines and mesentery were normal. Urinary bladder was empty and normal. Genital organs were normal. Spinal column and cord were intact.

9. Sample of blood stained fluid and viscera preserved and sent for chemical analysis. His opinion before receiving the report of chemical analysis was that death was due to the combined effects of smothering and blunt injury sustained to head.

10. Ext.P28 report was later received from the Chemical Examiner’s Laboratory, Ernakulam. It revealed that the viscera and internal organs of the deceased contained traces of hydrocyanic acid. Based on Ext.P8, final opinion was furnished by PW17 that along with the earlier opinion as to the cause of death noted in Ext.P27, poisoning by cyanide could also have contributed to the cause of death.

11. Thereafter, based on Ext.P3(a) disclosure statement given by the 1 st accused, PW23 along with his party proceeded to the house of A1 and MO5 to MO66 gold ornaments were dug out from the ground near to the firewood shed situated on the back side of the house as per Ext.P3 mahazar. A Tata Indica car bearing registration No.KL-8U- 7181 allegedly used for facilitating the commission of the crime was seized from the car porch of one Sunny as per Ext.P45 mahazar.

12. At 4.00 a.m on 10.1.2007, they reached the police station and the property seized were identified by the witnesses. Ext.P46 report was submitted before Court incorporating the names of accused Nos.1 and 2 and adding Section 302 r/w Section 34 of the IPC. Ext.P49 application for remand was submitted before Court along with Ext.P47 arrest memo of the 1 st accused and Ext.P48 arrest memo of the 2 nd accused. The Tata Indica car was got examined by the scientific expert and he seized four items, which were produced as MO74 series. The said items were seized as per Ext.P50 mahazar.

13. During this critical period of the investigation, PW23 had to go to Goa in connection with the investigation of crime No.717 of 2006 of the said police station. He returned back only on 14.1.2007.

14. On 15.1.2007, Ext.P58 report was submitted before Court for getting custody of the accused. On 16.1.2007, the application was allowed and the accused were given in police custody for five days. In the meantime, Ext.P51 authorisation was obtained from the Superintendent of Police for carrying out the investigation in the State of Kerala as well as in Tamil Nadu.

15. While the 1 st accused was in custody, he gave Ext.P5(a) disclosure statement as per which he confessed that MO1 gold chain found on the body of the deceased was put in the Hundial of Bannari Amman Kovil at Coimbatore. Based on the said disclosure, PW23 along with the accused and others, proceeded to Bannari Amman Kovil, which is situated on the side of the Coimbatore – Sathyamangalam road. Coffer No.9 pointed out by the accused was found locked. Request was made by PW23 to the Deputy Commissioner of Bannari Amman Kovil temple for opening the coffer.

16. Thereafter, as per Ext.P29 mahazar, register revealing the details of cars which passed through Bannari check post was seized. It revealed the journey of a car bearing registration No.KL-8U- 7181 at 10.00 p.m on 6.1.2007. The original of the register was returned after obtaining necessary undertaking that the same will be produced as and when required. Ext.P30 is the photocopy of page 6 of the register.

17. Thereafter, PW23 proceeded to the scene of crime and prepared Ext.P53 mahazar detailing the place where the watch, towel and food waste of deceased were thrown. Later, request was given to the Village Officer to prepare the scene plan. On 18.1.2007, the Officer proceeded with the accused to the place where the mobile phone of the deceased were thrown and prepared Ext.P54 mahazar. Ext.P4 mahazar was prepared in respect of the place where the gold ring worn by the deceased were thrown away.

18. On 19.1.2007, PW23 reached the Bannari Amman Temple at Tamil Nadu at 9.00 a.m along with the accused and coffer pointed out by the accused was opened in the presence of PW6, the Deputy Commissioner of Bannari Amman Thirukovil and others. MO1 gold chain was found inside the coffer, which was identified by PW5. Ext.P5 mahazar was prepared and direction was issued to PW6 to produce MO1 on receipt of Court orders. On the next day, PW23 proceeded with the accused to Coimbatore and Ext.P56 mahazar was prepared in respect of the room in which the 1 st accused had stayed.

19. Thereafter, based on Ext.P6(a) information given by the 2 nd accused, PW23 proceeded to his house and at 12.30 p.m on 20.1.2007, MO4 series of chappals were dug out from behind his house as per Ext.P6 mahazar. MO68 trouser and MO69 shirt which were allegedly worn by the 2 nd accused at the time of occurrence was produced by his sister and the same was seized as per Ext.P7 mahazar. Thereafter as per Ext.P8 mahazar, MO70 pants and MO71 shirt worn by the 1 st accused on the date of incident were seized. He also proceeded to Royal Junction, Vadakkumcherry and prepared Ext.P57 mahazar.

20. Based on Ext.P18(a) disclosure made by the 2 nd accused that fuel was filled from the petrol pump by name “Geetha Agencies” at Royal Junction, PW23 proceeded to the spot and seized the bill book as per Ext.P18 mahazar. Ext.P17 is the copy of bill No.2571 dated 6.1.2007. The bill book was thereafter returned as per Ext.P19 receipt.

21.  On 21.1.2007, medical examination of the accused were conducted and thereafter, were produced before Court.

22.  On 22.1.2007, application was filed before the learned Magistrate seeking an order directing production of MO1 chain before Court. The same was allowed by the Court and on receipt of the order, PW6 issued Ext.P10 letter to PW23 informing him that the gold chain will be produced before Court on 3.2.2007. An application was filed for getting MO1 identified by PW1. On 3.2.2007, MO1 gold chain was produced before Court by PW6 and the same was identified by PW1.

23. Thereafter, steps were taken to get the telephone call details in respect of the phones used by the deceased, PW3 Sambaji and accused Nos.1 & 2. The said records were obtained and the same was produced before Court. On 13.3.2007, Ext.P27 post mortem report was obtained and thereafter, the doctor who prepared the same was questioned and his statement was recorded. On 30.3.2007, the chemical analysis report was obtained which was produced before Court. On 16.5.2007, the compact disk containing the photographs were produced before Court. MO76 is the photo album. The material objects were produced before Court and the property lists, six in numbers, were marked as Ext.P59 series. Ext.P60 is the copy of the forwarding note sent for chemical analysis. Later, Ext.P61 report was submitted adding Section 392 , 201 of the IPC. Ext.P62 is the sketch of the Royal Junction, Vadakkumcherry. Ext.P64 series, three in numbers, are the property lists in respect of material objects produced before Court. Ext.P15, copy of driving licence was seized as per Ext.P16 mahazar. Thereafter, on 25.5.2007, investigation was completed and final report was laid before the jurisdictional Magistrate.

24.  The Court before which the final report was laid took cognizance of the offences. Finding that the offences are exclusively triable by a Court of sessions, the said Court committed the case to the Court of Sessions, Thrissur u/s 209 of the Cr.P.C after complying with the necessary procedures. The said Court on receipt of records and on appearance of the accused, framed charge for the offences punishable under Section 302, 397, 201 r/w Section 34 of the IPC. To the charge, the accused pleaded not guilty and claimed that they be tried. The prosecution therefore, had 23 witnesses examined as PW1 to 23 and had Ext.P1 to P64 series marked. They also had MO1 to MO76 produced and identified.

25. After the closure of prosecution evidence, the accused were questioned u/s 313 (1)(b) of the Cr.P.C. Apart from denying the incriminating circumstances pointed out to them, the 1 st accused stated that PW2 Sathyan was having severe enmity towards him. He had earlier worked with Sathyan. He had informed Kishore, the brother-inlaw of Sathyan, that Sathyan was having intimacy towards one Kavitha. This led to his termination from service. He was implicated in the case because of Sathyan. He had no occasion to ask deceased Sidhanath to go along with him to Coimbatore or Mysore as stated by PW1. PW1 had stated so at the instance of PW2 Sathyan, PW3 Sambaji and at the instance of the police. He had no occasion to meet Sidhanath on 6.1.2007 or on subsequent days when he was allegedly found missing. From 9.1.2007 at 4.00 p.m till early morning on 10.1.2007, the Head Constable Vijayan and one policeman of the Town police station were in the near vicinity of his house. The police have concocted false evidence against the accused No.1 at the instance of PW2 Sathyan and one Antony, who is the owner of Aiswarya jewellery. None of the documents from Ext.P1 onwards, produced in the case were prepared either at the time or place noted therein. All the records were fabricated later by the police. He was arrested on 10.1.2007 in the morning. He further stated that he had not shown the body of Sidhanath or MO1 gold chain to the police. He has not pointed out MO3 shirt or MO5 to MO66 gold chain to the police nor were they recovered at his instance. MO72 mobile phone was not recovered at his instance nor had he produced the same before the police. He has no connection whatsoever with MO72. He had no occasion to use mobile connection bearing No.9442341448 which stands in the name of Sachin Ganapathy. He asserted that he was totally innocent.

26.  The 2 nd accused, in his statement, apart from denying the circumstances added that he was totally innocent. According to him, he had not committed any offence alleged by the police. He denied that he was arrested by the police at Royal Junction, Vadakkumcherry at the time or place alleged by the police. He denied that MO73 mobile phone was seized from his possession. He also denied that he had pointed out MO4 chappals and that recovery was effected at his instance. According to him, he has no connection with the material objects identified as MO1 to Mo76 and asserted that the police have fabricated a false case against him.

27.  Finding that the accused could not be acquitted u/s 232 of the Cr.P.C, they were asked to enter upon their defence. The accused had DW1 examined and Exts.D1 to D4 were marked.

28. The Court below marshalled various circumstances to link the accused with the crime and concluded that the above circumstances were consistent only with the hypothesis of the guilt of the accused. According to the learned Sessions Judge, the chain of evidence was so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. According to the learned Sessions Judge each of the circumstances have been cogently established, the cumulative effect thereof would show that all the links in the chain are complete and the conclusion of the guilt is fully established. It was held that the death of the deceased was homicidal and the circumstances established clearly proved that the death of the deceased was caused by the accused and none else that too with the intention of causing the death of the deceased. It was held that the death of the deceased was caused for committing robbery. It was holding so that the appellant were found guilty and was sentenced as aforesaid.

29. The appellants assails their conviction and sentence by preferring separate appeals.

30. We have heard Sri.N.K.Unnikrishnan, the learned counsel appearing for the appellant/accused No.1 in Crl.A. 1811 of 2009, Sri.S.Rajeev, the learned counsel appearing for the appellant/accused No.2 in Crl.A.2083 of 2009 and Sri.Rajesh Vijayan, the learned Public Prosecutor.

31. Sri.N.K.Unnikrishnan, the learned counsel appearing for the 1 st accused contended that the learned Sessions Judge had not analyzed the evidence in the proper perspective. It was urged by the learned counsel that the prosecution rested its case on circumstantial evidence and none of the circumstances could be cogently established.

32. The learned counsel would forcefully contend that PW23, the Investigating Officer was not empowered under law to take up or conduct investigation as the deceased Ganesh Sait was done to death at Sathyamangalam Forest area, in the State of Tamil Nadu, which is clearly beyond his territorial jurisdiction. According to the learned counsel, Ext.P51 authorisation letter said to have been issued to PW23 by the Superintendent of Police, Thrissur, will not empower him to take up the investigation. It is also his submission that Ext.P51 authorisation was brought into existence at a later point of time to get over the challenge raised with regard to the competency of PW23 to take up and carry out investigation. According to the learned counsel, the lack of competency of PW23 would vitiate the prosecution and the trial and on that sole ground the accused is liable to be acquitted.

33. It is submitted by the learned counsel that the learned Sessions Judge has misdirected himself in placing reliance on the evidence of PW1, the wife of the deceased and Ext.P1, the alleged complaint based on which the law was set in motion. According to the learned counsel, though the said complaint is said to have been lodged on 8.1.2007, the same reached the Court only on 10.1.2007. The role attributed to the 1 st accused in the said complaint is an afterthought. One of the strong circumstances which weighed in the mind of the learned Sessions Judge is the evidence given by PW1 that she was told that the deceased was going to Coimbatore to meet business parties with the 1 st accused and that he was made to promise that the said fact will not be divulged to any person. According to the learned counsel, a honest appraisal of the evidence would reveal that no such statement could have been made and even if any such statement was made, the same was inadmissible in evidence.

34. It is vehemently submitted by the learned counsel that the arrest, searches and seizures were carried out in violation to even the most basic of formalities and the failure of the concerned officer to secure the presence of independent witnesses would make matters worse. None of the seizures effected by PW23 was credible and no reliance could be placed on the same.

35. The learned counsel appearing for the 1 st accused addressed us extensively on the lack of credibility of the call data records produced and marked by the prosecution to prove the interactions over phone between the 1 st accused and the deceased. According to the learned counsel, the safeguards put in place by the statute and reiterated by the Apex Court in a catena of decisions would enable the accused to convincingly show that the call data records was not credible. There was no satisfactory evidence to either show that MO72 mobile phone seized allegedly from the possession of the 1 st accused had belonged to him or that SIM number 9442341448 was the number which was used by the 1 st accused. It was contended that failure of the prosecution to prove the seizure of MO72 from the possession of A1 would destroy the very edifice of the prosecution case as the whole case hinged on the call data records of the accused, the deceased and the prime witnesses. The failure to note the cell ID number or the IMEI number was strenuously highlighted as another flaw. According to the learned counsel, proper certification as contemplated under Section 65B of the Indian Evidence Act was not obtained by the prosecution and this would further weaken the prosecution case. The electronic records produced before court by the prosecution without the mandatory certification under Section 65B of the Evidence Act is valueless. According to the learned counsel, the prosecution had thoroughly failed to prove any connection between the 1 st accused and MO72 mobile phone, as PW11, the witness cited to prove this fact had not supported the prosecution case.

36. It is contended by the learned counsel appearing for the 1 st accused that the court below had erroneously concluded that the conduct of the 1 st accused was suspicious. According to the learned counsel, the 1 st accused was very much available in the locality and when he was called to the house of the accused to enquire about the whereabouts of the deceased, he had readily gone there and also had consumed food. There is nothing unusual, unnatural or suspicious in the conduct attributed to the accused. His conduct as aforesaid revealed his innocence in the matter rather than his culpability.

37. It is then contended by the learned counsel that the prosecution had failed to prove any motive on the part of the 1 st accused to commit the crime. According to the learned counsel, in a case resting on circumstantial evidence, motive plays an important role and when the prosecution had thoroughly failed to prove any motive on the part of the accused, the benefit necessarily has to be extended to the accused. There was no evidence to show that the deceased was engaged in gold business or that the accused and the deceased were having some acquaintance. These aspects reveals that the prosecution had failed to establish the motive.

38. It is then submitted by the learned counsel, that no evidence was let in to prove that the accused was seen with the deceased at any point of time. Except for the vague evidence let in by PW1 and PW3 that the deceased had gone with the 1 st accused to Coimbatore to meet some buyers, the prosecution had failed to prove in any convincing fashion that they were seen together. The only witness who was examined to prove the above fact was PW9 Pramod, whose evidence was not helpful to the prosecution.

39. The learned counsel went on to submit that the evidence adduced by the prosecution to prove that the deceased as well as the accused had travelled together in a Tata Indica Car bearing registration No.KL-8-U-7181 is not free from doubt and the records relied on by the prosecution are fabricated. It is also unbelievable that PW10 had readily handed over the car to the 2 nd accused with whom he was having very little acquaintance. The seizure of the car from the home of one Sunny @ Varghese also will not inspire the confidence of the Court. The copy of the diesel bill, the entries in the register maintained at the check post, etc., are manipulated with mala fide intent to connect the accused with the crime.

40. Much argument was addressed by the learned counsel with regard to the medical evidence let in by the prosecution to prove that the deceased had died a homicidal death. According to the learned counsel, the autopsy report will not reveal that the deceased had died due to continuous effects of smothering, blunt injuries sustained to the head and poisoning by cyanide. It is submitted that the prosecution had failed to even prove that the death of the deceased was even proximately linked to the administration of poison or that the accused was found in possession of the poison, which was administered by him. The evidence of PW7 from whom the poison was said to have been acquired does not have the ring of truth.

41. The learned counsel criticized the evidence given by PW17, the Forensic Surgeon and submitted that the opinion given by him conflicted with the opinions on the subject of various authors in authoritative text books on medical jurisprudence. According to the learned counsel, the evidence let in by PW17 is unscientific and contrary to the opinion of celebrated authors and therefore, the same cannot be relied on to prove the cause of death, the time of death and place of death in a convincing manner. Several inconsistencies are there, according to the learned counsel, when the autopsy report is compared with Ext.P44 inquest report, which would also throw serious doubts on the manner of investigation and the mode in which the appellants were implicated.

42. It is then contended by the learned counsel that the prosecution had failed to convincingly establish the arrest and custody of the 1 st accused on 9.1.2007. Relying on the arrest memo, various mahazars, disclosure statements and the remand report, it was submitted that the evidence let in by the prosecution is unreliable and is to be ignored. As a necessary corollary, the alleged recoveries made at the instance of the 1 st accused is to be eschewed from evidence and could never have been considered to be an incriminating circumstance against the 1st accused.

43. It is then contended by the learned counsel that the prosecution had miserably failed to clearly establish that the body of the deceased was recovered at the instance of the accused. Referring to Ext.P43, it is submitted that there is clear interpolation as regards the authorship of concealment. The delay in the said record reaching court is also highlighted by the learned counsel. On the above basis, it is contended that the crucial circumstance of recovery of the dead body at the instance of the accused No.1 cannot be accepted. It is further contended that there are similar inconsistencies with regard to the recovery of MO3 shirt as well.

44. As regards the recovery of MO5 to MO66 , the gold ornaments, at the instance of the 1 st accused, we were extensively addressed by the learned counsel to contend that the same is highly suspicious. Referring to the evidence of PW4, it is submitted, that the evidence let in by him is quite artificial. Referring to the absence of any independent witness to the seizure effected by PW23 of MO5 to MO66 gold ornaments from the compound of the house of the 1 st accused, it is submitted that the same would create serious doubt. According to the learned counsel it is unsafe to rely on the evidence of PW4 especially when people in the immediate neighborhood were not called upon to witness the search. At any rate, according to the learned counsel, discovery is a weak piece of evidence and cannot be the basis of conviction in the absence of reliable materials. The learned counsel would further contend that the recovery of MO1 chain on the basis of confessional statement given by the 1st accused cannot be relied upon in view of the serious discrepancies which were brought out in evidence by the defence. It is submitted by the learned counsel that the Investigating Officer had stated in his evidence that the 1 st accused had pointed out the Hundial No.9 at Bannari Amman Kovil on 17.1.2007 but the recovery seen effected on 19.1.2007. The alleged disclosure statement, Ext.P5(a), is dated 19.1.2007 and the same reaches court only on 22.1.2007. According to the learned counsel, it is inconceivable to believe that in respect of a disclosure made on 19.1.2007, a requisition could have been submitted by the Investigating Officer to the authorities of the temple to open the Hundial on 17.1.2007. This would reveal that the recovery is stage managed and therefore, highly unreliable. The learned counsel also relied on the evidence of PW1 and PW23 to contend that there are several inconsistencies surrounding the identification of the gold ornaments by PW1 on 3.2.2007 at the Magistrate Court, Thrissur. On its basis, it is submitted that the recovery and identification of MO1 gold chain is shrouded with suspicious circumstances and the same was liable to be rejected.

45. Finally, it is submitted that the prosecution had thoroughly failed to prove the offence under Section 302, 397 and 201 of the IPC. According to the learned counsel, the whole investigation is flawed and a concerted attempt was made by PW23 with the assistance of PW2 & PW3 to place the authorship of the gruesome murder on the accused. It is submitted that though the materials adduced by the prosecution may be sufficient to point the finger of suspicion at the accused, it is by now settled that the suspicion however grave, cannot be a substitute for proof. According to the learned counsel, the prosecution was bound to prove each and every incriminating circumstance by reliable and clinching evidence and though circumstances so proved had to form a chain of events which would permit of no other conclusion other than the guilt of the accused. A detailed argument note was also submitted by the learned counsel to buttress his arguments.

46. Sri.S.Rajeev, the learned counsel appearing for the 2 nd accused, would submit that he adopts the comprehensive arguments advanced by the learned counsel appearing for the 1 st accused. It is further submitted that the only evidence connecting the 2 nd accused with the crime is the recovery of MO4 series footwear at his instance on 20.1.2007. The prosecution alleges that MO4 series belonged to the deceased. According to the learned counsel, to believe that the 2 nd accused would carry MO4 series all the way from Coimbatore and bury them in the compound of his house so as to enable the investigating Officer to recover the same at his instance would reveal the hollowness of the prosecution. The prosecuting agency was desperate to connect the accused No.2 with the crime and the recovery at his instance was stage managed to link him. It is further submitted that he had no role to play in the death of Ganesh Sait and the evidence was not properly appreciated by the trial Court prior to convicting him.

47. The learned Public Prosecutor Sri.Rajesh Vijayan would address us in detail. He would support the findings arrived at by the learned Sessions Judge and contend that the argument advanced by the learned counsel appearing for the accused was merit less.

48. It is submitted by the learned Public Prosecutor that the contention that the Investigating Officer was not empowered to investigate the crime was unsustainable. It is pointed out that Ganesh Sait had left his house, which is within the territorial jurisdiction of PW23, with gold ornaments. He had apparently gone with the 1 st accused to Coimbatore as disclosed by him to PW1, his wife. On his failure to return, his wife had set the law in motion by fling Ext.P1. It is based on the same that Ext.P36 was registered on 8.1.2007. It is based on the information furnished by the 1 st accused that the body of the deceased was located at Sathyamangalam. According to the learned Public Prosecutor, various transactions which led to the murder had taken place within the limits of his jurisdiction and therefore, there is no embargo in PW23 carrying out the investigation and laying the final report. It is further submitted that he was also authorized as per Ext.P51 by the Superintendent of Police, Thrissur. It is contended on the above basis that the challenge raised by the appellant on the competency of PW23 to carry out the investigation cannot be sustained under law. It is further submitted that at no point of time prior to the commencement of the trial the appellant had raised a contention that he was prejudiced in any manner.

49. It is further submitted by the learned Public Prosecutor that the recovery of the dead body, clothes and gold ornaments of the deceased at the instance of the accused was proved by the prosecution in convincing fashion and the challenges raised by the appellant were all rejected by the trial court after exhaustively appreciating the prosecution case in a threadbare manner. The learned Public Prosecutor took us through the evidence and submitted that the inconsistencies pointed out by the defence were trivial and minor and would not affect the core and genuineness of the prosecution case.

50. Referring to the call data records it is submitted by the learned Public Prosecutor that the investigating agency was successful in forging a connecting link between the accused and the deceased. There are ample materials which reveal that the deceased and the 1 st accused were continuously in touch over phone. The evidence of PW1 Sulochana and PW3 Sambaji would clearly substantiate the case of the prosecution that the deceased had gone with the accused. Convincing evidence was adduced by the prosecution to prove that the mobile phone with number 9442341448 was the one used by the accused. This fact is borne out not just through the call data records but through the oral evidence of the prosecution witness as well. There was also evidence to show that the accused No.1 and 2 were also constantly in touch. The discrepancy pointed out by the defence in the evidence of PW3 and Ext.P37 call details is not very significant according to the learned Public Prosecutor, who contended that it was explainable on scientific terms. Merely because the tower position of the mobile number was different did not necessarily lead to the conclusion that PW3 was not speaking the truth. It is submitted that there is no discrepancy between the autopsy report and the inquest and the criticism raised by the learned counsel on the credibility of the findings of the doctor who conducted the postmortem was misconceived. The learned Public Prosecutor highlighted the evidence of prosecution witnesses and submitted that the prosecution was successful. According to the learned Public Prosecutor, this is a case of robbery and murder and the prosecution was successful in recovering the stolen gold ornaments from the precincts of the house of the 1 st accused in less than 24 hours from the registration of the crime. This according to the learned Public Prosecutor, would be presumptive evidence against the accused on the charge of robbery and also the charge of murder. There is irrefutable evidence to prove that the accused after administering poison to the deceased had smothered him and had dragged the body of the deceased and threw it on the water less channel near the Nassiri bridge and according to the learned Public Prosecutor, the evidence let in clearly reveals that the accused have committed robbery of gold ornaments after committing murder of the deceased. There is also evidence to prove that the accused had deliberately caused the disappearance of the evidence of murder as well as robbery with an intent to screen themselves from punishment. The prosecution has established all the circumstances from which an inference of guilt could be cogently and firmly established and the circumstances are complete and inescapable of any other explanation that the guilt of the accused. According to the learned Public Prosecutor, the appeal preferred challenging the conviction and sentence is merit less and does not warrant any interference.

51. After having heard the learned counsel in extenso, we shall remind ourselves of the principles which should guide and weigh with the Courts administering criminal justice while dealing with a case based on circumstantial evidence. These principles have been succinctly laid down by the Apex Court and has been reiterated time and again. Before making an endeavor to appreciate the rival contentions, we shall remind ourselves of the principles.

52. In

# Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253

a three Judge Bench of the Apex Court has reiterated the principles in these lines :-

[34]. Regard being had to the aforesaid circumstances, it is to be seen whether on the basis of the said circumstances, it can be held whether such circumstances lead towards the guilt of the accused regard being had to the principle that they lead to a singular conclusion that the appellant is guilty of the offence and it does not allow any other probability which is likely to allow the presumption of innocence of the accused. In this context, we may refer with profit to the decision rendered more than six decades back in

# Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 : 1953 CriLJ 129

wherein it has been held as follows: (AIR pp. 345- 46, para 10)

“10. … It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

[35]. In

# Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487

the five golden principles which have been stated to constitute the “panchsheel” of the proof of the case based on circumstantial evidence are:

(i) that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely “may be” fully established;

(ii) that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) that the circumstances should be of a conclusive nature and tendency;

(iv) that they should exclude every possible hypothesis except the one to be proved; and

(v) that 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.

53. The trial Court in para No.180 of the judgment has held that the prosecution has been able to establish not less than 71 circumstances. Though most of them cannot be regarded as circumstances which established the guilt of the accused and are merely primary facts, it can be stated that the main circumstances relied on by the prosecution are the following:-

(a). Ganesh Sait told PW1 – Sulochana, his wife, immediately prior to his departure on 6.1.2007 that he was going with the 1 st accused to Coimbatore and that A1 would be waiting for him at Vadakkumcherry and about his plans to go to Mysore to contact the new business party. Statement made by the deceased to PW1 that A1 had asked him to go alone and not to divulge this fact to any other person.

(b). the call data records of the deceased and A1 which reveals that they were constantly in touch from 4.1.2007 till 6.1.2007 on which day he went scarce.

(c). the deceased was in the company of PW3, a close friend and relative of the deceased that the deceased had called A1 using his phone while at Cherpu. After introducing himself as Sait, the deceased had told A1 that he could amass only 1 Kg of gold instead of 1.5 Kgs as originally assured. PW3 also overheard the deceased asking A1 to contact the party and to ask them if they would be satisfied with 1 kg.

(d). On 7.1.2007 as suggested by PW1, when PW3 called A1, and enquired about the whereabouts of the deceased, he pleaded ignorance. A1 stated that he had no occasion to meet the deceased and that he was laid up at home due to pain on his leg.

(e). Repeated queries by PW2 & PW3 to A1 about the whereabouts of the deceased and the false replies given by him.

(f). Statement by the deceased to PW3 & PW5, his friend and employee respectively, that he was going to Coimbatore with A1.

(g).The accused had a strong motive to do away with the deceased as the deceased insisted that he should return 700 gms of gold which was taken by him earlier. The prosecution relies on the evidence of PW16 to establish this fact and the same stands corroborated substantially by the evidence of PW1.

(h). The deceased was last seen together with the 1 st accused at K.T.D.C beer parlour at Alathur at 3.30 p.m on 6.1.2007 by PW9 – Pramod.

(i). The evidence of PW7, that he had occasion to provide cyanide poison to A1 on 2.1.2007, on the assurance that the same would be returned within two days.

(j). Medical evidence let in by PW17 and supported by Ext.P28 chemical analysis certificate which reveals that the deceased had died due to the combined effects of smothering, blunt injuries sustained to the head and poisoning by cyanide. The conclusion of PW17 that the death could have occurred below 72 hours and above 18 hours to 3.05 a.m on 10.1.2007 and that it was clearly homicidal.

(k). Seizure of MO72 mobile phone of A1 pursuant to his arrest and Ext.P31 the outgoing call records of MO72 phone.

(l). Recovery of the dead body of the deceased at 4.20 p.m on 9.1.2007 pursuant to Ext.P43 disclosure statement furnished by the 1st accused.

(m). Recovery of MO3 shirt worn by the deceased at the time of occurrence on the basis of Ext.P2(a) disclosure statement furnished by A1.

(n). Recovery of MO5 to MO66 gold ornaments from the backside of the house of A1 on the basis of Ext.P3(a) disclosure statement given by A1.

(o). Recovery of MO1 gold chain worn by the deceased at the time of occurrence from coffer No.19 of the Bannari Amman Kovil on the basis of Ext.P5(a) disclosure statement given by the 1st accused.

(p). Recovery of MO4 chappals of the deceased from the house of A2 on the basis of Ext.P6(a) disclosure statement given by A2.

(q). Identification of MO1 , MO2 , MO3, MO4 and MO5 to MO66 by PW1, PW2 & PW3 as clothes and ornaments possessed by the deceased while he had left his house on 6.1.2007.

(r). The call data records of the deceased which is marked as Ext.P37 and Ext.P22 that of PW3 which reveals constant interaction with A1.

(s). Ext.P17 & Ext.P20 records relating to filling of diesel in the Tata Indica car bearing registration No. KL8-U-7181 which were seized based on Ext.P18(a) information furnished by A2.

(t). Ext.P29 relevant entry in the check post register of the Bannari check post, Tamil Nadu revealing that the Tata Indica car bearing registration No.KL8-U-7181 had crossed the check post .

(u). Ext.P25 call details of the mobile phone used by the 2 nd accused which reveals interaction with the 1 st accused and also the fact that the phone was in roaming from 4.06.32 p.m on 6.1.2007 till 11.32.07 a.m on 7.1.2007.

54. Our endeavour shall be to consider whether the above 21 circumstances has been established. For the evaluation of the above, it is necessary to discuss in minute detail, the evidence of the material witnesses examined by the prosecution.

55. PW1 is Sulochana Sidhanath Shinde, the widow of the deceased. She stated that she is originally from Lengera in Sangli District in Maharashtra. Deceased Sidhanath Shinde was her husband. He was running a business in the name and style as “Gold testing and aciding” in Swadeshi buildings at Rice bazar, Thrissur. He also used to secure orders and thereafter, supply finished gold ornaments. She identified the 1 st accused. Four years prior to the death of her husband, he had entrusted 350 grams of gold with A1. A1 used to visit their house frequently. A1 was initially employed at Thrissur and had later shifted to Coimbatore. She had last seen her husband alive at 1.30 p.m on 6.1.2007. At 9.30 a.m 6.1.2007, the deceased had gone to the shop and came back at 1.30 p.m. PW3 Sambaji was with him. They were in a hurry and when she asked him to take his food, he responded by stating that he had no time. He told her that he was going with A1 to Coimbatore and that A1 was waiting for him at Wadakkumcherry. They were also planning to go to Mysore to meet a new business contact. He specifically told her that Pradeep had made him to swear that he would not disclose to anyone the fact that he was going to Coimbatore with A1. A sum of Rs.10,000/- was taken from her towards expenses. He also had taken the gold procured by him from PW2 Sathyan on 5.1.2007 and 6.1.2007.

56. According to PW1, normally her husband used to call her after two hours but on that particular day she did not receive any call. When she dialed his mobile phone with subscriber No.9349846706 she received the response from the service provider that the phone was “switched off” and that the phone was “out of coverage area”. Her repeated calls on that day as well as on the next day yielded the same result. She therefore, contacted PW3 and informed him the details. PW3 then went to the shop of the deceased and he along with CW13 Sachin, PW5 Viswas and CW26 Sajay went to meet A1 at his house. They returned back and informed her that the deceased pleaded ignorance about the whereabouts of the deceased. A1 had told him that he had no occasion to meet the deceased during the last one week and he was laid up in his house due to fever and leg pain.

57. On 8.1.2007, PW3, PW5 and CW26 Sajay went to meet PW2 Sathyan and later they all returned back to her house. She stated all the details and after hearing her they went to the shop of the deceased. After sometime, all of them returned to her house followed by A1. When she asked A1 about her husband, he told her that he had no occasion to meet him or to talk to him over phone. He then told her that he was hungry and she gave him food to eat. Later, he left. The conduct of A1 raised suspicion in her mind and they all decided to lodge a complaint before the police. PW2 and PW3 went out and got a complaint drafted. She signed on the same and they went to the office of the C.I of Police and submitted the complaint. According to the witness, it was on 10.1.2007 that she was informed by her brother Sachin (CW13) and her sister’s husband Sajay (CW26) that her husband has been done away with. She immediately fainted and had to be hospitalized. The dead body of her husband was shown to her late in the afternoon and thereafter, his body was taken to Maharashtra where it was cremated. She returned back to Thrissur on 2.2.2007. On 3.2.2007, she was asked by the S.I of Police to appear before Court and she duly complied. On the said day, the officials of the Bannari Amman temple were present. They produced MO1 gold chain which was worn by deceased Shinde when he had left Thrissur on 6.1.2007. It was identified by her. She also identified the clothes and chappals belonging to the deceased when the same was shown to her.

58. The evidence of PW1 was criticized by the learned counsel appearing for the 1 st accused on various fronts. According to the learned counsel, it was unbelievable that the deceased told her that he was going to Coimbatore with A1 and that he was made to swear that the said fact should not be disclosed to anyone. According to the learned counsel, no such statement was made and even if such a statement was made, the same has no evidentiary value.

59. PW2 Sathyan is a manufacturer of gold and he is a person having long acquaintance with the deceased. He would depose that the deceased had the business of purifying and colouring gold at Rice Bazar, Thrissur. Deceased also used to place orders with him for manufacture of gold ornaments. PW3 is also known to him and he used to visit his establishment along with the deceased. On 5.1.2007 and 6.1.2007, the deceased had visited him. 456 grams of gold chains were taken by the deceased on 5.1.2007 and 679 grams of gold chains were taken from him on 6.1.2007. PW3 was present with the deceased on both the occasion. On 8.1.2007, PW3 and CW13 Sachin along with another relative had come to him and informed that the deceased was missing since the last two days. It is also informed that his phone was found switched off. He made inquiries and later went to the shop of the deceased and then to his house and met PW1. A1 had earlier worked with him. He therefore, contacted Prasad, who is the elder brother of A1 and informed him about the fact. Later, the presence of A1 was secured through Prasad and A1 was asked to come to the shop of Jayan where Prasad was working. When A1 was asked about the whereabouts of the deceased, he pleaded ignorance and informed them that he had no occasion to meet the deceased for the past more than one week. He also told him that he was laid up at home.

60. Thereafter, PW2 along with others went to the house of PW1 and they discussed the matter. They finally concluded that A1 was hiding something and decided to approach the police. He along with PW3 got a complaint drafted and returned back to the house of PW1. The complaint was read over to PW1 and after getting her assent got her signature affixed. They all went to the office of the C.I at the Thrissur East police and submitted the complaint. On 9.1.2007 at 9.00 a.m, A1 was summoned to the station. They waited outside. At about 11.30 a.m, the C.I invited him inside and informed him that Sidhanath Shinde has been murdered. They were asked to arrange vehicles. He did not accompany the police party. Late in the evening on 9.1.2007, PW3 had called him up and informed him that the body of the deceased has been traced out. He went to the police station on the next day and identified the 62 gold chains supplied by him to the deceased. They are MO5 to MO66. He stated that the said ornaments contains the seal of his shop as A/S 916 KDM. He also identified MO2 pant and MO3 shirt which was worn by the deceased when he had met him on 6.1.2007.

61. PW2 was cross examined extensively by the learned counsel appearing for the 1 st accused. He denied the suggestion that he had a relationship with one Kavitha and that A1 had informed this fact to his brother-in-law. He admitted that he had gone with PW3 to get Ext.P1 drafted. He along with PW3 had furnished the details. The complaint was read over to PW1. Several persons including PW3 and the other relatives of the deceased were present at the police station on 9.1.2007 when A1 had come with two others.

62.  The learned counsel appearing for the 1 st accused attributed ill motive on the part of PW2. According to the learned counsel, it was PW2 who was instrumental in implicating the 1 st accused in the crime. Referring to Ext.D3 it was argued that PW2 was involved in other crimes as well. When Ext.D4, the copy of the private complaint which led to the registration of Ext.D3 was put to PW2, he answered that he was unaware of the fact that he was implicated as an accused.

63. PW3 is Sambaji, a near relative and close friend of the deceased. He last saw the deceased alive at 2.00 p.m on 6.1.2007. He used to talk to the deceased over phone. The last conversation was on 5.1.2007. Himself and the deceased had planned to go to Maharashtra on 6.1.2007. It was for attending a festival. On the previous day the deceased informed him that the trip was cancelled as he had to go to some other place. He was asked to go to the shop of the deceased on 6.1.2007. On that day, he along with the deceased went to the shop of PW2 Sathyan. The deceased procured 679 grams of gold from PW2. On 5.1.2007, the deceased had procured 456 grams of gold from PW2. While they were returning back, when they reached the Cherpu bus stop, the deceased took his mobile phone and called A1. This was because the deceased was not able to get connected with A1 using his phone. PW3 overheard the deceased calling A1 as Pradeep and telling him that he was ‘Sait’ and that he was able to amass only one kg of gold instead of 1.5 Kg. Deceased wanted A1 to discuss the matter with the party. He stated that the subscriber number of his mobile phone is 9895018739. He testified that he returned back to Thrissur with the deceased and went to his house. He obtained a sum of Rs.10,000/- from PW1 and also took the gold which was procured from PW2. He also stated that he overheard the deceased informing his wife that he was going to Coimbatore and A1 would pick him up from Vadakkumcherry. He along with the deceased returned to the shop of the deceased. The deceased weighed the entire gold ornaments and took 62 gold chains weighing a total of 1080 grams. The balance gold ornaments were entrusted with CW13. He informed that he was going to Coimbatore with A1. According to him, he used to accompany the deceased on his trips but on this day, as the deceased was going with A1, an exception was made.

64. On 7.1.2007 just before 10.00 a.m, PW1 called him over phone and informed him that she was not able to get in touch with the deceased since he left the previous day. PW3 pacified PW1 and told her that there is nothing to worry as A1 was with him. After 10.30 a.m, he made a call to A1 and asked him to hand over the phone to the deceased. A1 responded by saying that the deceased was not with him. He also stated that he had no occasion to meet the deceased for the past one week as he was laid up with fever and leg pain and was at home. He returned back to PW1 by about noon on 7.1.2007 and appraised her of the developments. He thereafter went to his shop later in the day he along with CW13 and CW26 who are relatives of PW1 went to meet A1. He was found standing at the Kannambra bus stop and when they inquired about the whereabouts of the deceased, A1 came up with the same answers. On 8.1.2007, he along with the relatives of the deceased went to PW2 and appraised him of the situation. They along with PW2 went and met PW1. Later, they went to the shop of Jayan where Prasad, the brother of A1 was working. A1 was summoned and when he was questioned, he reiterated the same stand. They went back to the house of PW1 and it is stated by him that A1 also joined them later. When he was questioned by PW1 he claimed ignorance. He told PW1 that he was hungry and consumed the food offered by PW1. Later he went off. As all the persons who were present there entertained grave suspicion in the conduct of A1 they decided to lodge a complaint. Ext.P1 was got drafted and after getting the same signed by PW1, preferred the same before the C.I of Police. On its basis, a crime was registered. He also stated that on 9.1.2007 he went to the police station and had occasion to witness A1 being brought to the police station. After sometime, the C.I of police, summoned them inside and informed them that Shinde has been murdered. They were asked to make available vehicles for transportation of persons who were having acquaintance with the deceased. PW2 arranged a vehicle and at about 12.00 noon, he along with PW4, PW5, some policemen, the C.I of police and about 10-20 gold workers proceeded to Sathyamangalam. On their way, A2 was picked up from Royal Junction, Vadakkumcherry. The C.I duly arrested A2 and MO73 mobile phone found in his possession was seized. On reaching the Nassiri bridge by the side of the Sathyamangalam-Mysore National Highway, the 1 st accused pointed out the body of the deceased lying beneath the bridge in the water channel. He identified the body of the deceased. According to the witness though police officials attached to the Tamil Nadu and Karnataka police department came to the scene of crime, no assistance was offered. The C.I conducted the inquest over the body and later, MO3 shirt was seized at the instance of A1. MO2 pant was also seen near the body. Though they waited for the ambulance to arrive, it did not happen. Being left with no alternative, body was shifted to Walayar in the police jeep itself. The jeep was driven up to Walayar and thereafter, the body was shifted to Thrissur medical college hospital in an ambulance. On 10.1.2007 at 8.00 a.m PW3 went to the police station and PW23 showed him MO5 to MO66 which were identified by him. The body was obtained after the postmortem was completed and was taken to Maharashtra for the funeral.

65.  PW3 being a star witness of the prosecution was cross examined in great detail. He stated that his statement was recorded by the police at 5.00 p.m on 10.1.2007. According to him, he was present at the police station till 10.30 a.m on 10.1.2007. MO5 to MO66 series were shown to him by the C.I and he identified the same. He stated that he had taken random samples to arrive at the said conclusion. He stated that the seals found on the gold ornaments was that of the shop of PW2. He admitted that the details of gold ornaments were not mentioned in Ext.P1 complaint which was drafted by an advocate clerk on the basis of the details furnished by himself and PW2. He stated that along with him, PW1, PW2, PW5 and CW13 had gone to the police station for lodging Ext.P1 complaint. They reached Sathyamangalam after 4.00 p.m. The witness stated that he had stayed at Thrissur till 11.1.2007 and thereafter, proceeded to Maharashtra to attend the funeral. He stated that he is a near relative of the deceased.

66. PW4 is one Bhimarao who is also a resident of Maharashtra and engaged in gold business at Thrissur. The murder of Shinde was informed to him over phone by PW3 on 9.1.2007 and hearing the said news he proceeded to the police station. At 12.30 p.m, he along with PW3, PW5, CW4, the C.I of police and his police party proceeded to Sathyamangalam. A2 was arrested on the way and MO73 mobile phone found in his possession was seized. At about 4.00 p.m they reached near a bridge by the side of the road and the body of the deceased was found lying on the water channel beneath the bridge. MO2 pant was found near the body and MO3 shirt was recovered on the basis of the information furnished by A1. He stated that he is an attester to Ext.P2 mahazar. He also spoke about the shifting of the body of the deceased to Walayar in a jeep owing to unavailability of an ambulance.

67. PW4 would further state that he along with the C.I, his police party and others along with the accused went to the house of A1 at Kannambra in a tempo traveller and reached the place at 1.30 a.m on 10.1.2007. A place on the back side of the house was pointed out by A1 and MO5 to MO66 gold ornaments were disinterred from that place. 62 gold chains weighing approximately 1Kg was found and the same was seized as per Ext.P3 mahazar. He stood as an attester to the said mahazar as well. When MO5 to MO66 were shown to him, he identified the same. He testified that the gold ornaments contained the marking A/S 916 KDM signifying that the same was manufactured in the shop of PW2. According to him, they proceeded to the house of Sunny from where the Tata Indica car bearing registration NO.KL8-U- 7181 was seized.

68. PW5 was cross examined in great detail. He stated that the deceased was his friend and was unrelated. He admitted that PW2 & PW3 were his friends. According to him, since gold ornaments were involved, he was asked to take the electronic balance as well while proceeding to the police station. He deposed that MO2 pant was lying about 4 feet away from the dead body but MO3 shirt was not visible from the road. They later went to the house of A1 and found the father, mother, elder brother and father’s brother of the 1 st accused were present there. He stated that he had occasion to note the house number of A1 as IV/32.

69. PW5 Viswas was an employee of the deceased and was working at “Arun Gold testing and Aciding”, the shop of which the deceased was the proprietor. He stated that the deceased used to entrust gold with A1 for getting manufactured gold ornaments. A1 used to usually come to the shop and discuss matters relating to the supply of gold. According to him, he had last seen the deceased alive at 2.00 p.m on 6.1.2007. The deceased had come to the shop and after weighing the gold ornaments took gold chains weighing 1080 grams. The balance 55 grams of gold was entrusted with CW13. He informed him that he was going to Coimbatore with A1. On 9.1.2007 after 4.00 p.m., he was shown the dead body of the deceased near the Nassiri bridge and he had identified the same. He spoke about the shifting of the body to the Medical College hospital and also identified the clothes and ornaments. He identified MO5 to MO66 as the gold ornaments which were taken by the deceased at 2.00 p.m on 6.1.2007. He stated that he went to Maharashtra to attend the funeral ceremonies and returned back on 15.1.2007. His statement was recorded on 16.1.2007. Though he along with the accused and the police made an attempt to recover the mobile phone of the deceased based on the information furnished by PW1, it did not yield any result. In the same manner attempt was made to search and find out the finger ring of the deceased but they did not succeed. On 19.1.2007, he along with the police party and the accused proceeded to the Bannari Amman Kovil at Tamil Nadu. The 1 st accused pointed out the coffer on the southern side of the temple and when the coffer was opened in the presence of the authorities MO1 chain was found inside. He stood as an attestor to Ext.P5 mahazar which was prepared after the seizure. He also went to the C.I and the accused to the flat bearing No.47/325 of the 1 st accused where inspection was conducted. Later, at 12.30 p.m on 20.1.2007 MO4 series chappals of the deceased were seized from behind the house of A2 on the basis of Ext.P6(a) disclosure statement. He spoke about the seizure of the clothes worn by the accused at the time of incident. The witness was cross examined in detail. He spoke in an unequivocal terms that the deceased had informed him in the presence of CW13 Sachin, the brother-in-law of the deceased that he was going to Coimbatore along with A1.

70. PW6 was the then Deputy Commissioner of Bannari Mariamman Thirukovil, Bannari. She deposed that on 17.1.2007 she received a requisition from the C.I of police Thrissur East that a person by name Pradeep had dropped a gold chain in the Hundial of the temple. It was also mentioned that MO1 belonged to deceased Shinde and the same was involved in a crime and therefore, was required to be produced in Court. After obtaining permission from the H.R and C.E Department, the Hundial was opened on 19.1.2007 at 9.30 a.m in the presence of the temple authorities, the police and also the accused. A sum of Rs.3,65,000/- was found inside along with MO1 and some other gold and silver items. The 1 st accused is said to have pointed out MO1 gold chain which weighed 37 grams. It also had 63 white beads and 9 red beads kept in place using a gold wire and with a U-shape hook. When the police asked her to hand over MO1, she issued Ext.P9 letter in which it was mentioned that orders were awaited from the Commissioner. She assured that it will be produced in Court if ordered. Ext.P5 mahazar was prepared which was signed by PW6. Later, summons was received from the J.F.M.C, Thrissur and pursuant to that, she had issued Ext.P10 letter to the C.I of police on 1.2.2007 informing him that MO1 would be produced before the Court on 3.2.2007. As undertaken, the MO1 was produced before Court and the same was identified by the wife of the deceased who was present there. According to the said witness, the Hundial was last opened on 13.2.2006. The witness withstood the cross examination and stated that though the police insisted that the Hundial is to be opened on 17th itself, she had to obtain assent from the Commissioner. She wrote a letter on 17th itself seeking permission of the Commissioner and sanction was obtained on the 18th . She stated that the contents of Hundial was entered in the Hundial Assortment Register and that only MO1 gold chain was found inside the Hundial.

71. PW7 – Bipin is an employee of the Aiswarya jewellery which is owned by one Antony. The same is functioning at the Rice Bazar, Thrissur. He stated that he has been working at Aiswarya tools for about one year prior to the incident in the instant case. He is having acquaintance with A1 as he frequents the shop for purchasing materials. On 2.1.2006, A1 had come to his shop and sought for some cyanide which was supplied. He was told that the same would be returned within two days. There is an apparent error in the date as his evidence would reveal that cyanide was procured by A1 just days before the death of Sidhanath. He would clarify the same in the chief examination itself. Obviously the date intended is 2.1.2007 and not 2.1.2006. PW7 was cross examined in detail. He deposed that Aiswarya tools, where he works deals with implements and tools which are required for fabrication of gold ornaments and that they do not deal with cyanide. He stated that cyanide was required for colouring gold. Cyanide was kept in the shop for carrying out the colouring works. He further stated that he informed his employer on 10.1.2007 about the fact that he had handed over cyanide to A1. According to him, his statement was recorded by PW23 on 16.1.2007. Delay was occasioned because PW23 was not in station and was in Goa for the investigation in some other matter.

72. PW8 – Rinto had worked at the Aiswayra Tools and he was having acquaintance with the deceased. The deceased was carrying business in the upstairs of the same building. PW8 had purchased a motor cycle and at the time of purchase, he was provided with a reliance mobile phone as a free gift. He used the said phone for 20 days and thereafter, sold the same to the deceased for Rs.1200/-. According to him, the subscriber number is 9349846706. The said phone was thereafter used by the deceased. The connection address was not changed and it stands as such. In his cross examination he stated that the said bike is still being used by him and the same was purchased after availing finance from the IOB.

73. PW9 – Pramod is a gold worker and he stated that he is not having any acquaintance with the deceased. He identified the 1 st accused. He stated that he has worked with A1 in the shop of PW2. He had no occasion to come in touch with A2 and was seeing him for the first time. Since he did not support the prosecution case, he was confronted with his previous statements in writing and Exts.P12 and P12(a) were marked.

74. PW10 – Unnikrishnan @ Kannan is the owner of a Tata Indica car bearing registration No.KL8-U- 7181. He is having close acquaintance with A2 who is a taxi driver. On 6.1.2007 at 10.30 a.m while he was proceeding to his shop in a car, he was signalled to stop by A2. A2 requested that his car be provided to take his employer for medical treatment to Coimbatore. He agreed to lend his car and A2 got into the car and after dropping him at a shop drove away with the car. Late in the evening, he was called by A2 from a mobile phone bearing subscriber No.9446146092 and he was informed that he was stuck in Coimbatore and would be able to return the car only on the next day. PW10 informed A2 that the car was already booked for service on the next day and demanded that the car be brought back as early as possible. On 7.1.2007 at 12.00 noon he had called A2 over phone. A2 told him that he had reached Kannambra and would return the car after washing it. PW10 along with his friend went to the house of A2 and found that he was having his food. When he took back the car, A2 offered a sum of Rs.2000/- and when he refused, A2 insisted that he accept a sum of Rs.1500/-. He accepted the said amount. While taking the car back, PW10 noticed that a green coloured washing cloth kept inside the car was missing and he had also noticed from the odometer that the car covered a long distance. He stated that he used to park the car in the house of CW18 – Varghese who was one of his neighbors. On 10.1.2007 when he reached the house of Varghese, he came to understand that the car had been taken away by the C.I of police Thrissur. He was asked to appear before the police. Later, the interim custody of the car was handed over to him.

75. PW11 Sachin Ganapathy is a person of Maharashtrian origin and was engaged in the jewellery business at Coimbatore. He admitted before Court that he had a mobile phone connection in his name having subscriber No.9442341448. He testified that he was not having any connection with the accused. HE was confronted with his previous statements and the portions were marked in evidence as Ext.P14 and P15. He identified his signature in Ext.P16 mahazar which was prepared while seizing Ext.P15 driving licence.

76. PW12 is the employee of a petrol pump by name ‘Geetha Agencies” at Vadakkumcherry. He testified that on 20.1.2007 the Circle Inspector of police, along with his police party had come to the petrol pump. They had inspected the bill book from which it was revealed that diesel fuel had been filled in a car with registration No.KL8U 7181.

28. 76 litres of fuel had been filled for a total cost of Rs.1000/-. He identified Ext.P17 which is the carbon copy of the bill. He identified Ext.P18 mahazar which was prepared by the Officer. He produced the original of the bill book before Court and the same was marked as Ext.P20. He deposed that the accused was not known to him. He also stated that on 20.1.2007 persons who were standing in the dock were also present along with the police. In cross examination, he deposed that Ext.P20 will not reveal that the same was produced before the Sales Tax authorities. He denied the suggestion of the defence that the bill book was prepared by him at the instance of the police.

77. PW13 – Sasi deposed before Court that he is a resident of Thrissur and PW3 Sambaji is a person known to him. The shop room where PW3 runs his business is situated near to the concern where he is employed. He further stated that he had obtained an Airtel mobile connection in his name and the said mobile connection was being used by PW3. PW3 was not having an identity card with him and therefore, he requested PW13 to secure a mobile connection for him. In cross examination he stated that he has known to PW3 for the past 25 years.

78.  PW14 stated that he was working as the Head of the Legal Department of Bharathi Airtel Ltd, Kerala Circle. On 14.2.2007, he issued Ext.P21 letter which revealed the address details of Airtel Mobile connection bearing No.9895018739. According to the said witness, the mobile connection stood in the name of Sasi, Kakkassery House, Kechery, Choondal Grama Panchayath, Thrissur. He produced Ext.P22 which is the statement detailing the outgoing calls which emanated from the said number for the period from 6.1.2007 to 7.1.2007. He deposed as to the genuineness of the exhibit and also about the certificate issued by him. After perusing Ext.P22, the witness stated that there were outgoing calls from this number to 9442341448 on 6.1.2007 at 12.56 p.m, on 7.1.2007 at 10.46 a.m and 12.59 p.m. He also stated that Ext.P21 and P22 were furnished by him to the Circle Inspector of Police, East police station, Thrissur. In cross examination the witness stated that he had personally extracted Ext.P22 from the computer. He also stated that the server was located at Chennai.

79. PW15 was working as a Divisional Engineer, Net work Sub System (NSS), Telephone Bhavan, Chembukkavu, Thrissur. He stated that he had issued the ID details and call details with tower location in respect of BSNL mobile No.9446146092. He identified his signature and office seal in the certificate which was marked as Ext.P23. He also deposed that Ext.P24 was the report issued by the Divisional Engineer (Vigilance) and as per the same, the aforesaid mobile number stands in the name of Rinesh B, Poovathinkal House, Elanad P.O., Thrissur. Ext.P25 is the call detail including tower location of the said mobile number for the period from 9.12.2006 to 9.1.2007 and Ext.P26 is the covering letter. He also deposed as to the authenticity of the call details and the certification issued by him. He stated after perusing Ext.P25 that there was an incoming call to the said number from mobile phone No.9442341448 on 6.1.2007 at 13.17.41 pm and at that time, mobile phone No.9446146092 was in the tower location of Panthalampadam. The towers at Puthukkodu, Vadakkumcherry and Erumayoor are in Palakkad district and that from 6.50 p.m to 8.43 p.m on 6.1.2007, the tower location details could not be traced and therefore, the same is missing in Ext.P25. The witness asserted that from 6.50 p.m to 8.43 p.m on 6.1.2007 the mobile phone was in roaming mode and that is the reason why the tower details of the incoming calls are not there in Ext.P25. It is also stated that from 11.30 a.m. on 7.1.2007 the mobile number was in the tower location in Kerala. In cross-examination, it was put to him that Exts.P23 and P25 were issued without complying with the provisions of law which was promptly denied. In re-examination, the witness stated that due to climatic variations, lightning etc., the tower positions can vary due to difference in catching signals.

80. PW16 is a goldsmith, who is acquainted with the deceased as well as the accused. He deposed that he had occasion to witness the dead body of the deceased near to the Nassiri bridge and that he was present during the inquest. He stated that the accused No.1 used to frequently visit the deceased. The deceased used to tell him about his dealings which he had with the first accused. On one occasion, the deceased told him that the accused No.1 had failed to return 700 gms of gold entrusted with him in spite of his repeated demands. During cross-examination, he specifically stated that the deceased had told him about the transaction involving 700 gms of gold, about three months prior to his death.

81. PW17 is Dr.N.A.Balaram who conducted the autopsy. His evidence was discussed earlier.

82. PW18 is the Head Constable attached to the Puliyampatty police station in Sathymangalam sub division in Erode District. The said officer was on duty at the Bannari Check Post, Tamil Nadu on 17.1.2007. He deposed that Page No.6 of the register pertaining to 6.1.2007 was seized by the Police as per Ext.P29 mahazar. The said page reveals that an Indica car bearing registration No.KL 8U 7181 had passed through the check post at 10 pm on the said date. According to the said witness, the vehicle had come from Trichur and was on its way to Mysore. The original of the register was seized by the Circle Inspector of the Police. The said register was returned after acknowledging the same as per Ext.P29(a). Through him photocopy of page 6 was marked as Ext.P30. According to him the accused was present at the time of seizure of register. The witness was directed to produce the original of the register. However, he deposed that the original was not available as it is retained only for one year. In cross examination he deposed that he was on duty at the check post only for a week and the register was handed over by him to his successor.

83. PW19 was working as the Divisional Engineer, IT Mobile Services Salem. He had issued the details of mobile No.9442341448 for the period pertaining to 22.12.2006 to 7.1.2007. He deposed about the authenticity of the call details and also as regards the certificate issued by him. Through him, the prosecution marked the call details of the number 9442341448 as Ext.P31. Ext.P32 is the certificate issued under the IT Act and Ext.P33 is the covering letter. Ext.P34 is the address proof of the said phone number. In cross examination the witness stated that the number and address of the subscriber are not stated in Ext.P32 and P35. Further, he denied that the certification was not in terms of the IT Act.

84. PW20 is the Sub Inspector of Police, East Police Station, Trissur. He testified that on 8.1.2007, at 5 pm, a complaint submitted by PW1 was forwarded to him by PW23 for the purpose of registration of the crime. Consequently, Ext.P36 crime was registered under the head “Man missing”. In cross examination the witness deposed that Ext.P1 was handed over to him by PW23. It was brought out through him that Ext.P36 reached the court at 10.30 am on 10.1.2007. After registration, the FIR was entrusted with the writer of the Police Station. He further deposed that on every day a police officer is sent to the jurisdictional court and a despatch register is maintained at the station. It is brought out through him that Crime No. 19 of 2007 registered on the same day reached the court on 9.1.2007 itself.

85. PW21 is the legal counsel for Reliance Communications and through him the call details of mobile phone number 9349846706 allegedly used by the deceased for the period 22.12.2006 to 6.1.2007 was marked as Ext.P37. Ext.P38 is the covering letter. The witness deposed that the server was maintained by him and that it was functioning properly and the information was extracted using the prescribed process. In cross examination the defense challenged his competence to issue the call details. He deposed that he had worked in the said Company only till 11.10.2008.

86. PW22 is the Deputy Manager (Legal) of Reliance Communications and through him Ext.P39 revealing the address details of the subscriber of mobile phone number 9349846706 was marked. He deposed that the subscriber of the phone is Rinto J, Kuttikattil (H), Kecherry, Trichur. In cross examination, the witness deposed that the name of the father of Rinto is not shown in Ext.P39. He affirmed that the correct number and details of the subscriber was mentioned in Ext.P39.

87. The sequence of evidence conducted by PW23 has already been discussed earlier and the contentions raised by the respective counsel will be evaluated later.

88. Assailing the finding of guilt and conviction, the learned counsel appearing for the 1 st accused has raised several contentions. We shall discuss the same in more detail.

89. One of the main contentions raised is with regard to the jurisdictional competence of PW23, the Investigating Officer. The contention of the learned counsel is that PW23 is not jurisdictionally competent to entertain and investigate Ext.P36 FIR lodged by PW1. The said contention is raised banking on the fact that the admitted case of the prosecution is that the deceased was ultimately done to death at Sathyamangalam which is beyond the territorial jurisdiction of PW23. In order to substantiate the said contention, the learned counsel would refer to Section 156 of the Code of Criminal Procedure and contends that the territorial jurisdiction of a Police Station is co- extensive with that of the appropriate court which is empowered to inquire into or try the case under the provisions of Chapter XIII. The learned counsel also takes gross exception to Ext.P51 authorization letter dated 9.1.2007 to contend that the said authorization letter could not have preceded Ext.P46 which is a report by which Section 302 read with Section 34 of the IPC was added. It is pointed out that when offence under Section 302 was incorporated only on 10.1.2007, it is incomprehensible as to how Ext.P51 could have been issued authorizing investigation of crime No. 20 of 2007 under Section 302 of the IPC. According to the defense, this itself is ample testimony to the fact that investigation was commenced, continued and finalized by PW23 without any authorization and Ext.P51 was brought into existence just prior to the filing of the final report. It is also contended that if Exhibit P51 order was obtained on 9.1.2007, then naturally reference to the same would have been made in Exhibit P 49 remand report which is dated 10.1.2007. Finally it is submitted that the eagerness of PW23 to carry on with the investigation and effect recoveries outside the limits of his local jurisdiction unmistakably points to the fact that the investigation has not been fair and impartial. The accused is greatly prejudiced and the trial is vitiated is the submission of the learned Counsel.

90. We are of the view that the said contention has no legs to stand. Obviously, in the case on hand Ext.P36 crime was registered on the basis of the information furnished by PW1 that her husband was missing. The prosecution asserts that based on the complaint the 1 st accused was called to the police station and on interrogation he had revealed his complicity in the crime and gave a confessional statement. The prosecution allegation is that the the 1 st accused contacted the deceased and after making him believe that there were buyers for his ornaments persuaded him to go to Vadakkumcherry from Trissur from where he was taken to Satyamangalam, in which place he was done to death. He had also robbed the gold ornaments which were found in the possession of the deceased. The contention that registration of crime under the head “man missing” has no proximate link to the incident in this case is difficult to comprehend. This aspect can also be approached in a different manner. The jurisdiction of the officer investigating the cognizable offence is co-extensive with the jurisdiction of the court empowered to try the offence. It will be apposite to refer to the relevant provisions of the Code at this juncture.

91. Section 156 of the Code deals with the power of the Police officer to Investigate cognizable case. It reads as follows:

# Section 156. Police Officer’s Power to Investigate Cognizable case

(1) Any officer- in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called In question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) xxxxxxxxxxxxxxxxxxxxx

92.It is beyond cavil that Section 156 (1) empowers the officer to investigate any cognizable offence and the said power is coextensive with the power of the Court having jurisdiction to inquire or try the offence.

93. Section 178 of the Code lays down the jurisdiction of the Court to inquire into or try the offence .The said section reads as follows:-

# 178. Place of Inquiry or trial

(a) When it is uncertain in which of several local areas an offence was committed, or

(b) Where an offence is committed partly in one local area and partly in another, or

(c) Where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) Where it consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas.

94. A reading of the aforesaid sections would make it clear that S.177 provides for ‘ordinary’ place of enquiry or trial. S.178, inter alia, provides for place of enquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in another and where it consisted of several acts done in different local areas, it could be inquired into or tried by a Court having jurisdiction over any of such local areas. In view of the above, it cannot be held that the SHO did not have territorial jurisdiction to investigate the crime. Moreover 156 (2) of the Code mandates that no proceeding of a police officer in a case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

95. It will also be apposite to refer to Section 181 of the Code which lays down the place of trial in case of certain offences

Section 181

(1) xxxxxxxxxxxxxxxxxxx

(2) xxxxxxxxxxxxxxxxxxx

(3) Any offence of theft, extortion or robbery may be inquired into or tried by a court within whose local jurisdiction, the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to be stolen property.

(4) xxxxxxxxxxxxxxxxxxx

(5)xxxxxxxxxxxxxxxxxxxx

96. Further, Section 462 of the Code explains the consequences of initiation of proceedings in the wrong place. The said provision reads as follows:-

# S. 462 Proceedings in wrong place

No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

97. In the case on hand, the relevant provisions of the Code will enable the Sessions Court, Thrissur to inquire and try the offence as part of the offence was committed within the jurisdiction of the said court. In that view of the matter, the contention raised that PW23 could not have commenced and carried out investigation in the instant case cannot be upheld. The appellant apart from contending that PW23 could not have carried out the investigation as the dead body was found outside his jurisdictional limits has not been able to convince us that any failure of justice has been occasioned.

98. Much argument was advanced by the learned counsel challenging Exhibit P51 authorization letter which was issued by the Supt of police, Thrissur to PW 23. The said letter is dated 09/01/2007 and it states that oral instruction has been received from the Inspector General of police, North zone, Kozhikkode, authorising PW 23 to conduct investigation in crime number 20/07 of Trissur Police Station. This authorization is attacked on the ground that Exhibit P51 did not reach the learned magistrate along with Exhibit P49 remand report. It is pointed out by the learned counsel that it is only in the remand report that section 302 is incorporated and if Exhibit P51 was in existence on 09/01/2007, there was no difficulty for the investigating officer to produce the same before court along with the remand report.

99. We have bestowed our anxious consideration to the submission of the learned counsel. It does not appear to us that the mere fact that Exhibit P51 did not reach the court on the next day itself is sufficient to conclude that Exhibit P51 was brought into existence only at the time of filing the final report. As rightly held by the learned Sessions judge PW23 received reliable information from the first accused on 09/01/2007 with regard to the commission of the offence under section 302 of the IPC and the records amply reveals that the first accused was arrested at 12 noon on 09/01/2007 itself. The fact that the remand report reached the court on the next day itself speaks volumes about the swift manner in which the investigating officer had acted. We are not impressed with the said contention raised by the learned counsel.

100. The learned Counsel has also argued much about the omission by the Investigating officer to mention in Exhibit P49 remand report various matters including the fact of receipt of Exhibit P51. The learned Sessions Judge had repelled the said contention holding that the Investigating officer was not bound to include each and every other aspects in the remand report. It has to be borne in mind that the act of directing remand of an accused is fundamentally a judicial function. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under S.167 is that investigation cannot be completed within 24 hours. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. (See

# Manubhai Ratilal Patel v. State of Gujarat & Ors; 2013 (1) SCC 314

That being the settled position, there is no point in contending that the remand report should contain each and every minute aspect as the Case Diary by itself would be produced before the Magistrate. We therefore hold that there is no merit in the challenge raised to Exhibit P51.

101. The learned counsel would attack the evidence of PW1 with much vehemence. The prosecution lays much emphasis to the assertion by PW1 that the deceased had told her when she had last seen him alive at 1:30 PM on 06/01/2007 that he was going along with Pradeep to Coimbatore. He had also stated that the first accused would be waiting for him at Vadakkumcherry and that they would go together to Coimbatore and from there to Mysore after meeting their business contacts. One of the most important circumstance is the statement made by the deceased to his wife that the 1 st accused had made him to swear that he would not disclose the fact that he was going with him to any person. The learned counsel challenges the admissibility of the statement on various grounds. It is contended that no such statement was actually made and the statement made is inadmissible in evidence.

102.  In order to advance the contention that no such statement was actually made, the learned counsel takes a tortuous route. It is argued that the prosecution has not been able to establish the telephonic conversation which took place between the accused and the deceased as the evidence let in by the prosecution to prove the recovery of MO 72 phone, allegedly from the possession of the first accused is inherently weak for various reasons. The assertion is that the prosecution had failed to prove that MO72 was actually seized from the possession of the first accused. It is also contended that MO72 was not packed and sealed to prevent tampering of the equipment and its contents. Further contention is that the prosecution had failed to prove that the mobile connection number 9442341448 stands in the name of the first accused and that the same was used by him or that the said number was used in MO72. Finally it is contended that the prosecution has miserably failed to prove that Exhibit P31 call details pointed to the cell number used in MO72. The learned counsel also relies on the judgements reported in

# Rabindranath Prusty v. State of Orissa, 1984 Cri. L.J. 1392

# Sahib Singh v. State of Punjab, (1996) 11 SCC 685

# Bhagwan Singh v. The State of Rajasthan, AIR 1976 SC 985

and

# Kehar Singh v. State (Delhi Admn.), AIR 1988 SC 1883

to impress upon us that the absence of independent witnesses to prove the seizure is fatal.

103. In order to advance the contention that MO72 was thrust upon the first accused, the main argument is that Exhibit P40 mahazer in respect of the seizure of MO72 mobile phone was not produced before court along with the remand report. As held by us earlier, the purpose of filing a remand application is for the purposes enumerated in section 167 of the Code and the mere fact that the mahazar was not sent along with the remand report cannot be a reason to discard the seizure of MO72. More over, Exhibit P49 remand report clearly reveals that the 1st accused was arrested at 12 noon on 9.1.2007 and the mobile phone “Nokia N-GAGE” found in his possession was seized. The model name of the mobile phone has been inscribed as a drawing in Exhibit P49 report. In view of the above, much emphasis cannot be placed on the fact that Exhibit P40 mahazar was not submitted before court along with Exhibit P49.

104. The learned Counsel has highlighted that most of the mahazars prepared in the instant case has been attested only by Police Witnesses and no independent witnesses have been called to witness the search. This all pervasive argument has been raised in the instant case.

105. In a catena of judgments Apex court has held that no infirmity attaches to the testimony of police officials. Merely because they belong to the police force there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of police officials, if found reliable. The rule of prudence requires that courts should carefully scrutinize their evidence as they can be said to be interested in the result of the case projected by them. If the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. This question has been laid to rest by the Apex Court in

# Gyan Chand and Others v. State of Haryana (2013 (14) SCC 420),

in which case, after scanning a slew of judgments on this point , it was held as follows :-

25. The next question for consideration does arise as to whether it is necessary to examine an independent witness and further as to whether a case can be seen with doubt where all the witnesses are from the police department. In

# Rohtash v. State of Haryana, JT 2013 (8) SC 181

this Court considered the issue at length and after placing reliance upon its earlier judgments came to the conclusion that where all witnesses are from the police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under:

“Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon.”

(See also:

# Paras Ram v. State of Haryana, 1992 KHC 948 : AIR 1993 SC 1212: 1992 (4) SCC 662 : 1993 SCC (Cri) 13

# Balbir Singh v. State, 1996 KHC 1421 : 1996 (11) SCC 139 : 1997 SCC (Cri) 134

# Akmal Ahmad v. State of Delhi, 1999 KHC 1061 : AIR 1999 SC 1315 : 1999 (3) SCC 337 : 1999 SCC (Cri) 425 : 1999 CriLJ 2041

# M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, 2004 KHC 246 : AIR 2003 SC 4311 : 2004 (1) KLT SN 75 : 2003 (8) SCC 449 : JT 2003 Sup 2 SC 459 : 2003 CriLJ 4996

and

# Ravinderan @ John v. Superintendent of Customs, 2007 KHC 3662 : AIR 2007 SC 2040 : 2007 (6) SCC 410 : JT 2007 (7) SC 47 : 2007 (3) KLT SN 13 : 2007 CriLJ 3414

26.  In

# State, Govt. of NCT of Delhi v. Sunil and Another, 2001 KHC 37 : 2001 (1) SCC 652 : 2001 (1) KLJ NOC 44 : 2001 CriLJ 504

this Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the Court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through crossexamination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

27.  In

# Appabhai and Another v. State of Gujarat, 1988 KHC 798 : AIR 1988 SC 696 : 1988 Supp SCC 241 : 1988 SCC (Cri) 559 : 1988 CriLJ 848 : 1988 (1) Crimes 606

this Court dealt with the issue of non-examining the independent witnesses and held as under:

“The prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.”

28. The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.

29.  In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness.

Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed.

In view of the above, the submissions of the learned counsel for the appellants in this regard, are held to be without any substance

106. We have also independently applied our mind and we do not find any merit in the contention raised by the learned counsel. After having analysed the evidence of PW23 in extenso, we are of the view that there is no reason to view the evidence of PW23 with suspicion. Further more we also find no reason to doubt the evidence of PW 4 and 5 who stood as attestors to the mahazers.

107. Much effort was put in by the learned counsel appearing for the first accused to contend that mobile connection number 9442341448 did not stand in the name of the first accused and that it was not used by him. It was argued by the learned counsel that the mobile number stood in the name of PW 11. When he was examined in court, PW 11 did not support the prosecution case. Though he admitted that he had a mobile connection with the number 9442341448 he would state that he had lost the mobile phone about 2 1/2 to 3 years back. He also denied having any acquaintance with the first accused. It is also the contention of the learned counsel that though the prosecution allege that MO72 mobile phone was allegedly seized from the possession of the first accused, the I.M.E.I number of the phone was not noted by the investigating officer. Reliance is placed on the judgment of the Hon’ble Apex court in

# State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005 SCC (Cri) 1715

to contend that prosecution should establish a link between the I.M.E.I number of the instrument and the cellphone number which in turn should co-relate with the call records. On the above basis it is contended that Exhibit P31 call data records does not pertain to the call details generated from MO72 mobile handset.

108. The counsel appearing for the 1 st appellant is justified in contending that Exhibit P31 call details does not show the cell ID number or the I.M.E.I. number of the mobile phone bearing No.9442341448. It is on its basis that the contention is raised that Exhibit P31 does not pertain to the call details generated from MO72 mobile handset. Before delving into this aspect, it is to be borne in mind that the instant case is not one in which the prosecution relies entirely on the call details of the mobile phone of the 1 st accused to connect him with the crime. The prosecution relies on the evidence of PW1 and PW3 to bring out as to how the deceased was lured to go to Coimbatore by the 1 st accused. The call data details of the mobile phone of PW3 also contains the calls which originated from mobile phone bearing No.9442341448. The prosecution records would also reveal that after the deceased went missing, PW1 and PW3 got in touch and after discussion, PW3 had called the 1 st accused over phone on 7.1.2007. Exhibit P22 call details of mobile phone No.9895018739 supports this version of the prosecution. Several other calls were also made from the above number to the mobile phone bearing No.9442341448. It was after evaluating these circumstances that the learned Sessions Judge had concluded that the version of PW1 and PW3 with regard to their attempts to call the 1 st accused to enquire about the missing person is corroborated by the prosecution materials.

109. It is evident that MO72 was seized by Exhibit P40 mahazar. The fact that MO72 was seized on 9.1.2007 is borne out from Exhibit P49 remand report submitted before court on the next day. The details and model of the phone seized finds a place in Exhibit P40 and P49. Reliance and emphasis is placed by the prosecution on the SIM number and not the model number of the phone. In view of the above, the absence of mention of the I.M.E.I. number of the cell phone in the call details will not assume much relevance in the facts and circumstances of the instant case as the call details and the oral evidence of PW1 and PW3 sufficiently connects the 1st accused with the crime.

110. In so far as the certification under Section 65B of the Indian Evidence Act is concerned, the Apex Court in

# Anvar P.V. v. P.K. Basheer and Others, AIR 2015 SC 180

had occasion to overrule the judgment in Navjot Sandhu (supra) and it was held as follows in paragraph 22 of the judgment.

22.  The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under S.63 read with S.65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the Court omitted to take note of S.59 and S.65A dealing with the admissibility of electronic record. S.63 and S.65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by S.65A and S.65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under S.65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of S.65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

111. In Anvar P.V. (supra) the appellant had not produced any certificate in terms of Section 65B in respect of the compact discs which were produced before court. In the case on hand, the call details are accompanied by certificates and even otherwise, there are other clinching materials which connects the 1st accused with the offence.

112. The next contention of the learned counsel appearing for the 1 st accused is that the prosecution has withheld vital materials relating to the call details which would have unravelled a different version of the incident. We are unable to agree with the said contention. As a matter of fact, Exhibit P31 call details of mobile phone No.9442341448, which is allegedly used by the accused reveals that there were constant communication between the deceased as well as the 1 st accused. It is argued that the call details of an extended period ought to have been produced by the prosecution to portray a clear picture of what had transpired in the case on hand. We are afraid that no such inference is possible in the instant case. The whole transaction had occurred in a span of a few days and the contention is clearly farfetched.

113. In order to bring out that PW3 is not a truthful witness, the counsel appearing for the 1 st accused has invited our attention to Exhibit P22 call details of mobile phone bearing No.9895018739, which is said to have been used by PW3. He also refers to Exhibit P37 call details of reliance mobile phone No.9349846706 used by the deceased to highlight a technical flaw which has emanated from the evidence of these witnesses. By highlighting this flaw, the attempt of the learned counsel is to convince this Court that PW1 and PW3 have deposed falsehood with regard to the most important aspect in the prosecution case, which is with regard to a call said to have been made by the deceased using the mobile phone of PW3 to the accused. The prosecution has got a case that while the deceased and PW3 were together at Cherpu bus stop, a call was made by the deceased using the mobile phone of PW3 to contact the 1 st accused. In order to convince us that PW3 could not have been present with the deceased, the learned counsel relies on Exhibit P37 call details of reliance mobile phone bearing No.9349846706 of the deceased. The said call details shows incoming calls and outgoing calls separately. It also reveals that the deceased had received two incoming calls allegedly from the phone of the accused bearing No.9442341448 on 6.1.2007 at 12.11.05 hours and 12.56.37 hours. It is pointed out that at 12.56.37 hours, the tower position of the reliance mobile number of the deceased was Adam Bazar and therefore, according to the learned counsel it cannot be said that the deceased was at Cherpu bus stop along with PW3 at the time when the call had originated from the mobile phone of PW3 to the mobile phone of the 1 st accused. Expatiating further , it is submitted that there are several other tower locations between Adam Bazar and Cherpu and by no stretch of imagination can it be contended that the deceased and PW3 had reached Adam Bazar within a span of 20 seconds. In other words, according to the learned counsel, the whole prosecution case would be rendered suspect by this fatal flaw.

114. The learned Sessions Judge had repelled the said contention on the ground that fixing of the location of the caller on the basis of tower location can never be accurate as a particular mobile phone may catch the signal from a different mobile tower depending on the signal strength.

115. We have considered the submissions and we also were provided with a scientific details by the learned Public Prosecutor to repel the argument of the learned counsel. Basing on the mere fact that the cell phone is connected to a particular tower may not always give the exact location of a caller. The cell phone tower location can be useful only in putting someone in a specific wide area or in detailing a person who is travelling over long distances as they repeatedly switch towers in a particular direction. A single reading in the call details cannot give exact location details of the caller. In modern times, cell phone triangulation method are used to track the phone’s location by measuring the time delay that a signal takes to return back to the towers from the phone. In order to locate a person’s exact location, the information from a single tower has to be combined with the information from other towers as well. It is only when two sector antennas detect a phone that it can be said that the phone was in the area where their sectors overlap. In the same manner, when three antennas come into play, it can be said that the phone is in the mutually overlapping area. It is also to be borne in mind that the area covered by a tower is frequently large and by the mere fact that the location was given differently in the call detail cannot be a sufficient reason to reject the evidence of PW3 and consequently PW1. We are unable to agree with the contention of the learned counsel for the 1 st accused that the entry in the call details with regard to the tower position would shatter the evidence of PW3 and PW1. We agree with the conclusion arrived at by the learned Sessions Judge that the evidence of PW3 and the call details probabilize in no small measure the prosecution case, that the deceased and PW3 were travelling together.

116. Going back to the evidence of PW1 and PW3, the challenge raised by the learned counsel for the 1 st accused are on various grounds. It is pointed out that the deceased had left the house on 6.1.2007 but the law was set in motion only on 8.1.2007 by filing Exhibit P1 complaint before PW23. It is pointed out that though Exhibit P1 is dated 8.1.2007, the same reaches court only on 10.1.2007. The assertion made with much vehemence is that Exhibit P1 is ante-timed. Referring to the judgment of the Apex Court in

# Meharaj Singh ( L/Nk) v. State of U.P. and Others, (1994) 5 SCC 188

it is pointed out that the FIR in a criminal case is an extremely vital piece of evidence and the unexplained delay will prove fatal to the prosecution. Reference is also made to Exhibit D2 copy of FIR in a crime registered in the same police station on 8.1.2007 to advance his contention that the FIR in that case had reached the court on the same day itself. We have anxiously considered the contentions and we note from the records that Exhibit D2 was detected at 1.15 a.m. and registered at 2.00 a.m. on 8.1.2007 unlike Exhibit P36 FIR which was registered at 5.00 p.m. It has to be borne in mind that immediately after obtaining information from the accused on 9.1.2007 the investigating officer along with the police personnel had left to Sathyamangalam to search for the dead body and in view of the above, the delay if any caused in the FIR reaching court is clearly explainable. It is also to be borne in mind that Exhibit P36 crime was registered under the head “man missing” and not under the relevant provisions of the Indian Penal Code. In the facts and circumstances of the instant case, it cannot be said that the delay occasioned is fatal and is sufficient to throw seeds of suspicion on the very genesis of the prosecution case.

117. The learned counsel also extensively argued on the lack of intricate details of various facts in Exhibit P1 complaint. It is pointed out that the material fact relating to the procuring of gold from PW2 by the deceased are missing. PW1 to PW3 have given a cogent and convincing explanation as to the facts leading to the filing of Exhibit P1 complaint before the police. It is obvious from the evidence of PW1 and PW3 that they had implicit faith in the 1 st accused and was under the impression that the deceased was safe till they decided to file Exhibit P1 complaint on 8.1.2007. They had contacted the 1 st accused and also his brother on several occasions to ascertain the well being of the deceased. It is also borne out from the evidence that sufficient explanation was offered by the witnesses delaying the lodging of Exhibit P1. We are of the view that the evidence of PW1 and PW3 has a ring of truth and the mere fact that some details are missing in Exhibit P1 is not a sufficient enough reason to disbelieve the said witnesses.

118. Another contention raised by the learned counsel appearing for the 1 st accused is that the statement of the deceased to PW1 prior to his departure from the house that he was going with A1 to Coimbatore will not attract section 32(1) of the Indian Evidence Act. According to the learned counsel, the records produced by the prosecution would reveal that the last person with whom the deceased had talked was CW28 Shanil. Reference is made to Exhibit P37 call details to contend that the last phone call recorded is at 4.42.32 p.m. made by the deceased to 9447351009 belonging to CW28 Shanil and the said witness was not examined. It is the submission of the learned counsel that the words spoken to by the deceased to Shanil would have been the circumstance of the transaction which resulted in his death and thus admissible under section 32 of the Indian Evidence Act. We have considered the submissions and we feel that the same is without any basis. The mere fact that a telephone call was made by CW28 to the deceased while he was on his way to Coimbatore is no reason to assume that the circumstances of the transaction resulting in his death would have been disclosed by the deceased to the said witness. In the case on hand, PW1 the wife of the deceased emphatically states about the conversation which she had with the deceased immediately before his departure. The deceased had stated that he was going with the accused No.1 to Coimbatore. He also shares the fact that the 1 st accused wanted him to keep this fact discreet. This conversations over heard by PW3 a close relative and friend who was with the deceased during the early part of the day. The deceased and PW3 went to the shop of the deceased and took the balance gold ornaments and took 1080 Gms of gold with him and entrusted the balance gold with CW13. The deceased also informed PW3 about his trip to Coimbatore. This aspect of the matter is corroborated by PW5 who works in the shop of the deceased. PW5 has given evidence that he had seen the deceased alive at 2.30 p.m. on 6.1.2007 and he has also spoken about the acts done by the deceased. In view of the above overwhelming evidence, we find no force in the contention of the learned counsel that nonexamination of CW28 would prove fatal. We have been taken through the evidence of PW23 who has deposed that CW28 was also questioned by him and it was found that he had no role to play in the transaction. The evidence of PWs 1, 3 and 5 are convincing and we do not find any reason to doubt the same for the grounds advanced by the learned counsel.

119. The learned counsel has profusely relied on the judgment of the Apex Court in

# Sharad Birdhichand Sarda v. State of Maharasthra, 1984 SCC (Cri) 487

to contend that the prosecution has failed to prove beyond reasonable doubt the circumstances of the transaction which resulted in the death of the deceased. It is submitted that the delay in lodging the FIR would dilute the sanctity of the statement and all value and authenticity will be lost due to the fact that the complaint was lodged after deliberations, discussions and consultations. It is also submitted that PW1 and PW3 being interested witnesses would naturally have a tendency to exaggerate and add facts which may not have been stated to them by the deceased. All these contentions are raised to convince us that the statement allegedly made by the deceased to his wife prior to his departure from the house does not fall under section 32 of the Indian Evidence Act and that it would not be a circumstance of the transaction which resulted in his death.The learned counsel would go the extent of submitting that the possibility of the deceased lying to his wife could also not be ruled out. We find no merit in the submission of the learned counsel.

120. As held in Sharad ( Supra) Clause (1) of S.32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead are themselves relevant facts, when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death. In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death. Where death is a logical culmination of a continuous process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased. It cannot be said that the statements made by the deceased to PW1, PW3 and PW5 do not bear any proximity with the death of the deceased. We agree with the view of the learned Sessions Judge that the statement clearly connects the 1 st accused with the circumstance of the transaction which resulted in his death and the said statement as such is clearly admissible under section 32(1) of the Indian Evidence Act.

121. The learned counsel appearing for the 1 st accused had kept aside the whole ammunition at his command to attack the medical evidence in the instant case. It is his contention that the prosecution had failed to prove that the 1 st accused had procured cyanide poison from PW7 and that the deceased had died due to the continuous effect of smothering and also the blunt injuries sustained to the head and the poisoning by cyanide.

122. Profuse reliance was placed on the judgment of the Apex Court in

# Mohan v. State of U.P., AIR 1960 SC 659

and

# Ramgopal v. State of Maharashtra, AIR 1972 SC 656

to contend that the prosecution had failed to prove its case that the deceased had died of poisoning. We have gone through the evidence of PW7 who had deposed that based on the request of the 1 st accused some cyanide was handed over to him. Much argument was advanced to bring out that the evidence of the said witness did not have the ring of truth. It is also argued that the evidence tendered by him is not credible. Failure to seize the remnants of the cyanide from the shop of PW7 was also highlighted as a major flaw. We are not impressed by the contention of the learned counsel that nonproduction of the licence and the failure to seize the remnants of the gold are sufficient enough reason to eschew the evidence of PW7.

123. The evidence of PW17, the Doctor who conducted the post-mortem is also vehemently attacked by the learned counsel. It is pointed out that the characteristic symptoms of cyanide poisoning was absent. We have extensively extracted the evidence of PW17 earlier. We find no reason to disbelieve the evidence of PW17 that the congestion of inner aspect of lips, congestion of mucosa and oesophagus and intense congestion of mucosa of stomach and the unusual smell of contents of the stomach were suggestive of poisoning. The argument that the failure to recover the under garments for the purpose of subjecting the same to chemical analysis and the failure to take samples of the spleen and brain are fatal cannot be accepted. We are also unable to accept the contention that the presence of cyanide in the tissues of the body was due to post-mortem production of cyanide in a natural process. The learned counsel would also contend that there were no signs of attempted smothering in the dead body. This contention is countered by PW17 who testified that injury No.5 to 7 are suggestive of smothering. It is asserted by PW17 that if smothering is attempted after administering cyanide, it would only be met with feeble resistance. Referring to various authoritative books on Medical Jurisprudence, it is contended that no reliance could be placed on the evidence of PW17. Finally, it is submitted that the dead body was transported from near the Nasiri bridge to the check post by placing it on the floor of the jeep between the two seats on the backside and the injuries found on the body were sustained postmortem. We have meticulously gone through the evidence of PW17 and Exhibit P17 post-mortem certificate. We have also gone through Exhibit P28 report of Chemical analysis. Exhibit P28 reveals in unmistakeable terms that item Nos.1, 2 and 3 contain traces of hydrocyanic acid. The evidence also reveals that the deceased was smothered. As rightly held by the learned Sessions Judge, the evidence of PW17 could not be shaken in spite of searching cross-examination. We do not find any reason to doubt the medical evidence. We are of the view that the prosecution has succeeded in proving that the deceased had died due to the combined effects of smothering and also the blunt injury sustained to the head. The poisoning by cyanide could also have contributed to the cause of death.

124. The most important circumstance projected by the prosecution is the discovery of the dead body and the stolen gold ornaments consequent to the information furnished by the 1 st accused. The prosecution relies on the evidence of PW23 before whom Exhibit P43 statement was given by the 1 st accused leading to the discovery of the dead body. As led by the accused No.1, PW23 and the subordinates reached the Nasiri bridge in the Sathyamangalam-Mysore National Highway at 4.20 p.m. on 9.1.2007 and the dead body of the deceased was pointed out by the accused. Exhibit P42 body mahazar and Exhibit P44 inquest report was prepared by PW23. MO2 pants found near the dead body was also seized. Manifold contentions were advanced by the learned counsel to persuade us to disbelieve the evidence. In so far as the recovery of dead body is concerned, it is pointed out that in the relevant portion of confession, both in Exhibit P42 and Exhibit P43, there are identical interpolations as regards the authorship of concealment. It is argued that this would indicate that Exhibit P42 and Exhibit P43 were prepared subsequently as an afterthought to fill up the lacuna. It is also pointed out that Exhibit P43 confession which is dated 9.1.2007 reaches court only on 19.1.2007. The undue delay in the record reaching court is projected as yet another reason to doubt the prosecution version. Referring to the judgment of the Apex Court in

# Jaharlal Das v. State of Orissa, AIR 1991 SC 1388

it is contended that the failure to mention about the recovery of the dead body at the instance of the accused in the inquest report is fatal.

125. Exhibit P42 body mahazar was prepared on 9.1.2007 and it has reached the court on 11.1.2007. It is true that the said report was not despatched simultaneously with Exhibit P49 remand report. However, the same has reached the court without undue delay. There is no merit in the submission that Exhibits P42 and P43 were fabricated to suit the prosecution case. We are not prepared to accept the contention of the learned counsel that conscious effort was made by PW23 to create evidence by fabricating documents. In fact, a Full Bench of this Court in

# Ajayan Alias Baby v. State of Kerala, 2011 (1) KHC 1

have held that the authorship of concealment is not the sine qua non to make information received from a person accused of an offence while in the custody of the police officer, admissible under section 27 of the Act. The body was found in the middle of the forest by the side of a deserted highway and it cannot be said that the body was lying in a place accessible to all. We also do not find any merit in the submission of the learned counsel that the evidence as to recovery of MO3 shirt is to be rejected for the reason that Exhibit P2(a), the relevant portion of the disclosure statement reached the court only on 11.1.2007.

126. The most important circumstance which connects the accused with the gruesome crime is the recovery of MO5 to MO66 gold ornaments on 10.1.2007 at 1.30 a.m. from the compound of the 1 st accused by Exhibit P3 mahazar. The evidence of PW23 would reveal that on the basis of the statement furnished by the 1 st accused and as led by him he went to the house of the 1 st accused and as pointed out by him MO5 to MO66 gold ornaments were dug out from underneath the ground from near to one of the pillars of the firewood shed situated at the backside of the house of 1 st accused. Exhibit P3 mahazar was prepared evidencing the seizure. PW4 had gone along with the Circle Inspector and the policeman who accompanied him. The accused were also with him. The gold ornaments which were seized from the property of the accused were identified by the witnesses including PW2, who is the manufacturer of the gold ornaments. It was specifically deposed by him that the gold ornaments contained markings as A/S 916 KDM. It has come out from the evidence of PW4 that when they reached the house of the 1 st accused, the family members of the 1 st accused were present. He also deposed that there were several houses near to the house of the 1 st accused. We find no reason to disbelieve the evidence of PW4. The main contention of the learned counsel is that evidencing the seizure, no respectable person from the locality were called upon by PW23. Obviously, the police had reached the house at 1.30 a.m. and we do not find any difficulty in believing the version of PW23 that none of the neighbours had come forward to stand as attestors to the mahazar. The learned counsel has a contention that PW2 is a person who has an axe to grind against the 1 st accused and an attempt was also made to portray PW2 as the person responsible for manipulating the whole case. The learned counsel has went on to the extent of contending that the gold ornaments were handed over to the police by PW2 for stage managing a recovery at the instance of the 1 st accused. It is also contended that PW2 had a relationship with a girl by name Kavitha and the 1 st accused who was an employee of PW2 had divulged the details of this relationship to the brother-in-law of PW2. We find it very difficult to believe this version of the 1 st accused. We are of the view that the recovery effected at the instance of the 1 st accused based on Exhibit P3(a) confessional statement is eminently reliable and the court below was justified in placing reliance on the same.

127. Another important circumstance which connects the 1 st accused with the crime is the recovery of the gold chain belonging to the deceased at the instance of the 1 st accused from the coffer from the Bannari Amman Kovil in Tamil Nadu. It is based on Exhibit P5(a) information furnished by the 1 st accused that he was taken to the Bannari Amman Kovil on 17.1.2007 at 10 a.m. The prosecution relies on the evidence of PW1, PW5, PW6 and PW23 to establish the above fact. The 1 st accused is alleged to have pointed out Hundial No.9 which was found in a locked and sealed condition. A request was given by PW23 seeking permission to open the Hundial as PW6 refused to open the same without the consent of the Commissioner of the temple. Thereafter, on getting information from PW6, PW23 along with the accused went to the Bannari Amman Kovil on 19.1.2007 at 9 a.m. and the Hundial was opened in the presence of the accused and PW6. MO1 chain was found among the contents which was identified by PW5. Immediately thereafter, a request letter was issued by PW23 to PW6 calling upon her to produce MO1 on receipt of requisition from court. Exhibit P5 mahazar was also prepared in respect of MO1. It was thereafter that PW23 had applied before the court below seeking production of MO1. On its basis, PW6 has produced MO1 before court on 3.2.2007. On the same day, PW1 identified the ornament as one belonging to her husband. The learned counsel appearing for the 1 st accused would contend that the recovery cannot be believed. It is pointed out that Exhibit P5 is dated 19.1.2007 and no records have been produced before court to bring out the fact that the accused had pointed out the coffer on 17.1.2007. Reference is also made to the evidence of PW5 Viswas to contend that the recovery was brought into existence to connect the accused with the crime. Failure of the prosecution to produce any contemporaneous records prepared on 17.1.2007 is also raised as a contention to disbelieve Exhibit P5 and Exhibit P5(a). We have evaluated the evidence of PW6, the Deputy Commissioner of Bannari Amman Kovil and the evidence of PW23 to ascertain the sanctity of the recovery of MO1. The evidence of PW6 would reveal that the Hundial was opened on 19.1.2007 at 9.30 a.m. in her presence and she has also noted the presence of the 1 st accused. She has given the details of the ornaments and cash found inside the Hundial. She has specifically identified MO1 gold chain as well which was found inside the coffer. She had also stated that she was powerless to handover the gold ornament to the police without obtaining consent of the Commissioner. It was after receiving summons from the court that she had produced MO1 before the learned Magistrate on 3.2.2007 along with Exhibit P11 covering letter. The evidence of PW6 also reveals that the Hundial was earlier opened on 13.2.2006. The main contention is with regard to the date. We find it difficult to disbelieve the evidence of PW6 on the sole ground that PW5 Viswas did not speak about the fact that the 1 st accused was taken to the Bannari Amman Kovil on 17.1.2007. Much emphasis cannot also be given to the omission of the investigating officer to produce the letter said to have been given by PW23 to the Bannari Amman Kovil authorities on 17.1.2007. Though it would have been ideal for the prosecution to produce records evidencing the fact that the accused was taken to the temple on 17.1.2007 and that he had pointed out the coffer in the presence of PW6 and others on that day, we are unable to disbelieve the prosecution case solely on that ground. The evidence of PW6 and Exhibit P5 which has been proved by the prosecution was believed by the learned Sessions Judge to hold that the Hundial was opened on 19.1.2007 at 9.30 a.m. and that MO1 gold chain was recovered at the instance of the 1 st accused. We are of the view that the submissions of the learned counsel appearing for the 1 st accused touching the authenticity of the recovery of MO1 is without merits.

128. The learned counsel would also submit that discoveries made in the presence of interested witnesses renders the same doubtful and the resultant benefit should be extended to the accused. Pointing out that none of the recoveries effected were in the presence of independent witnesses, it is pointed out that the prosecution has indulged in fabrication of records and stage managing the recovery. Reliance is also placed on the judgments reported in

# State of Haryana v. Ram Singh, 2002 CriLJ 987

# State of U.P. v. Arun Kumar Gupta, 2003 CriLJ 894

and

# Sahib Singh v. State of Punjab, (1996) 11 SCC 685

to buttress his contentions. Referring to the judgment of the Apex Court in

# Mani v. State of Tamil Nadu, AIR 2008 SC 1021

it is submitted that discovery is by itself a weak piece of evidence and cannot be wholly relied upon and conviction placed in such a serious matter based on recovery alone. Though we agree with the ratio in the precedents cited by the learned counsel, we are of the view that in the instant case, there are ample circumstances in evidence pointing unmistakeably to the involvement of the 1 st accused. Though there is no hard and fast rule that the possession by an accused of the articles which were found in the custody of a murdered man will lead to the inference that he took part in the murder or that he was a party to it, that coupled with other strong circumstances will certainly point to the involvement of the accused. In the instant case, the body of the deceased was traced out and recovered based on the information furnished by the accused. The clothes worn by the deceased were also recovered at his instance on the basis of the disclosure statement. Precious ornaments which were in the custody of the deceased were recovered at the instance of the accused No.1 and that too from the premises of his own house. The gold chain which was worn by the deceased when he had left the house was also recovered at the instance of the 1 st accused. After meticulously analysing the evidence let in, we find no reason to disbelieve Exhibits P43, P2(a), P3(a) and P5(a) and we hold that they are clearly admissible in evidence under section 27 of the Indian Evidence Act as against the 1st accused.

129. In

# Mohanlal v. Ajit Singh, AIR 1978 SC 1183

the Apex Court had occasion to hold that the recovery of incriminating articles in pursuance to the information furnished by the accused is an important piece of evidence against him. Referring to various decisions it was held that the question whether presumption should be drawn against the respondent under illustration (a) of S.114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. The nature of the recovered articles, the manner of their acquisition by the owner, the nature of the evidence about their identification, the manner in which the articles were dealt with by the accused, the place and the circumstances of their recovery, the length of the intervening period and the ability or otherwise of the accused to explain the recovery, are some of those circumstances. It was held that these facts were not only proof of robbery but were presumptive evidence of the charge of murder as well. Reliance was placed on the decisions in

# Wasim Khan v. The State of Uttar Pradesh (AIR 1956 SC 400

# Tulsiram Kanu v. The State AIR 1954 SC 1

# Sunderlal v. The State of Madhya Pradesh [AIR 1954 SC 28

# Alisher v. State of Uttar Pradesh [1974 (4) SCC 254 : (AIR 1974 SC 1830)]

and Baiju alias Bharosa v. State of Madhya Pradesh (supra).

130. In

# Mukund Alias Kundu Mishra v. State of M.P., reported in 1997 SCC (Cri) 799 : 1997 Cri LJ 3182

in paragraph 9, it has been observed as follows :

“9 ……… If in a given case – as the present one – the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a Court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. In drawing the above conclusion we have drawn sustenance from the judgment of this Court in

# Gulab Chand v. State of M.P., 1995 (3) SCC 574 : AIR 1995 SC 1598

131.In so far as the 1 st accused is concerned, we are of the view that the prosecution has been able to establish its case beyond the shadow of reasonable doubt.

132. In so far as the 2 nd accused is concerned, we are not very much impressed with the evidence that has been marshaled by the prosecution to persuade the Sessions Court that an active role was played by him along with the 1 st accused to do away with deceased Shinde. The evidence of PW10 would reveal that his Car was borrowed by the accused No.2 to take his employer to the hospital. It has come out in evidence that Fuel was filled in the said Car and the said Car had crossed the check post. As to what transpired thereafter is anybody’s guess in so far as the 2 nd accused is concerned. We have strong reservations in the evidence as regards recovery of MO4 foot wear at the instance of the 2 nd accused. The said recovery was affected on 20.1.2007 from the premises of the house of the 2 nd accused. It has come out in evidence that the 2 nd accused was arrested on 9.1.2007 and he was taken to Satyamangalam along with the 1 st accused. It has also come out from evidence that the seizure of Gold and the car was affected immediately. The seizure of MO1 was delayed because of the fact that it was put in the Hundial. As contended by the learned counsel appearing for the 2 nd accused, the Investigating Officer had ample opportunity to effect the recovery as he had passed by the house of the 2 nd accused on numerous occasions after registering the crime. We find it difficult to believe that the 2 nd accused would bring MO4 foot wear all the way from Sathyamangalam and conceal the same within the premises of his house to enable the investigating officer to effect a recovery on 20.1.2007. The learned Public Prosecutor would submit that without the assistance of the 2 nd accused, the 1 st accused could not have committed the gruesome crime. It is true that the call details would reveal that there were calls made between the accused No.1 and 2 prior to the incident. The prosecution has also adduced evidence that based on the information furnished by the 2 nd accused as P18(a) and as led by him the bill book from the fuel station was recovered. However we are of the view that the evidence connecting the 2 nd accused is very feeble and we would not be justified in holding him guilty in a case of instant nature where the evidence is circumstantial in nature.

133. As held by the Apex Court, in a case resting on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. 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 in all probability, the act must have been done by the accused. These five golden principles constitute the Panchaseel of the proof of a case based on circumstantial evidence. (See

# Sharad Birdichand Sarda v. State of Maharastra, (1984) 4 SCC 116

While the accused is entitled to the benefit of doubt, the doubt that arises should be a reasonable one. A reasonable doubt is a doubt which is entertained by a reasonable man. Fleeting imaginations amounting to hunches cannot pass the muster of reasonable doubt. That must arise from the evidence adduced in the case. We have genuine doubts with regard to the actual complicity of the 2 nd accused in committing the crime at the instance of the 1st accused.

134. After judging the facts of the case on hand, on the basis of the settled principles, we are of the view that the learned Sessions Judge was justified in holding the accused No.1 guilty of the offence as the prosecution has succeeded in establishing all the circumstances as against him. We do not find any reason to interfere with the findings of the learned Sessions Judge in that regard. In so far as the 2 nd accused is concerned, who is the appellant in Criminal Appeal No.2083 of 2009, we are not satisfied with the evidence let in.

For the above reasons, the Crl.Appeal No.2083 of 2009 is allowed. The conviction and sentence passed against the 2 nd accused/appellant under section 302, 397, 201 read with section 34 of the IPC is set aside. He stands acquitted of all charges. The 2 nd accused/appellant shall be released forthwith unless wanted in any other case.

We confirm the conviction and sentence passed against the 1 st accused/appellant in Crl.Appeal No.1811 of 2009 and dismiss the appeal as one without merits. The appellant/accused No.1 shall be entitled to set off as provided under section 428 of the Code of Criminal Procedure for the period he has been in custody in this case, subject to the orders passed by the authority under section 432/433 of the Code of Criminal Procedure.

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