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