Whether Recovery of Articles belonging to Deceased can be Treated as Proof of Committing Crime [JUDGMENT]

The Indian Penal Code, 1860 - Sections 302, 364, 328, 394 and 201 - Murder - Recovery of the Ornaments - The only evidence that has been projected by the prosecution against the accused is the recovery of the ornaments which purportedly belongs to the deceased. The recovery of the articles belonging to the deceased may in some instances be treated as proof of committing the crime, but, in cases where there is doubt as to whether the ornaments actually belonged to the deceased, it will be difficult to take such a view as well.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE SHIRCY V.

MONDAY ,THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941

CRL.A.No. 134 of 2014

AGAINST THE JUDGMENT IN SC 565/2006 of ADDITIONAL SESSIONS COURT -IV, THRISSUR DATED 29-01-2014 AGAINST THE ORDER/JUDGMENT IN CP 69/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, CHALAKUDY

APPELLANT / 1 s t ACCUSED:

JILEESH

BY ADV. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN

RESPONDENT / COMPLAINANT:

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

SPL.PP-SMT.S.AMBIKA DEVI FOR ATTROCITIES AGAINST WOMEN AND CHILDREN

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.02.2019, THE COURT ON 1.04.2019 DELIVERED THE FOLLOWING:

J U D G M E N T

Shaffique, J.

This appeal has been preferred by the appellant challenging the judgment of conviction and order of sentence passed by the 4th Additional Sessions Judge, Thrissur in S.C. No. 565 of 2006 dated 29/01/2014 by which the appellant who is the 1st accused was found guilty for offences under Sections 302, 364, 328, 394 and 201 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo imprisonment for life and a fine of ₹10,000/- (Rupees Ten Thousand only) with a default stipulation of one year imprisonment for offence under Section 302 of IPC, and to undergo rigorous imprisonment for five years and a fine of ₹2,000/- (Rupees Two Thousand only) with default direction of two months under Section 364 of IPC, and also to undergo rigorous imprisonment for five years and a fine of ₹2,000/- (Rupees Two Thousand only) in default of which to undergo imprisonment for two months under Section 328 of IPC, and further sentenced to suffer rigorous imprisonment for seven years and a fine of ₹5,000/- (Rupees Five Thousand only) with a default stipulation of five months imprisonment for offence under Section 394 of IPC and again sentenced to undergo rigorous imprisonment of three years and a fine of ₹1,000/- (Rupees One Thousand only) in default of which to undergo imprisonment for one month for offence under Section 201 of IPC. The substantial sentences were directed to run concurrently. The 2nd accused Silvi @ Sindhu was acquitted of all charges.

2. The case of the prosecution is that 1st accused Jileesh (A1 who is the appellant herein) and 2nd accused Silvi @ Sindu (A2) were living together as man and wife in the rented house of PW8 at a place called Anandapuram. The children of A2 were with them. The deceased Santha was a prostitute. In furtherance of the common intention to kill the deceased and to rob her gold ornaments, appellant had met the deceased on 30/05/2003 at about 11.45 A.M. at the town in front of Paramekkavu Temple, Thrissur. Deceased was enticed to go with A1 on the pretext that an aged customer had offered good amount for her. She was requested to be present in front of the Thrissur Nursing Home. A1 reached the place in the autorickshaw KL 9B 7830 driven by him, and took her to the rented house of A1 at Anandapuram. A1 and A2 added sleeping pills in sarbath and uppuma and served it to the deceased. Sleeping pills were powdered using a hammer.

Deceased fell asleep. In the night at about 12.00 hours (31.05.2003 at 12.00 A.M.), A1 had put a pillow over her face and pressed it and smothered her. He sat on the pillow after putting it over her face when A2 pulled at her limbs. Deceased fell unconscious. Her gold chain, bangles and earrings were removed by the accused. Thereafter the deceased was taken in the autorickshaw along with the children of A2 and the appellant drove the vehicle upto the main gate of Government Security Press near Khanna Nagar at Koratty. A2 and children got out of the autorickshaw. The appellant further took the vehicle in which the victim was lying. On 31/05/2003 at about 04.00 A.M., the deceased was dragged out of the autorickshaw and dumped into the trench along side the NH in front of the bungalow of the Manager of the Government Press. Appellant could realize that the victim was not dead. He took the autorickshaw further and parked on the road side. He took out a plastic bottle containing petrol and came to the trench where the victim was lying unconscious. Then he poured petrol over the body of the victim and set fire with an intention to kill her and made her disfigured so that there would be no evidence as to the identity of the victim. A lighted match stick was used for setting her ablaze. Out of burns and due to inhaling of noxious smoke, she died.

3. Prosecution examined PW1 to PW33, marked Exts.P1 to P18(a) and marked MO1 to MO12. During examination under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code') the appellant denied all evidence tendered against him and pleaded innocence. In his written statement, the appellant submitted that he had no acquaintance with the deceased. The deceased was not taken to Anandapuram. A1 and A2 are not spouses. They did not reside together. They did not pledge any ornaments with PW5. PW5 does not run a shop. PW4 also does not run a shop named Chevidans. PW4 and PW5 are stooges of the police. The ornaments produced before Court did not belong to the victim. Deceased had no ornaments to the knowledge of the appellant. The accused had not resided together in the house of PW8. Ext.P10 agreement is not signed by the accused. They did not reside in the house of PW30 Mary. The appellant had not given any confession to the police. No articles were shown or produced by the accused. Material objects are fabricated. Articles allegedly seized are not produced before Court. No defence evidence was adduced in the case.

4. Evidence adduced in the case are as under: CW1 gave the First Information Statement to the police on 01/06/2003 at 03.30 P.M. who could not be examined in Court as his whereabouts were not able to be traced. FIS is marked as Ext.P24 through PW28 who recorded the same. Ext.P24(a) is the FIR registered based on the said FIS. PW28 conducted the inquest on the same day evening and Ext.P16 is the report. With the help of Scientific Assistant, PW28 collected material objects from the place where the corpse was found.

5. PW1, PW2, PW3, PW7, PW9, PW10 and PW21 did not support the prosecution and they were declared hostile. PW1 to PW3 were examined to prove that the deceased and the appellant herein were last seen together. But they did not depose so. PW1 admitted that she had given to the Magistrate Ext.P1 statement under Section 164 of the Code. She met the deceased two to three days prior to her death. She deposed that she had seen the deceased lastly at 10.00 A.M. near Paramekkavu Temple. She also deposed that the deceased used to wear ornaments. She had seen her wearing chain around her neck and bangles. She deposed that the appellant was arrested from her house. Appellant was a fish vendor and they resided together for five to six years earlier. Presently, they were not so close. PW2 deposed that Ext.P3 is the 164 statement she had given to learned Magistrate. Last Friday, PW2 was stated to be with PW1 and the deceased. She had seen the deceased going towards the Chembukkavu temple. PW3 deposed that he was an autorickshaw driver during 2003. He was running auto near Paramekkavu temple. It is his version that the deceased used to be with PW1. Two days prior to the death, she was seen alive near Paramekkavu temple. Ext.P6 is the 164 statement given by PW3 to the Magistrate. PW3 stated that the deceased used to wear ornaments like chain and bangles. PW4 knows both first accused (A1) who is the appellant herein and the second accused (A2) who was acquitted. He is running a Gold loan business at Pudukkad in the name and style 'Chevidens.' On 31/05/2003, A1 and A2 came to Chevidens and pledged gold chain and received amount. After two days, A1 again came and sold the chain to PW4 stating that he need money for an emergency. He converted it into an ingot and is marked as MO1 which weighs about 4.5 sovereigns. PW5 is the owner of C.J. Jewellery, Pudukkad. He knows A1 and A2. According to him, on 31/05/2003, A1 had come to his shop and sold five bangles, a pair of ear rings and a finger ring for a total amount of ₹17,000/- MO2 series are the bangles, MO3 series are the ear rings and MO4 is the finger ring. PW6 is the owner of the autorickshaw bearing number KL 9B 7830 which was driven by the appellant during the relevant period. PW7 is the daughter of second accused. She stated that the appellant used to visit them. She turned hostile. PW8 identified A1 and A2 as the tenants in his house at Anandapuram. It is his version that they resided there during 2003 and they left the house locked on 01/06/2003. He deposed that empty strips of pills, white powder etc. were seized by the police from his house premises. PW9 is an autorickshaw driver who was examined to show that the deceased and the appellant moved together in the auto. But he turned hostile to the prosecution. PW10 stated that both accused were staying in the house of PW8. PW11 is the owner of the medical shop. He deposed that the appellant had come to his shop and purchased Remoten sleeping pills (20 numbers) by showing a prescription of Dr. Abraham Ashok. PW12 is a motor mechanic. He proved Ext.P10 agreement between him and the appellant for the purchase of Splendor bike bearing number KL 8 R 4388 for ₹30,000/- and A1 gave an advance of ₹10,000/- on 01/06/2003. PW13 is an attestor to the mahazar prepared at the time of seizing empty strips of the pills from the house of PW8 where A1 and A2 were allegedly staying. PW14 is an attestor to Ext.P12 mahazar for the seizure of MO1 ingot. PW15 is an attestor to Ext.P13 mahazar for the recovery of MO2 to MO4 ornaments belonging to the deceased. PW16 stated that he is an attestor to Ext.P16 scene mahazar. The place of occurrence is shown to be near Government Security Press, Koratty. PW17 is an attestor to Ext.P15 seizure mahazar of autorickshaw. PW18 and PW19 are attestors of Ext.P16 inquest report. PW20 is an attestor to Ext.P17 mahazar prepared for the recovery of MO5 hammer, MO6 mat and MO7 pillow based on the disclosure statement of the appellant. PW21 deposed that she knew the deceased and they used to meet in connection with their flesh trade. She stated that the deceased used to wear ornaments. PW22 is the Doctor at Primary Health Centre, Anandapuram. According to him, the appellant came to consult him and told him that he had some mental problem. He prescribed antidepressants and anti-anxiety drugs to the appellant. PW23 is the Assistant Professor and Deputy Police Surgeon, Medical College, Thrissur. He conducted the autopsy of the corpse on 04/06/2003 and issued Ext.P18 post-mortem certificate. According to him, the approximate time of death is 36 hours prior to post-mortem examination. He further stated that the ante-mortem injuries noted by him are sufficient to cause death. He reserved opinion as to cause of death pending FSL report. PW33 is the Doctor who issued Ext.P18(a) addendum which contain the final opinion as to cause of death. He deposed that the deceased died of burns. Kerosene was detected in scalp hairs. Carboxyhaemoglobin is detected in blood. There was no poisoning. PW24 is the Special Village Officer, Koratti-Kizhakkumuri Village who issued Ext.P19 scene plan. PW25 is the brother of the deceased. He identified the body of the deceased. He also identified MO2, MO3, MO4 and MO8 as the ornaments belonging to the deceased. It is his version that he had seen her wearing those ornaments when he had seen her last. PW26 is the daughter of the deceased. She identified MO2, MO3, MO4 and MO8 as the ornaments of her mother. PW27 is an attestor to Ext.P20 mahazar for the seizure of MO8 nosepin. MO8 was seized by Investigating Officer as it was produced by PW23. PW29 is the Judicial Magistrate who recorded the 164 statements of PW1 to PW3 and they were marked as Exts.P1, P3 and P6 respectively. PW30 is the owner of the house from where MO5 to MO7 articles were seized. PW31 is the C.I. of Police, Chalakkudy who conducted the investigation of the case. He started investigation on 02/06/2003, seized MO8 nosepin at 03.30 P.M. on 04/06/2003, arrested the appellant and the second accused for which Exts.P23 and P25 are the arrest memos and Exts.P23(a) and P25(a) are the intimation respectively. He prepared Ext.P11 scene mahazar on 07/06/2003 at 07.00 A.M. Through Ext.P17 mahazar, MO5 to MO7 were seized based on Ext.P17(a) disclosure statement of the appellant. As per Ext.P12 mahazar and based on Ext.P12(a) disclosure statement of the appellant, MO1 gold ingot was recovered. MO2 to MO4 gold ornaments were recovered based on Ext.P13(a) confession statement of the appellant as per Ext.P13 mahazar. PW27 is an attestor to it. Ext.P27 is the report revealing full name and address of the accused. Ext.P14 is the scene mahazar prepared on 08/06/2003. On 08/06/2003 at 10.00 A.M., through Ext.P15 seizure mahazar, autorickshaw bearing number KL 9B 7830 was seized from PW6. On the same day, motor cycle bearing Regn.No.KL 8 R 4388 was seized from the residence of PW1 through Ext.P21 mahazar. Ext.P10 is the sale agreement of motor cycle produced by PW12 at 04.00 P.M on 26/06/2003. Ext.P28 is the list of property. Ext.P29 is the requisition for chemical analysis of articles in Ext.P28. Ext.P19 is the scene plan prepared by Village Officer, Koratty. Ext.P30 is the sketch prepared by Village Officer, Anandapuram.

6. Court below acquitted the 2nd accused in the case by stating that the only evidence available against the 2nd accused Silvi is that she had been with the appellant at the time when gold chain was pledged in the shop of PW4.

7. Admittedly, there is no direct evidence in the case. It is in evidence that a charred body of seemingly a female person was found by CW1 on 01/06/2003 and he informed the matter to Police and Ext.P24 is the FIS based on which Ext.P24(a) FIR was registered by PW28. Ext.P24(a) is dated 01/06/2003 at 03.30 P.M. Ext.P16 is the inquest report dated 01/06/2003 at 04.10 P.M. In both these documents, the identity of the deceased is described as unknown. PW23 conducted the autopsy on 04/06/2003 at 01.20 P.M. Ext.P18 is the certificate. It is seen that the deceased is described to be Santha in Ext.P18 where we see the identity of the victim for the first time in a document produced before this Court as the most contemporaneous. PW1 to PW3 and PW21 were cited by the prosecution to show that they had identified the corpse as that of Santha, in hospital. But they did not support the prosecution. PW25 is the brother of the deceased. He identified the charred body as that of his sister Santha primarily based on the presence of MO8 nose-pin. PW26 is the daughter of the deceased. She also stated that the deceased was her mother. During trial also, it can be seen that there was not much dispute as regard to the identity of the deceased. Of course, there is a serious lapse on the side of the investigating agency in confirming the identity of the deceased. Admittedly, the brother and daughter were available. Scientific methods like DNA profiling or super imposition methods could easily be resorted to for fixing the identity of the corpse. However, since the deceased was identified by her own brother and daughter and that there was not much dispute from the side of the defence as to the identity of the deceased throughout the trial stage, we agree with the finding of the trial Court that it is Santha who died in the incident.

8. PW23 deposed that he conducted the autopsy of the corpse on 04/06/2003 and issued Ext.P18 certificate. He deposed that the following ante-mortem injuries were noted by him on the dead body:- 

1. Dermo epidermal burns on the head, face, neck, upper limbs front of trunk upto the level of umbilicus, sides of trunk upto upper part of both thighs an back f buttocks. Epidermis was burned off from most o the areas and the retained skin was charred. The burned area were stiff and the dermis exposed was cherry red in colour.

2. Dermal burns back of trunk and outer aspect of lower part of both thighs, lower part of legs.” 

He reserved the opinion pending FSL report. PW33 gave the final opinion as to the cause of death in Ext.P18(a). According to PW33, the victim died of burns and inhalation of carbon monoxide. PW23 during his examination, ruled out the possibility of suicide in this case. According to him, the pattern of injury will not be similar in the case of suicide. He deposed that this was a case where the epidermis were burnt of most of the areas and retained skin was charred at the front and side of the body but only superficial burns were at the back. PW23 is of the opinion that the said circumstance indicate that the victim was kept with body facing upward position and subsequently burned pouring some inflammable materials. He further deposed that in cases where one had set himself/herself ablaze, the person would start to roll and struggle once the body starts burning and then the injury noted as no. 1 is quite unlikely. It is his version that the pattern of injury found on the corpse suggest that somebody else had burnt the body after incapacitating the victim by some means. Considering all the above aspects, we are of the view that the person died was one Santha and her death was homicidal.

9. Prosecution attempted to prove that the appellant has solicited the deceased and had taken her in his autorickshaw to the house in which the appellant and the 2nd accused were staying together. Thereafter, both the accused incapacitated the victim and robbed her ornaments and then she was taken away and burned by pouring petrol over her body by laying her in supine position and thereby caused robbery, murder and destruction of evidence.

10. Court below arrived at the following conclusions after trial: (i) The deceased is one person named Santha, the sister of PW25 and mother of PW26.

(ii) Death of Santha was a homicide.

(iii) Prosecution failed to prove the case against the 2nd accused that she had common intention to commit any of the offence as alleged.

(iv) The appellant had the possession of the gold ornaments of the deceased and he had appropriated the same for his gain on 31/05/2003.

(v) He purchased a bike spending money he obtained as sale proceeds of the ornaments of the deceased.

(vi) The appellant had gathered sleeping pills in some pretext and the same had been powdered from the rented house of PW8.

(vii) The incapacitated victim was laid in the trench and set on fire.

(viii) Both accused had shifted their residence to the rented house of PW30 on 01/06/2003.

(ix) The appellant had been using the autorickshaw in which he was employed as driver, for his personal use in the evening hours.

(x) The body of the deceased was found in the trench near the Govt. Press, Koratty.

11. We heard learned Senior counsel for the appellant and learned Government Pleader and perused the entire evidence.

12. Prosecution cited PW1 to PW3 and PW21 to show that the deceased was last seen alive by them near Paramekkavu temple. PW1 to PW3 were also expected to state that they had seen the appellant soliciting the deceased and taking her away in an autorickshaw. The above witnesses did not support the prosecution. All of them turned hostile.

13. PW7 is the daughter of the 2nd accused. She was cited by the prosecution to prove that the appellant herein lived together with the children of the 2nd accused and the deceased was brought home by the appellant in an autorickshaw. PW7 was only 7 years old at the time of incident. She also turned hostile to the prosecution.

14. PW9 is the autorickshaw driver who was cited to prove that he had seen the appellant and the deceased together. But he also turned hostile to the prosecution.

15. It can be seen that the viscera and blood analysis report did not reveal the presence of diazepam in the body of the deceased.

16. It is also seen that the appellant and the 2nd accused had shifted from the rented house of PW8 to that of PW30 on 01/06/2003. But prosecution is yet to prove what it signifies in the present case. Is it not normal practice in our midst to shift the house in the beginning of every month? 

17. Nothing is brought in evidence to show that the deceased was last seen together with the appellant. Absolutely nothing is there in evidence to show that the deceased was solicited and taken away by the appellant in his autorickshaw to their rented house owned by PW8. Nothing is there to prove that the deceased was given diazepam or any such drug so as to incapacitate her while allegedly she was in the said house. No piece of evidence is available to conclude that the deceased was taken by the appellant and the 2nd accused along with 2nd accused's children in the autorickshaw of the appellant to the place where the corpse was found. There is nothing to prove that the deceased was set on fire by the appellant as alleged by the prosecution.

18. As far as the recovery of the ornaments are concerned, there is nothing before this Court to conclude that the victim was wearing the set of ornaments recovered at the instance of the appellant based on his disclosure statement. PW1 to PW3 and PW21 stated that the deceased was in the habit of wearing ornaments. The deceased was in their company during the relevant period. They did not identify MO2 to MO5 as the ornaments of the deceased. The ornaments of the deceased were identified by PW25 and PW26. Both of them stated that they were not residing with Santha due to her wrong way of life. The identification made by such witnesses need to be scrutinized carefully. PW4 John stated that the appellant had come to his establishment with a gold chain on 31/05/2003 and pledged the same. Two days later, he again came and offered the chain for sale and the same was bought by PW4 and it was converted into an ingot. MO1 was about 4.5 sovereigns. PW5 deposed that the appellant had approached him on 31/05/2003 and pledged MO2 to MO4 gold ornaments. Even assuming that the ornaments are with him, Section 114(a) of the Indian Evidence Act, 1972 would only permit to presume utmost that the appellant would be a thief or that he is a receiver of stolen property. In the absence of any evidence showing the company of the appellant and the deceased together, any presumption beyond this is against the above provision of law.

19. PW22 in his evidence deposed that the appellant consulted him and complained of his mental issues. He examined him and prescribed some drugs to reduce anxiety and depression. Seizing two stripes of Remoten tablets from the house in which the appellants allegedly stayed is of not much relevance. It is in evidence that there was not even a trace of such drugs, when the viscera was examined. Traces of diazepam found on MO9 and MO5 is of not much relevance. The same circumstance also need to be discarded.

20. Statements taken down by the Magistrate under Section 164 of Cr.P.C is not a substantive piece of evidence. It can be used to corroborate the testimony of the maker under Section 157 of the Evidence Act or to contradict him under Section 145 of the said Act. Admittedly, PW1 to PW3 turned hostile to the prosecution. Then, in the absence of any substantive evidence, it is impermissible to rely on the said documents.

21. Ext.P10 sale agreement for the motor cycle shows that there was such an agreement between the parties mentioned therein. Ext.P10 would show nothing more than that.

22. The only evidence that has been projected by the prosecution against the accused is the recovery of the ornaments which purportedly belongs to the deceased. The recovery of the articles belonging to the deceased may in some instances be treated as proof of committing the crime, but, in cases where there is doubt as to whether the ornaments actually belonged to the deceased, it will be difficult to take such a view as well.

23. Based on the above discussion, we are of the view that the prosecution failed to prove the case they alleged against the appellant herein. Court below erred in convicting the appellant for the offences without giving him benefit of doubt. We are rectifying the same.

In the result, the appeal is allowed. Conviction and sentence passed against the appellant by the trial Court is hereby set aside. He is acquitted of all charges as benefit of doubt favours him. He shall be released forthwith, if his presence is not required in connection with any other case.