Dileep Kumar vs State Of Kerala

C.S. Sudha, J.

This jail appeal under Section 383 Cr.P.C has been filed by the accused in S.C.No.527/2015 on the file of the Court of Session, Thiruvananthapuram, challenging the conviction entered and sentence passed against him for the offences punishable under Sections 302, 307, 394, 397 and 449 IPC.

The prosecution case as stated in the charge sheet is that - PW2, Mohankumar, had returned from Gulf and settled at Pullayil, Kilimanoor. His wife Shylaja was a retired Deputy Tahsildar. They were residing in the house by the name 'M.S. Palace', bearing No.II/287, Pulimath Grama Panchayat. PW2 was conducting a money lending business at his residence in the name and style 'M.S. Finance'. They had no issues.

2.1. The accused, to make unlawful gain for himself and with the intention of murdering PW2 and Shylaja, on 09/10/2014 at 10.10 a.m. criminally trespassed into their residence under the pretext of pledging a pair of gold earrings. The accused handed over the earrings to PW2 sitting in his office room. While PW2 was weighing the earrings, the accused with a hammer (MO1), beat PW2 on his head and pushed the latter down. When PW2 who fell on the floor tried to get up, the accused with the hammer again beat him thrice on his head, causing grievous injuries. The accused realizing that Shylaja, standing in the bedroom situated on the south-western side of the house, had seen him and the assault on PW2, trespassed into the said room, beat her on the head with the hammer; pushed her down towards the southern wall of the room, beat her thrice on different parts of her head causing grievous injuries, resulting in her death. The accused had taken the precaution to put on socks on both his hands to prevent his fingerprints falling on any surface. The accused stole the gold chain and bangle worn by Shylaja; the gold chain and bracelet of PW2 in addition to 738 grams of gold ornaments kept in the house, which include Shylaja’s gold ornaments and the ornaments that had been pledged by the customers of PW2. The gold had been kept in an almirah inside the south-eastern bedroom of the house. The accused also took away an amount of ₹70,000/- kept inside the drawer of a table in the office room. The total value of the property stolen comes to ₹19 lakhs. The stolen goods were taken away in a bag in the possession of the accused. The accused left the scene wearing a shirt of PW2. The accused later burnt the shirt of PW2, the socks and the cards pinned to the various covers in which the pledged ornaments had been kept. The destruction of evidence was carried out in a property situated at Raloorkavu, which property is situated on the western side of the public road leading to the place by name Sheemavila. The property was densely vegetated and also had a cluster of cashew-nut trees. Hence the accused is alleged to have committed the offences punishable under Sections 201, 302, 307, 394, 397 and 449 IPC.

Based on Ext.P1 FIS of PW1, Crime no.1339/2014, Kilimanoor Police Station, that is, Ext.P19 FIR was registered by PW30, the then Sub Inspector, alleging the commission of the offences under the above-mentioned Sections. PWs.36 and 37 are the investigating officers. PW37, the then C.I., Kilimanoor, had completed the investigation and submitted the charge sheet before the court.

On the final report being submitted, the jurisdictional magistrate after complying with all the statutory formalities, committed the case against the accused to the Court of Session, Thiruvananthapuram, which court took the case on file as S.C.No.527/2015. On the appearance of the accused, he was furnished with copies of all the prosecution records. A charge for the offences punishable under Sections 449, 302, 394, 397, 307 and 201 IPC was framed, read over, and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 38 and got marked Exts.P1 to P65 and MO.1 to MO.293 series. After closing the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence and put forward a defense version to which we will refer shortly.

As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C, he was asked to enter on his defense and adduce evidence in support thereof. DW1 and DW2 were examined and Exts.D1 to D12 were marked on the side of the accused.

On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment convicted and sentenced the accused to undergo imprisonment for life and fine of ₹25,000/- and in default of payment of fine to undergo rigorous imprisonment for two years for the offence punishable under Section 302 IPC, to ten years rigorous imprisonment and fine of ₹25,000/- and in default to rigorous imprisonment for two years for the offence punishable under Section 394 IPC ; to rigorous imprisonment for five years and fine of ₹10,000/- and in default of payment of fine to rigorous imprisonment for six months for the offence punishable under Section 307 IPC and to undergo five years rigorous imprisonment and fine of ₹10,000/- and in default of payment of fine to rigorous imprisonment for six months for the offence punishable under Section 449 IPC. He has been acquitted for the offence punishable under Section 201 IPC. The accused has been held entitled to set off in case remission under Section 432 Cr.P.C. is granted.

The only point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against the accused by the trial court is sustainable or not.

Heard Sri.K.K. Rajeev, the learned counsel for the appellant and Sri.E.C.Bineesh, the learned Public Prosecutor.

To prove the death of Shylaja, the prosecution relies on the testimony of PW19, PW21, PW33 and Exts.P7, P10 and P22. PW33, Medical Officer, Gokulam Medical College Hospital, stated that on 09/10/2014 at 12.35 p.m. she had examined Shylaja, aged 54 years. Examination showed the head to be soaked in blood; deep injuries on the head; clotted blood in both ears, nostrils, and mouth. She noticed the following injuries -

“6x2 cm lacerated wound left frontal area.

2X2 cm lacerated wound left fronto temporal area.

4X2 cm lacerated wound left parietal area.

4X3 cm lacerated wound left occipital area.

5X3 cm lacerated wound right perieto occipital area.

Inverted v shaped lacerated wound 4x5x3 cms over the occiput.

3X2 cm lacerated wound over the occiput.

Point blood was transfused.

Patient was inquibated and ventilated.”

At 12.50 p.m., the patient was declared- ‘brought dead’. Exts.P22 and 23 are the wound certificates issued by her. In the cross examination, she deposed that she is not sure as to the time required for blood to clot. When she examined Shylaja, blood was dripping from the wounds. Shylaja’s body was cold at the time of examination. According to PW33, rigor mortis could have started to set in. However, she added that she is not sure as to how much time it would take for rigor mortis to set in.

PW21, deposed that while he was working as Assistant Professor, Forensic Medicine and Assistant Police Surgeon, Medical College Hospital, Thiruvananthapuram, on 10/10/2014 he had conducted postmortem examination on the body of Shylaja, which examination commenced at 11:20 a.m. and concluded at 12:20 p.m. On examination, he noted the following injuries -

“Injuries (Ante-Mortem)

Contusion 10 x 6 x 0.5 cm on the right side, front and top of head involving the scalp and front half of right temporalis muscle 5 cm above the eyebrow in midline, incorporating a lacerated wound 3.5x0.6×0.5 cm oblique on top of head with the front inner end 75 cm above root of nose in midline at its front inner extent. Skull showed fissured fracture 13 cm long, oblique on the right side of vault involving the fronto- tempero parietal bone.

Lacerated wound 5x1.5x 1.2 cm in the sagittal plane on the left side of head and forehead with the front end 3 cm above eyebrow 6.5 cm outer to midline.

Lacerated wound 3 x 0.5 x 0.9 cm horizontal on the left side of head, extending to the upper attachment of root of left ear, with the front end 6 cm below and 3 cm behind the front end of injury number (2). The pinna of left ear was avulsed from the root at its upper aspect. Contusion 3 x 1.5 cm was present on the lower margin of the wound extending to the back of pinna of the ear. Small crushed fragments of brain matter seen coming out through the wound.

Beneath the skull showed depressed comminuted fracture on the left side of frontal, parietal and temporal bones with maximum depression 1 cm at its front extent, with a fissured fracture 7 cm obliquely extending backwards in the parietal bone.

Lacerated wound 4x 0.4x0.5 cm oblique on back of head in the left side, upper inner end was 1.5 cm outer to midline 4 cm above occiput.

Contusion 18 x 9x0.5 cm on the left side of front, top and back aspect of head, with the front extent at supra orbital margin, 2 cm outer to midline.

Base of skull showed fracture fragmentation of roof of left orbital cavity ethmoidal plate, floor of pituitary and right-half of middle cranial fossae. Brain showed laceration 5 x 4.5 x 1 cm on outer aspect of left temperoparietal lobe Contusion (1) 9 x 4 x 1 cm on the under aspect of left frontal and temporal lobes (2) 5 x 3 x 0.5 cm on outer aspect of right temporal lobe and (3) 3x2.5x0.5 cm on the inter hemispheric area of left occipital lobe. Thick subdural haemorrhage was present on the fronto temperoparietal lobes of both sides. Diffuse subararachnoid haemorrhage present involving the entire surface. Ventricles also contained fluid blood. Signs of raised intracranial tension like flattening of gyri and narrowing of sulci present.

Graze abarasion 2.8 x 2 cm on the left side of back of chest 11 cm outer to midline 22 cm below top of shoulder Air passages were pale. Lungs were pale. Heart showed subendocardial haemorrhage. Liver was pale, fatty at places. Spleen was pale and shrunken. Kidneys were pale with distinct corticomedullary demarcation. Stomach contained a few ml of brownish mucoid fluid having no unusual smell, mucosa was normal. Uterus 7.5 x 4.5 x 1.5 cm showed a fibroid 1.5x 1 x 1 cm at the left horn. Its cavity was empty Ovaries were atrophic. Urinary bladder was empty. All other internal organs were pale otherwise appeared normal. Blood grouping was done at Blood Bank Medical College, Thiruvananthapuram and was found to be 'O' Rh positive.

Sample of blood and viscera were preserved and sent for chemical analysis.

Sample of scalp hair, pubic hair, and nail clippings from right and left hands were collected and handed over to the charge WCPO for onward transmission as per the request form the investigating officer.

OPINION AS TO CAUSE OF DEATH:

Death was due to blunt injuries sustained to head.”

The postmortem certificate is Ext.P10. PW21 stated that the injuries noted in Ext.P10 could have been caused by MO1 hammer. She also stated that injuries no.1 to 4 are fatal injuries. In the cross examination, she stated that the exact time of death cannot be ascertained in postmortem. Rigor mortis starts to disappear within 24 hours of the death. At the time of postmortem, rigor mortis had fully set in. It would take about 4 to 6 hours for the stomach to completely empty. At the time of his examination, the stomach was almost empty. PW19, stated that he was present at the Gokulam Medical College Hospital, where the inquest of Shylaja had been conducted and that he is an attestor to Ext.P7 inquest report.

The testimony of the aforesaid witnesses has not been discredited in any way. Hence, we can safely conclude that the death of Shylaja was in fact a case of homicide.

It was argued by the learned counsel for the accused that the evidence on record would at best establish that the accused had committed the offence punishable under Section 307 IPC. The remaining evidence on record is totally unsatisfactory to establish the guilt of the accused relating to the other offences alleged against him. He also referred to a series of circumstances, which according to him, would raise serious doubts regarding the prosecution story. We will deal with the circumstances pointed out and the answers given by the learned prosecutor to the same, while dealing with the rival contentions of the parties. The incident is alleged to have taken place on 09/10/2014 between 10.10 a.m. and 10:30 a.m. Ext.P1 FIS was given by PW1, the sister-in-law of the deceased, on the same day at 16.30 hours. Therefore, there is no delay in giving the FIS.

We will now examine the chain of events that took place on the said day which finally culminated in the murder of Shylaja. PW16 speaks of the events that happened at about 09:20 a.m. She deposed that she knows Shylaja from her childhood days. On 09/10/2014 at 9.20 a.m. she had gone to the house of Shylaja for pledging gold. The gate was open. Normally, the gate would be closed. She pledged her MO.5 gold ring and obtained ₹3,500/-. PW2 was attired in a lungi. He was also wearing a gold chain and bracelet. At that time, she did not see anybody else. She came to know about the incident in the afternoon. PW16 in the cross-examination stated that on the earlier occasions when she had gone to pledge gold, it was PW2 who had opened the gate for her. Normally she would wait in the sit-out. PW2 would then call out to her to enter the house.  (ഞ ൻ സ റ  ഔട ല ണ പണയ വ യ   ൻ ന നത  സ ധ രണPW2   ള    , കയറ  ര ൻ പറഞ . ഞ ൻ ഗ റ  കടന  വ ല ഗ" ൾPW2 ഇറങ  പ റഗ& ട   ര കയ യ ര ന.) On the said day she had seen Shylaja proceeding from the well towards the kitchen.

To prove the presence of the accused near the place of occurrence, the prosecution relies on the testimony of PW3 to PW5. PW3, an acquaintance of PW2 and the deceased, residing about 1 km. away from their residence deposed that on 09/10/2014 when he was standing at the bus stop near the barber shop of Gopi (PW4), a bus came from which two women and the accused alighted. As he is acquainted with the accused, he asked the latter as to where he was going, to which the accused replied that he was going to a shop at Thopil Mukku to get an agency in cattle feed. The accused was wearing MO.3 blue jeans and MO.4 ash colour shirt. The accused at that time was also in possession of MO2 black bag. PW3 proceeded to Kilimanoor in an auto-rickshaw and returned by 11.30 a.m. He came to know about the incident by 01.00 p.m. On his way to Kilimanoor and on return, when he passed through the road in front of the house of PW2, he noticed the gate of the house lying open. He did not see anybody there. According to PW3, the gate of the house is usually found closed. On earlier occasions also he had seen the gate left open. However, he has not seen both the gates lying open.

PW4 stated that he has been conducting a barber shop situated about 100 meters from the house of PW2 for the last 27 years and that his shop functions from 9.00 a.m. to 8.30 p.m. On 09/10/2014 while he was in his shop, Ani (PW3, Sunil Kumar, is described as Sunil Kumar @ Ani in the charge sheet,) came on his way to Kilimanoor. At 10.00 a.m. a bus arrived, from which two women and a man alighted. The man approached his shop and spoke to PW3. PW4 identified the said man as the accused in this case. The accused was wearing MO.4 ash colour shirt and MO.3 blue jeans and had MO.2 black bag on his shoulder. The accused said that he was on his way to take an order for cattle feed. PW4 came to know about the incident after 11.30 a.m. on the said day. He was informed by Jayan (PW6) that PW2 was lying in a pool of blood. He proceeded to the house and through a window saw PW2 lying injured. He did not see Shylaja.

PW5 was examined to prove that on the date of the incident she had seen the accused in the courtyard of the house of PW2. However, PW5 turned hostile and denied having stated so to the police. In the cross-examination PW5 stated that the gate of the house of PW2 is usually found closed.

The aforesaid evidence establishes that the accused did arrive in the vicinity of the scene of occurrence in the morning of 09/10/2014 by 10 a.m.

Now coming to the incident in which PW2 is alleged to have sustained injuries. PW2, when examined deposed that he had worked abroad for 23 years, and on his return, he started M.S. Finance, which was functioning in one of the rooms of his residence. The gold ornaments he receives on pledge are put in containers and kept in an almirah in his bedroom. On 09/10/2014 at 07.00 a.m. he returned from the market after buying fish. Sometime between 8.30 am and 9.00 a.m., Sudharmma (PW16) came for a loan. The gold ornament brought by PW16 was taken on pledge and then she left. Thereafter, while sitting in his office room, he saw the accused coming through the gate. He knows the accused as the latter had on 5 to 6 earlier occasions availed loans by pledging ornaments. On the previous day, the accused approached him and enquired whether an amount of ₹3,000/- more could be given for the gold already pledged by him. PW2 checked the gold ornaments and told the accused that the request could not be acceded to and that, if the latter needed more money, he would have to bring more gold ornaments. On 09/10/2014, the accused came into his office room and, standing behind his chair, handed over a pair of gold earrings. While he was weighing the same, the accused beat him on his head. He fell on the floor. When he looked back, he saw the accused trying to give him a second blow. He then saw that the accused had beaten him with a hammer. When he received the second blow to his head, he became unable to speak. A total of 750 grams of gold ornaments, that is, 400 grams belonging to him, and his wife and 350 grams pledged by his customers were there in the house. Currency between ₹70,000/- to ₹90,000/- was on the counter of the office room and ₹40,000/- in the room inside.

PW1 identified MO1 as the hammer used for the assault. He also identified the gold ornaments that had been seized by the police. In the cross-examination, he stated that he returned from the market in his car and put the fish in the wash basin. At that time his wife was bathing. The car key had been kept in the car itself. He does not usually lock the car door. As he is conducting a finance business, he generally leaves the gates and the front door open when he is home. When his wife is working in the kitchen, the door of the kitchen is also left open. His dog is locked in the kennel by 6.30 a.m. The last pledge he had taken on the day was from PW16, which was at 9.30 a.m. The gold ornament brought by Sudharma was put in a plastic container and kept inside the almirah of the bedroom situated on the southeastern side of his house. At that time there were already 2 to 3 plastic containers and a steel container containing gold ornaments. The gold and cash had been kept in the drawer on the right side of the almirah. When he is at home, he does not lock the bedroom or the almirah, and the keys are kept in the almirah itself. He saw his wife for the last time on his return from the market, at which time he saw her going into the bathroom. He admitted that while sitting in the office room, he would not be able to hear any noise from the bathroom. He said that he cannot say when his wife came out of the bathroom. They were at home on 08/10/2014. Shylaja had told him on the date of the incident as well as on the previous day that she had to go to the Collectorate. He does not know the reason/ purpose for which she wanted to go there. She had told him that she would be going to the Collectorate after 10.00 a.m. Occasionally, he has a drink. But he does not keep liquor in his house. He does not invite his friends home for a drink. He had last purchased liquor in the year 2008, after which he has not taken liquor. There was no bottle containing liquor or empty liquor bottle in his house during the said time. When they are at home, they have lunch at 1 p.m. Breakfast would be over by 9 a.m. On the date of the incident, he had his breakfast immediately on his return from the market. He served himself and cleared the dishes. From the time Shylaja went into the bathroom, till 10 a.m. he had not enquired about her. Normally Shylaja goes out after preparing food.

19.1. His gold as well as the gold of Shylaja had been kept in the same almirah, where the pledged ornaments had been kept. PW2 admitted that Exts.P33 to 37 cards are related to the gold ornaments pledged by the accused. He admitted that the accused had pledged ornaments from the year 2011. Some of the cards containing the details of the transaction pinned to the covers in which the ornaments were kept, showed ‘+2’ written on them. When PW2 was asked the meaning of the same, he answered that the said marking is given to people who repay the loan promptly/redeem the pledge at the earliest. He admitted that the gold pledged by the accused on 21/11/2011 bearing no.192 had not been redeemed by the accused till date. To a question whether item no.192 included a pair of earrings, PW2 initially denied it. But then he added that it includes an earring and a chain, the total weight of which is 2.4 grams. PW2 did not have an answer when he was asked whether the earrings pledged by the accused on 21/11/2011 as item no.192 is the earrings produced by the prosecution as the one brought by the accused on the date of the incident for pledging. (Ext.P33 മ തൽ Ext.P38  വരയ ള ക ർഡ കൾ പപത പണയ  വ ചത ണ .192 ന"റ യ  21 -11 -11 ൽ വ ച പണയ  പപത  എട & ട ല. അത ൽ ഒര  ഗ1 ഡ  കമൽ പണയ  വ ച ട ല. Adds ഉണ .വ യ ന   ഉണ .കമല വ5 ത6   2 .4 gm ആണ  എന  പറഞ ൽ ശര യല. വമ &  ത6 മ ണ  ഞ ൻ എഴ ത യ ര   നത.ആ  കമല ണ  പപത  ക:ത; ദ  സ  പണയ  വ യ   ൻ വക ണ   ന  എന ഗപര ൽ ഹ 1ര   യ ട ളത  എന  പറയ ന? (Q) No answer. See page no.20 of his deposition). He admitted that Ext. P33, P34, P35, P36, and P37 cards relate to the ornaments pledged by the accused on 21/07/2011; 19/12/2011; 21/12/2013; 30/12/2013 and 27/4/2014. Except in Ext.P37, all the other cards of the accused contain the inscription ‘+2’. He denied the suggestion that such a marking is given only to those persons who are close to him.

19.2. PW2 denied the suggestion that he wanted Shylaja to die (ഷ?ല1 മര ഗ ണത  എവ5 ആ ശ;  ആയ ര ന  എന  പറഞ ൽ ശര യല. See page 13 of his deposition). He denied having remarried after the incident. He denied the entire defense version, the details of which will be referred to shortly. He also denied the suggestion that the accused had merely enacted a role in the script prepared by him. (ഞ ൻ തയ റ   യ ത ര ഥയ ൽ പപത വയ ഉൾവAട & യത ണ  എന പറയ ന(Q) . ശര യല(A). See page 13 of his deposition).

There is no direct evidence as to what happened in the house after PW2 was assaulted and injured by the accused. We will refer to the circumstantial evidence pointed out by the prosecutor when we deal with the murder of Shylaja. The events after the incident are sought to be proved through PW7 and PW15. PW7 deposed that by about 10.30 a.m., he was on his way to Kilimanoor in his bike. When he reached the place by name Palakkunnu he saw the accused, an acquaintance, coming with a black bag on his shoulder. He gave a lift to the accused on his bike. The accused told him that the former had gone to take an order for his cattle feed business. PW7 identified MO2 to 4. In the cross-examination he stated that he had seen the accused on the said day after 10.45 a.m.

PW15, a neighbour was examined to prove that on the date of the incident he had seen the accused with a bag walking through the ridge of a paddy field towards the place by name Palamkonam. However, PW15 on examination turned hostile and denied having stated so to the police.

The first person to come to the scene of occurrence after the incident is PW26, who stated that he is acquainted with PW2 and Shylaja. He has known Shylaja from her childhood days. On 09/10/2014 he had gone to the house of PW2 to invite them for his son's marriage. He reached the house at 11.00 a.m. He was accompanied by his friend Sadanandan (CW25). When they reached M.S. Palace, the gate was found open. He rang the doorbell about 2-3 times. However, nobody responded. The front door was slightly ajar. They went to the side of the kitchen on the southern side of the house. They did not see anyone. Then they came back to the front of the house, placed an invitation card on the chair in the sit-out and was about to return, when they heard a cough, somebody vomiting and then a groan (അമർച). When they looked inside the house through a window on the northern side, they saw PW2 lying in a pool of blood. He rang up Gireesh Kumar (PW13) and asked him to come. PW13 arrived in 5 minutes. PW13 called two to three persons from the locality and when they went inside and checked, they saw Shylaja lying injured. PW13 took her in his car to the hospital. PW2 was taken to the hospital in another vehicle.

PW13 an acquaintance of PW2 and Shylaja, deposed that on 09/10/2014 about 11.30 a.m., Ayyappan Sir (PW26) called him over the phone and asked him to go to the house by name M.S. Palace. He immediately left for the said place. PW26 and CW25 Sadanandan were there. They told him that PW2 was lying in a pool of blood. They called two to three people and entered the house. The front door was half open. PW2 was on the floor in the office room. They called out to Shylaja. There was no response. Usha (CW59) and others went inside the house and checked. Shylaja was found lying in a pool of blood in a room inside. He went back to his house and returned in his car, in which car he along with others took Shylaja to the hospital. By 12.00 noon they reached the casualty. After about 15 minutes, the doctor informed that Shylaja was no more. According to PW13, Shylaja usually wears a gold chain with thali, which he did not see on her on the said day. He is also an attestor to Ext.P5 seizure mahazar. In the cross-examination he stated that his house is about 500 meters away from the scene of occurrence. According to PW13, the gate of M.S. Palace is usually found closed ( .See Page 3 of his deposition).

PW6, a tempo driver deposed that on 09/10/2014 by 11.00 a.m. PW13 informed him about the incident. When he reached the house, he saw the door half open and found PW2 lying in a pool of blood in the office room. Shailaja was taken to the hospital in the car of PW13. PW2 was taken in another vehicle to the hospital. When he saw PW2 and Shailaja, they had no ornaments on them. PW6 admitted that he is an attestor to Ext.P5 seizure mahazar prepared when articles were seized from the scene of occurrence.

PW18 deposed that PW2 was taken to the hospital in his car. Shylaja's earrings, ear chain and finger ring i.e., MO.8 had been given to him, which he handed over to the police. When he saw PW2 he asked where Shylaja was and then the latter gestured towards the next room.

Medical evidence relating to the injuries of PW2 is brought in through the testimony of PWs. 22 and 28. PW22, doctor, Ananthapuri hospital stated that on 09/10/2014 at 04.27 p.m., PW2 had been referred to his hospital from Gokulam Medical College Hospital and that PW2 was admitted and treated in the ICU. On the request of the investigating officer, he had collected blood sample of PW2, which was on the date of admission. When PW2 was brought to the hospital, he was unconscious. PW28 deposed that on 09/10/2014 while he was working as Neurosurgeon, Ananthapuri Hospital, Thiruvananthapuram, he had treated PW2, who had been brought to the hospital with a history of assault. According to PW28, PW2 had sustained head injuries with EDH, that is, collection of blood in the outer side of dura and SDH, that is, collection of blood external to brain and had a fracture of the skull bone. PW2 was discharged from the hospital on 19/11/2014. Ext.P15 is the treatment certificate dated 05/12/2014 issued by him.

PW1, the sister-in-law of the deceased, is the person who gave Ext.P1 FIS. In the FIS she states that, on 09/10/2014 at about 12.00 noon she was informed by her neighbour that PW2 and Shailaja had sustained injuries. Immediately, she along with her son Ajith proceeded to the house of PW2. On inquiry she was told by the neighbours that PW2 and Shailaja had been taken to the hospital. PW2 normally wears a gold chain weighing 5 sovereigns and a bracelet weighing 2 sovereigns. Shailaja usually wears a gold chain with thali weighing 3½ sovereigns and a bangle weighing 1 sovereign. She was told that when PW2 and Shylaja were taken to the hospital, the ornaments were missing. When she entered the house and looked around, she saw pools of blood in the front room and bedroom. The almirahs in the room were lying open. PW1 when examined stands by what she has stated in Ext.P1. In the box she stated that she had seen the almirahs kept in the bedroom of Shylaja and in the room to the back of the said room, open and ransacked.

Ext.P14 ownership certificate issued by PW25, the then Assistant Secretary, Pulimath Grama Panchayat is relied on to prove that the house by name M.S. Palace, Pullayil, the scene of occurrence, stands in the name of PW2.

PW32, the brother of deceased Shylaja has proved Ext.P21 scene mahazar, in which he is an attestor. He also deposed that the gate of the house usually remains closed. According to him, a person proceeding from the gate towards the sit out will not be able to see the kitchen or the well. He further deposed that keys had not been kept in the almirahs. The almirahs were found closed. To a question whether the almirahs were found ransacked, he answered in the negative. He did not see any cooked food in the kitchen. (അട  ളയ ൽ പ  ക  വ യCന ലയ ൽ ഒന   കണ ല. See page 2 of his deposition). According to him, he did not see anything out of the ordinary in the room in which Shylaja was found. (ഷ?ല1 ക ടന മ റ യ ൽഅസD ഭ   കമ യ  ഒന   ഇല യ ര ന .  See  page  3  of  his deposition).

PW24 the then Village Officer, Koduvazhannur, stated that as requested by the police, he had prepared Ext.P13 site plan relating to the scene of occurrence in this case.

PW29, grade ASI, Kilimanoor police station admitted that he is an attestor to Ext.P16 mahazar prepared when the lungi worn by PW2 had been seized. He had also witnessed the seizure of MO8 series ornaments of Shylaja as per Ext.P17 mahazar, in which mahazar also he has attested. He has attested in Ext.P18 mahazar prepared when the blood sample of PW2 had been seized.

PW34, the Scientific Assistant, DCRB, deposed that on the request of the police, in the afternoon of 09/10/2014 he had examined the scene of occurrence. Pools of blood were found on the floor in the rooms on the north-east and south-west of the house. Bloodstains were also found in the office room. He collected blood samples and some hair from the scene. The samples collected were handed over to the investigating officer. MO.194 to MO.201 are the samples collected from the scene of occurrence. He identified MO.1 hammer. When MO.1 was examined by him at the scene, he found visible stains on it. On preliminary examination itself, he had confirmed the presence of bloodstain on MO.1. He had carried out benzidine test to detect the presence of blood.

To connect the accused with MO1 hammer, the prosecution relies on the testimony of PW8, PW9, PW10, PW11, PW20 and PW27. PW8, a relative of the accused stated that he had seen the former taking a hammer from the workshop of Thampi (PW10). PW9, a neighbour of the accused deposed that during the year 2014, he was a trainee in the workshop of PW10. On 09/10/2014 at 9.00 a.m. the accused came to the workshop and requested a spanner, which was given by PW10. On the said day he saw the accused taking and inspecting a hammer lying outside the workshop. The accused took the hammer in a plastic cover. The accused came at 3.00 p.m. and returned the spanner. PW9 identified MO.1 as the hammer taken by the accused. According to PW9, when the accused came at 3.00 p.m., he had a bag in his possession.

PW10 deposed that during 2014 he was running a workshop. PW9 was helping him in the workshop. On 09/10/2014 he was not in the workshop. He went to the workshop in the afternoon. His workers then told him that the accused had taken two spanners from his workshop. By 4.00 p.m. the accused returned the spanners. He is acquainted with the accused who is an auto driver. On the said day, the accused was wearing blue pants and a shirt. The accused was also in possession of a bag. The previous day the accused had requested a loan of ₹500/-. PW10 also identified MO.1 hammer.

PW11 is conducting a bunk shop (മ റ   ൻ കട) adjacent the workshop of PW10. He knows the accused who is an auto driver. He has heard that the accused has a business in cattle feed. On 08/10/2014 at 9.00 a.m., the accused came to his shop to buy cigarettes. The accused was present in the locality of his shop and workshop till about 5.00 p.m. The accused had come to see PW10, who had told him that the former had come to ask for a loan of ₹500/-. He saw the accused coming on a bike on the next day at 9.00 a.m. On the same day at 3.30 p.m., the accused had come to the workshop at which time he had a bag with him.

PW36, the investigating officer deposed that he arrested the accused on 01/11/2014. Based on Ext.P8(a) disclosure statement given by the accused, he had seized the stolen gold ornaments and cash from the house of the accused, as per Ext.P8 seizure mahazar. The gold ornaments and cash seized are MO.6, MO.7, MO.13, MO.19 to MO.189 and MO.9 series to MO.11 series respectively. Based on Ext.P8(b) disclosure statement he had seized MO2 black bag, MO.3 pants and MO.4 shirt worn by the accused at the time of the incident. According to PW36, Ext.P8(c) is the disclosure statement given by the accused relating to the passbook of the accused and the earring which the accused had taken for pledging on the date of the incident. On 17/10/2014 he had directed the accused to appear before him. On 23/10/2014 the wife of the accused gave a complaint that the accused was missing, on the basis of which a crime was registered. Thereafter on 01/11/2014 he received information that the accused had returned home. On questioning the accused, he was convinced that the accused had committed the crime and hence arrested him. MO.1 hammer was recovered as per Ext.P9(a) disclosure statement given by the accused. The recovery was made from a property situated at the place by name Raroorkavu. Ashes seen near the place where MO.1 hammer was lying were collected by the Scientific Assistant and the same was produced before the court as per Ext.P56 property list. In the cross-examination PW36 admitted that he had not conducted any investigation into the aspect as to who had left the gates of the house open. To a question whether he understood that it was PW2 who had kept the gates open, he feigned ignorance. He also admitted that he did not check whether the keys of the car were in the car itself. PW36 admitted that the weighing scale, the table lamp, and other articles kept on the table in the office room were not found misplaced or in disarray. No blood was seen on the table, chair, the articles on the table or on the floor where the table and chair were placed. There was a pool of blood in the middle of the floor. The dining table did not show any indication of having been dined on. PW36 admitted that he does not know whether the gold ornaments stolen by the accused and the gold that remained in the house of PW2 had been kept in the same drawer of the almirah. The articles kept inside the almirah in the room where Shylaja was found, were found kept in an arranged manner. The gold ornaments seized from the house of PW2, had been pledged in the year 2014. It was among the said ornaments, the ornament that had been pledged by PW16 on the date of the incident, had been found. PW36 deposed that he cannot say the period during which the gold ornaments recovered from the house of the accused, had been pledged. PW36 admitted that the scene mahazar does not refer to the presence of keys in the almirah. To a question whether the keys had been seized from the drawer of the table kept in the office room, PW36 answered that he did not check whether the bunch of keys were that of the almirah. PW36 deposed that fingerprints seen on the plastic containers kept in the almirah of the room in which Shylaja was found, had been taken and that the same had been sent for examination. PW36 denied the suggestion that the fingerprints thus lifted were found to be that of PW2 and hence the reason why the result of the examination had not been produced before the court. He admitted that no fingerprints or hair of the accused had been found in the room in which Shylaja was found or the room in which the gold ornaments had been kept. PW36 admitted that mobile phones and SIM had been seized from the house. Two SIMs were in the name of Shylaja and one in the name of PW2. PW36 admitted that he never conducted any investigation relating to the last call received or the last call made from the phone of Shylaja. He also did not investigate the call details of PW2.

PW36, the C.I. who thereafter conducted the investigation and submitted the final report before the court in the cross-examination admitted that investigation had not been conducted to find out the origin of the fingerprints which had been lifted from the scene of the crime.

PW20 is the then Village Officer, Pulimath. According to him he had witnessed the police seizing gold ornaments, jeans, shirt, currency notes, bag, footwear from the house of the accused which are MO.1, MO.2 bag, MO.3, MO.4, MO.7, MO.9 series, MO.10 series, MO.11 series, MO.12 to MO.15, MO.16 series, MO.17 to MO.78 and MO.87 to MO.191. According to him he is an attestor to Ext.P8 mahazar prepared when the aforesaid articles were seized by the police. He also deposed that he is an attestor to Ext.P9 mahazar prepared when MO1 hammer was seized by the police. In the cross-examination PW20 deposed that it was at request of the police, he had gone to the house of the accused. He reached the police station at 10.30 a.m. He had first attested in the mahazar prepared at the house of the accused. There were other people also then present. He has no acquaintance with the accused. He had proceeded to the house of the accused in a police jeep accompanied by the Circle Inspector of Police and his team. There were about 10 to12 people at the place from where MO1 hammer was seized. MO1 was seized from a place about 50 to 60 meters away from the public road. It was the accused who first went to the said place followed by the police. He could see the place from where MO1 was taken from the place where he was standing. MO17 and MO18 polythene covers are in the same condition/state as he saw them on the date of seizure. There were bloodstains on MO.17 and MO.18. He also stated that he cannot say which all ornaments were in MO.17 and MO.18 covers.

PW27, the then Secretary of Raroorkavu temple stated that he is an attestor to Ext.P9 mahazar as per which he saw MO1 hammer, and ashes of a shirt and a cover burnt being seized from the compound of the temple. In the cross-examination he deposed that on all days there is pooja in the temple and that the waste from the temple is burnt in the compound of the temple.

The accused, when questioned under Section 313, has a specific defense case. According to him he is well acquainted with PW2. On 2nd October, he met PW2 at the market in Kilimanoor. PW2 invited the accused to his house. On the 3rd he went to the house of PW2, who took him to his office room, gave him ₹1,500/- and asked him to go and buy a bottle of liquor. He purchased one bottle of liquor from Kilimanoor and gave it to PW2. They both consumed liquor. PW2 then inquired about his loan. He told PW2 that the payment of one month is due. PW2 then told him that if the accused co-operates/stood with him, all his loans could be cleared. PW2 told him that his business has been insured. PW2 asked him to stage a robbery to get the insurance amount. PW2 promised to give him ₹5 lakhs from the insurance amount. While they were discussing the plan, Shylaja came into the room and so PW2 asked him to leave and come on the 5th. On the 5th morning he went to the house of PW2. PW2 then showed him two containers containing gold ornaments and asked him to keep it safely in his house and return them after the case. PW2 directed him to come on the 8th. He asked PW2 the manner in which the plan was to be carried out/executed. PW2 told the accused that the latter should beat him on his head and cause injury. The accused then asked PW2 as to what would happen in case death was caused by beating on the head, to which PW2 replied that the accused need not worry about the same and that necessary arrangements would be made. PW2 gave him ₹2,000/- as well as liquor on that day. PW2 asked him to ponder/think about the plan and directed him not to make any phone calls. The next day he went to the shop of PW10 and took a hammer from there. On the 8th after 10.45 a.m., he went to the house of PW2. He reached the house by 11.15 a.m. PW2 and Shylaja were at home. Shylaja opened the door for him. He went into the office room. PW2 said that it was not possible to execute the plan on the said day and so asked him to come on the next day. On the said day, he showed PW2 the hammer taken from the workshop of PW10. PW2 said that the said hammer was too heavy and that if he is beaten with the same, death would be caused and so told the accused that another hammer would be arranged. On the day at 10.15 a.m., he got off at the bus stop situated 150 meters away from the house of PW2. When he reached the house, PW2 was waiting for him with the gate open. He informed PW2 that he was ready to execute the plan. PW2 then brought two boxes in a plastic cover. All the gold ornaments contained therein were handed over to him. PW2 also gave him a hammer covered in a towel (ഗത ർ&) . PW2 asked him to beat him with the hammer. Initially he was reluctant. But when PW2 insisted, he beat PW2 once. The blow did not cause any injury. PW2 asked him to beat the former in a manner which would cause an injury. (ആദ;വ& അട യ ൽ മ റ ഞ ര ന ല അഗA ൾ PW2 മ റ യ ന തര& ൽ അട   ൻ പറഞ . See page 36 of his 313 statement). He then gave a strong/heavy blow to PW2. In the impact of the blow, PW2 fell on the floor. When he tried to hold PW2, the latter asked him to leave. He left with the ornaments and the hammer. He went to Kilimanoor, purchased a bottle of liquor, and returned to his house in the bike of PW7. The next day he came to know that somebody had murdered Shylaja. He then realized that he had been trapped. On 27/10/2014, he was apprehended by the police. The gold ornaments and hammer have been recovered from his house. According to the accused, he is innocent of the offences alleged against him.

We will for the moment keep aside the defense version and first consider whether the prosecution has been able to establish the case put forward. The chain of events from the morning till the incident of causing injury to PW2 is proved through the testimony of the witnesses herein above referred to. There are discrepancies in the testimony of PW8 to PW11 relating to the taking of MO1 hammer from the workshop of PW10. However, the said aspect is not seen challenged. On the other hand, the accused in his 313 statement endorsed the chain of events spoken to by the aforesaid prosecution witnesses. He admits that he had taken MO1 hammer from the workshop of PW10. The only aspect on which he has a different version is relating to the hammer used for the assault on PW2. According to him, MO.1 was not the hammer that had been used to assault PW2. At the instance of PW2 he had used a different hammer given by the former as PW2 feared that if MO.1 was used for the assault, the injury may prove fatal. It was a smaller hammer with a yellow and black handle that had been given to him by PW2 to be used in the drama to be enacted. The accused admits that a hammer had been seized from his house. PW20, the attestor to Ext.P9 mahazar, deposed that he had seen MO.1 hammer being seized. But PW20 is not seen to have identified MO.1. According to PW37, the investigating officer, MO.1 was seized as per Ext.P9 seizure mahazar based on Ext.P9 (a) disclosure statement given by the accused. PW27, another attestor to Ext.P9 mahazar, deposed that he had seen MO.1 hammer, and ashes of cloth and a cover that had been burnt, being seized from the compound of a temple. PW27 identified MO.1 hammer.

The fact that PW2 did sustain injuries on the said day is proved by medical evidence also, that is, the testimony of PW22 and PW28, and Ext.P15 treatment certificate. MO.1 showed the presence of blood belonging to blood group ‘O’. PW2’s blood group is also the same. We will shortly consider the arguments of the defense relating to MO.1 hammer. From the aforesaid evidence read along with the admissions made by the accused in 313 statement, we can safely conclude that the accused did cause injuries to PW2 on the said day. No serious arguments were advanced on behalf of the defense to show that the finding of the trial court relating to the offence punishable under Section 307 IPC is wrong. The accused has no case that the ingredients of the said offence are not made out from the evidence on record. Therefore, we can conclude from the aforesaid evidence that the trial court was right in concluding that the accused did commit the offence punishable under Section 307 IPC.

Now coming to the question whether it was the accused who had committed the murder of Shylaja. It was argued by the learned counsel for the accused, that there is absolutely no evidence to connect the accused with the murder of Shylaja. Testimony of PW2 is suspicious. Death of Shylaja took place much before the incident in this case, which is clear from the testimony of PW33, the doctor who first examined Shylaja, who stated that rigor mortis had set in when she examined the patient at 12.45 p.m. The incident in this case is alleged to have occurred between 10:10 a.m. and 10.30 a.m. Therefore, if Shylaja had been murdered then, rigor mortis would not have set in when PW33 examined her. Though fingerprints and strands of hair were taken from the scene of occurrence, the result of the same has not been produced before the court. There has been suppression of material evidence from the court. These aspects coupled with the other suspicious circumstances raise doubts regarding the prosecution case and hence the accused is entitled to the benefit of doubt, contends the accused.

Per contra, it was submitted by the learned Public Prosecutor that the defense case set up by the accused is a false story. The injuries sustained by PW2 in the incident were quite grievous. The injuries sustained do not match the defense story that the accused had only hit PW2 with a hammer twice. The fact that the injuries were quite serious is all the more clear from the fact that PW2 regained consciousness only after 19 days. It cannot be believed that a person would risk near death to get the insurance amount. MO.14, the gold chain with thali of Shylaja had been recovered from the house of the accused as per Ext.P8(a) disclosure statement. This would certainly connect him with the crime. If the gold ornaments had been handed over to the accused by PW2 on the previous day as claimed by the accused, then there would have been no bloodstains on the same. The accused has not explained how he came into possession of ₹33,000/- which was recovered from his house. He has also not shown as to how he deposited an amount of ₹20,000/- in his bank account on 10/10/2014, when evidence on record shows that on the previous day he did not even have ₹500/- and that he had asked for a loan to PW10 for the said amount. Even going by the admission made by the accused, he was very much present at the scene of occurrence on the relevant day. Based on the last seen together theory, it is the duty of the accused to explain what happened to Shylaja. This last seen together theory coupled with the recovery of MO.14 gold chain of Shylaja, according to the learned Prosecutor clearly links the accused with the murder of Shylaja and therefore, the argument is that the defense version is liable to be rejected.

As can be seen from the evidence herein above discussed, there is no direct evidence to connect the accused with the murder of Shylaja. PW2 only speaks of the incident of the accused assaulting and injuring him. According to PW2, on receiving the second blow to his head with the hammer, he became unable to speak. He has no case that he became unconscious after he received the blows. However, his testimony does not give any indication as to what happened thereafter. The only material that we have before us is the alleged recovery of MO.14 gold chain of Shylaja from the house of the accused and the last seen together theory. The question is whether these two aspects are sufficient to conclude that it is the accused who murdered Shylaja. The testimony of PW16 shows that when she had gone to pledge gold ornaments on the date of the incident at 09.20 a.m., she had seen Shylaja proceeding from near the well of the house towards the bathroom. But if PW32, the brother of the deceased is to be believed, a person proceeding from the gate towards the sit-out of the house will not be able to see the kitchen or the well. However, the testimony of PW16 that she did see the deceased on the said day has not been challenged or discredited. Therefore, we will take it that PW16 did see Shylaja and that the latter was in fact alive at 09.20 a.m. PW33, the doctor who first examined the deceased stated in the cross examination that she cannot say for sure whether rigor mortis had set in, or the time required for rigor mortis to set in. The testimony of PW33 does not further the case of the accused.

Now coming to the suspicious circumstances pointed out on behalf of the accused. It was pointed out on behalf of the accused that the prosecution witnesses have deposed that normally the gate of PW2's house would remain closed. But on the said day, quite unusually both the gates were lying open. Not only the gates, but all the doors of the house including the door of the car had been left open. The keys of the car were kept in the car itself. This is one unusual circumstance pointed out by the defense. PW13, PW16 and PW32 have deposed that normally the gate would be lying closed. PW16, one of the customers of PW2 has deposed that she had pledged ornaments on several earlier occasions and then it was PW2 who would come out and open the gate for her. As pointed out by the learned defense counsel, it does appear strange that all the doors, the front as well as the back doors were found lying open on the said day. The prosecution does not have a case that the accused had broken up the lock of the doors. It has come out in evidence that a substantial quantity of gold ornaments had been kept in the house. The prosecution case is that 700 and odd grams of gold ornament had been robbed by the accused. In addition to the same, a reading of Ext.P21 scene mahazar shows that many more gold ornaments had been stored in the almirah kept in the bedroom on the south-eastern side of the house. These ornaments include 57 items of ornaments that had been pledged by various customers as well as other gold ornaments, which must have been the ornaments of Shylaja. An amount of ₹38,300/- was also found in currencies of various denominations. Therefore, in such circumstances, it was certainly not quite normal to leave the gates and all the doors open. Strangely PW36, the investigating officer never thought it necessary to conduct any investigation into this aspect.

According to PW2, on the morning of the date of the incident he had gone to the market to buy fish. He returned home and left the fish in the sink. It was pointed out by the learned counsel for the accused that Ext.P21 scene mahazar prepared on the same day at 17.15 hours does not refer to the presence of fish either in the kitchen sink or in the sink in the dining room. This was pointed out as one aspect to suspect the testimony of PW2. It is true that Ext.P21 scene mahazar does not make any reference to the presence of fish in either the sink of the dining room or kitchen. But PW2 came back from the market at about 07.30 a.m. According to the prosecution, the incident took place sometime between 10.10 a.m. and 10.30.a.m. The fish might have been removed from the sink during that time. It is unlikely to have been left in the sink from 07.30 a.m. till 10.00 a.m. or so. It is true that there is no evidence to show that it had been removed from the sink. But this is possible especially when PW2 has stated that Shylaja was at home when he returned from the market. Therefore, this aspect alone cannot be taken to disbelieve PW2.

It was further pointed out that going by the version of PW2, they had breakfast on the said day at 09.00 a.m. But when the postmortem of Shylaja was conducted, her stomach was found nearly empty. Therefore, the argument is that, if Shylaja had breakfast by 09.00 a.m., the presence of food particles would certainly have been detected in her stomach when postmortem was conducted on the next day between 11.20 a.m. to 12.20 p.m. But none was detected, which is yet another ground to suspect the prosecution case. This argument does not seem to be correct because PW2 only deposed that they usually have breakfast by 09.00 a.m. He did not specifically say that on the date of the incident Shylaja did have breakfast. Going by his testimony, when he returned from the market, he saw Shylaja going into the bathroom to take her bath. PW2 admits that thereafter he had not seen her or enquired about her till 10.00 a.m. In such circumstances, he could not have seen whether Shylaja did have breakfast or not or the activities done by her.

Another suspicious circumstance pointed out is the presence of a liquor bottle, which is also referred to in Ext.P21 scene mahazar. (ട അറയ ൽ സFസർ ഇന& ൽവAട ത റന ഒര  മദ;  A യ ൽ മദ;  ഇര ന ക ണ ന ................. See page 13 of Ext.P21). According to the learned defense counsel, the presence of the liquor bottle tallies or corroborates the story of the accused regarding the purchase of a bottle of liquor, when he had gone to the house of PW2 on a previous occasion. PW2 when examined deposed that after the year 2008, he had never purchased liquor and that during the relevant period, there were no liquor bottles either full, half, or empty at his residence. No explanation is forthcoming from the prosecution regarding the presence of a bottle of liquor in the house. There is yet another suspicious circumstance pointed out in the testimony of PW2. As referred to earlier, the specific case of the prosecution is that the accused, on the pretext of pledging a pair of gold earrings had entered the office room of PW2 and while PW2 was weighing the ornament, the accused attacked him. PW2 admitted in the cross examination that on earlier occasions also, the accused had pledged gold ornaments with him. PW2 admitted that the gold ornaments earlier pledged by the accused which include a pair of earrings had not been redeemed by the accused. He also admitted that in the year 2011, the accused had pledged a pair of earrings. It was then suggested to him that the said earring is the earring that has been produced by the prosecution as the earring alleged to have been brought by the accused on the date of the incident for pledging to which PW2 failed to give any answer.

(Ext.P33 മ തൽ Ext.P38  വരയ ള ക ർഡ കൾ പപത  പണയ  വ ചത ണ .192 ന"റ യ  21 -11 -11 ൽ വ ച പണയ പപത എട & ട ല. അത ൽ ഒര ഗ1 ഡ  കമൽ പണയ  വ ച ട ല. Adds ഉണ .വ യ ന   ഉണ .കമല ന വറ ത6  2.4 gm ആണ  എന  പറഞ ൽ ശര യല. വമ &  ത6 മ ണ  ഞ ൻ എഴ ത യ ര   നത .ആ കമല ണ  പപത ക:ത;ദ  സ പണയ വ യ   ൻ വക ണ   ന  എന ഗപര ൽ ഹ 1ര   യ ട ളത  എന  പറയ ന? (Q) No answer.) According to the learned Public Prosecutor, item No.192 had not been pledged on 21/11/2011. On the other hand, it was pledged on 21/07/2011. Ext.P33 is relating to an ear-stud and chain pledged by the accused on 21/07/2011. The question put to PW2 was relating to items pledged as per Ext.P33. Therefore, the argument is that, since the question was an incorrect one, the witness remained silent. If that be so, then PW2 should have answered so and denied the suggestion put to him. If it was a wrong question put to PW2 and an ambiguity had been created, then the same ought to have been clarified in the re-examination of PW2. The silence of PW2 on this crucial aspect speaks volumes. The definite prosecution case is that the accused had approached PW2 on the said day on the pretext of pledging a pair of earrings. That story itself appears doubtful in the background of the silence of PW2.

Now coming to MO.14 gold chain alleged to have been recovered from the house of the accused. PW1 deposed that PW2 usually wears a gold chain and a gold bracelet, and that Shylaja wears a thali chain and a bangle. PW13, PW6 and PW18 deposed that on the said day, when they had seen PW2 and Shylaja and when they were taken to the hospital, these ornaments were missing. It has come out in evidence that MO.8 series earrings, ring and ear chain worn by the deceased at the time of the incident had been handed over by the hospital authorities to PW18. But this does not include the gold chain worn by the deceased. PW2 identified MO.14 as the chain with the thali that was worn by his wife. PW36, the investigating officer deposed that based on Ext.P8(a), the alleged disclosure statement of the accused, he had seized gold ornaments and cash from the house of the accused and that Ext.P8 is the seizure mahazar prepared then. As per Ext.P8 mahazar, 176 items of gold ornaments are stated to have been recovered from the house of the accused. Item no.154 in Ext.P8 is stated to be MO.14 gold chain. Item no.154 has been produced before the court along with the other items as per Ext.P4 property list in which MO14 thali chain is referred to as item no.9. Item no.9 in Ext.P54 is described as a blood-stained gold chain. It was argued by the learned Public Prosecutor that the recovery of MO.14 chain from the accused itself would prove that the defense version is false, because the case of the accused is that PW2 had handed over two containers containing gold ornaments. The accused has no case that MO14 chain had also been handed over to him by PW2. He also does not give an explanation for the recovery of the said item from his house as per Ext.P8(a), points out the prosecutor.

It is true that the testimony of PW2 identifying MO.14 as the gold chain of his wife, is not seen challenged. MO.14 was sent for forensic examination and Ext.P41 is the report relating to the same. Item no.21 in Ext.P14 is MO.14. Ext.P41 says that items 17 to 23 contained human blood. PW2's blood group is 'A'. The blood group of the deceased is 'O'. It has been explained by PW35, Asst. Director, Serology who issued Ext.P41 that blood group 'A' is dominant and so if it gets mixed with blood group 'O', the presence of blood in blood group 'A' alone would be detected. This was pointed out as the reason why the blood of Shylaja had not been detected in MO.14 or on MO.1 hammer. Going by the prosecution case, MO.14 was worn by Shylaja. So how did the blood of PW2 come on the same? No explanation is forthcoming for the same. Moreover, PW36, the investigating officer specifically refers to the items that had been recovered from the house of the accused based on Ext.P8(a) disclosure statement. PW36 deposed that he had seized the stolen gold ornaments, currency notes, the bag and the dress worn by the accused at the time of the incident. Ext.P8 is the mahazar prepared then. Going by the testimony of PW36, he had seized MO.6, MO.7, MO.13, MO.19 to MO.189 gold ornaments and MO.9 series to MO.11 series currency from the house of the accused as per Ext.P8 seizure mahazar, which items were produced before the court as per Ext.P54 property list. This conspicuously does not include MO.14 gold chain. It is true that MO.14 is referred to specifically in Ext.P8 mahazar. But the contents of a mahazar is not substantive evidence and it becomes substantive evidence only when it is deposed to in the court by the investigating officer, which has not been done in this case.

It was submitted by the prosecutor that the accused was the last person present at the scene of occurrence on the said day. PW16, Sudharma had seen Shylaja at 9.20 a.m. in the house. Thereafter, when PW26 came to the house he saw PW2 lying injured and Shylaja dead. The testimony of the other prosecution witnesses establishes the presence of the accused near the scene, which the latter also admits. The accused also admits that he had gone to the place and attacked PW2. Therefore, the burden is on the accused to explain what had happened or transpired during the said day, argues the prosecutor. It is true that the presence of the accused at the scene of crime between 10.00 a.m. and 10.30 a.m. has been established. But based on the last seen together theory alone, it may not be safe to conclude that the accused is the person who committed the murder of Shylaja especially when there is no other evidence to connect the accused with the crime coupled with the other circumstances pointed out by the defense. (See Jabir v. State of Uttarakhand, 2023 SCC Online SC 32). It is admitted by both PW36 and PW37, the investigating officers, that fingerprints and strands of hair had been lifted from the scene of occurrence. PW37 in fact admitted that no investigation was conducted to find out whose fingerprints they were. As to why no examination was conducted to ascertain the same, has not been explained by the prosecution. Added to this, PW36 admitted that no fingerprints or strands of hair of the accused had been seized from the place of occurrence. The prosecution does have a case that the accused, to prevent detection had worn socks during the incident and that the socks had been burnt by the accused in the property from where MO.1 hammer had been recovered. PW27, an attestor to Ext.P9 mahazar does speak of seizure of ashes from the compound of a temple from where MO.1 hammer was recovered. But the ashes stated to have been seized were never subjected to any examination to prove the prosecution story of destruction of evidence by the accused. This failure on the side of the prosecution must be viewed in the light of the testimony of PW27 who deposed that the waste from the temple is also burnt in the compound of the temple. Therefore, the trial court was certainly right in acquitting the accused for the commission of the offence punishable under Section 201 IPC.

Now coming to MO.1 hammer alleged to have been recovered at the instance of the accused by PW36 on 01/11/2014 at 13 hours as per Ext.P9 mahazar. Ext.P9 mahazar is seen produced before the court on 04/11/2014. PW36 admits that MO.1 hammer was produced before the court only on 11/11/2014. No explanation is forth coming from the prosecution for the delay in producing MO.1 before the court. It is here the argument advanced by the defense for the delay assumes importance. It was pointed out on behalf of the accused that the blood sample of PW2 had been collected on 09/11/2014. Thereafter PW36 manipulated evidence by applying the blood of PW2 on MO.1 hammer alleged to have been recovered on 01/11/2014. It was to manipulate the evidence, PW36 delayed the production of MO.1 hammer before the court, argues the defense counsel. No reason(s) whatsoever has been furnished by the prosecution as to why MO.1 was not produced on 01/11/2014 or at least along with Ext.P9 mahazar on 04/11/2014. The possibility of tampering with the evidence cannot be ruled out, especially when no explanation whatsoever is forthcoming from the prosecution for the delay in producing MO.1 before the court.

There are certain other circumstances also that raise doubts which remain unanswered by the prosecution. Going by the version of PW1, the almirahs in the house were all open and found ransacked. But neither PW32 who is none other than the brother of Shylaja nor PW36, the investigating officer has such a case. According to PW32, who is stated to have been present when the scene mahazar was prepared, the almirahs were found closed and that they had not been ransacked. PW36 deposed that all the things in the almirahs where Shylaja was found, were seen kept arranged. PW2 deposed that when he is at home, he does not lock the almirahs in which the gold ornaments are kept, and the keys are kept in the lock of the almirah itself. But PW36 deposed that the keys were not seen kept in the keyhole of the almirah. On the other hand, he found a bunch of keys inside the drawer of the table in the office room. He also admitted that he did not check and find out whether the bunch of keys found inside the table in the office room were that of the almirah from which the ornaments and gold had been robbed.

Further, PW2 stated that on said day by 9.am. or so he had his breakfast. But PW36 deposed that the dining table did not show any sign that it had been dined on. PW32 deposed that he did not see any sign of cooking activity in the kitchen on the said day. PW2 deposed that Shylaja had told him that she would be going to the Collectorate after 10 a.m. on the said day. He also stated that Shylaja usually goes out after preparing meals/food for the day. The incident is supposed to have taken place sometime between 10:10 a.m. and 10:30 a.m., by which time Shylaja must have finished the cooking for the day. But the testimony of PW32 shows that no cooking activity had taken place in the kitchen on the said day.

A reading of Ext.P21 scene mahazar shows that a knife had been kept beneath the pillow in the bedroom of Shylaja. So, was Shylaja expecting an attack on her? We are unable to find any answer from the materials on record.

There is yet another aspect on which doubts further arise in our mind. According to PW2, all the gold ornaments belonging to the family and the pledged gold ornaments had been kept in the same drawer of an almirah kept in the bedroom. Even going by the prosecution case, only 700 odd grams of gold ornaments had been robbed by the accused. The rest was there in the almirah which is referred to in the scene mahazar. 57 items of pledged gold ornaments in addition to other gold ornaments are seen noted in the mahazar. Going by Ext.P21 scene mahazar, the office room in the front and the south-western rooms are the rooms in which PW2 and Shylaja were found. The gold ornaments and cash were stated to have been kept in an almirah in the south-eastern room. Ext.P21 scene mahazar says that in addition to 57 items of pledged ornaments and other gold ornaments, there was an amount of ₹38,300/- kept in currencies of various denominations. It seems quite odd that only a portion of the ornaments were selectively taken away by the accused, leaving the rest intact. This aspect has to be viewed in the light of the testimony of PW32 and PW36 that they did not find the almirahs ransacked.

In Ext.P21 mahazar it is also stated that on the dining table three mobile phones, a file with bloodstains, two plastic containers with fingerprints and an aluminum rod with fingerprints were seen. All these were also seized by PW36. The calls made or received on the mobile phones were never checked by the investigating officers. The examination of the chance fingerprints lifted from the scene of crime, for reasons best known to the investigating officers was not done, for which no plausible reasons, much less a reason has been attempted to be given by the prosecution.

PW2 admits that the gold pledged by the accused on earlier occasions right from the year 2011 had not been redeemed till date. The packets containing the ornaments pledged by the accused had the sign ‘+2’ inscribed on it. According to PW2, this inscription is made relating to the transactions of customers who are prompt in repaying the loan. Obviously, the accused going by the version of PW2, does not fall in this category of customers. But still the packets containing the gold pledged by the accused contained the said inscription. So was the inscription made because the accused was well acquainted and close to PW2 as claimed by the former? That may have been a possibility. All the aforesaid aspects raise serious doubts in our mind regarding the prosecution story.

The story put forward by the accused though does not appear to be completely true, there appears to be elements of truth in the same. However, the accused has no explanation as to why he went missing after the incident. PW36 deposed that on 23/10/2014, the wife of the accused had given a man missing complaint for which a crime had been registered. The accused thereafter returned home on 01/11/2014. It was pointed out by the defense counsel that the accused had not absconded immediately after the incident and so his disappearance thereafter is not of much consequence. True, the accused went missing only a few days after the incident. But he offers no explanation for his absence after the crime. It has also come out in evidence that the accused was under financial constraints. The fact that the accused had financial constraints is spoken to by PWs.12, 14, 23 and 29. The accused in his 313 statement has only a case that ₹5 lakhs had been promised by PW2. He has no case that the said amount had been given by PW2. Apart from that the accused only says that he was given ₹2,000/- on the day prior to the date of the incident by PW2. The testimony of PW10 shows that the accused had sought a loan of ₹500/- from him on 08/10/2014. The testimony of PW14 and PW23 establish that the accused had availed a housing loan of ₹7 lakhs and that the accused had defaulted repayment. The testimony of PW12 establishes that the accused owed him an amount of ₹30,000/- odd which the latter had promised to return on 10/10/2014. However, the accused never returned the same. In these circumstances, the accused certainly had a duty to explain the recovery of ₹33,000/- from his residence especially when he has no case that apart from gold ornaments, money had also been handed over by PW2 as part of the drama to be enacted. No explanation is also forthcoming from the accused as to how he remitted an amount of ₹20,000/- in the bank on 10/10/2014, which aspect is established by the testimony of PW14 and PW23. Therefore, the entire defense story does not seem to be true. But accused can take up inconsistent stands also. It is the duty of the prosecution to prove the case beyond reasonable doubt. The accused has been successful in picking holes in the story of the prosecution. The accused probably may have committed the murder of Shylaja also. But suspicion, however strong, cannot take the place of proof. There is no serious challenge to the conviction of the accused for the offences punishable under Sections 449, 307 or 394 IPC. The only challenge made is against the conviction and sentence under Section 302 IPC. The evidence on record is not satisfactory to establish that it was the accused who committed the murder of Shylaja. Hence, we are of the view that the accused is entitled to the benefit of doubt on the said aspect.

In the result, the appeal is partly allowed. The conviction and sentence of the accused by the impugned judgment for the offence punishable under Section 302 IPC is set aside. The conviction and sentence of the accused for the offences punishable under Sections 449, 307 and 394 IPC is confirmed.

Interlocutory applications, if any pending, shall stand closed.