Prasad vs State Of Kerala

P.B.Suresh Kumar, J.

The first accused in S.C.No.382 of 2014 on the files of the Sessions Court, Palakkad who stands convicted and sentenced for the offences punishable under Sections 120B, 201, 302 and 397 read with Section 34 of Indian Penal Code, 1860 (IPC) is the appellant in this appeal.

One Raghu @ Kannan was a taxi driver operating from Chelakkara. The dead body of Raghu was found in a mutilated state in Thirunellayi River on the morning of 07.12.2012. A crime was registered by Palakkad Town South Police on receiving the said information and it was revealed from the investigation that ensued that Raghu was murdered in furtherance of a conspiracy. A final report was consequently filed in the case against nine accused who were found responsible for the murder and incidental offences.

The accusation against the accused in the final report is that accused 1 to 8 hatched a conspiracy to rob a luxury car and then rob persons transporting smuggled gold making use of the robbed luxury car; that in furtherance to the said conspiracy, accused 1 to 4 managed to obtain, on hire basis, the Tavera Car owned and driven by Raghu and boarded the same in the pretext of going on a trip to Ooty; that en-route, at about 11.50 p.m., the first accused attempted to inject cyanide into Raghu and when the said attempt failed, the first accused with the help of accused 2, 3 and 4 stabbed on the neck of Raghu with a knife causing a fatal injury and that later, the second accused slashed the neck of Raghu and accused 3 and 4 hit him using a stone to ensure his death. It is also the accusation in the case that after ensuring the death of Raghu, the accused disposed the body in Thirunellayi River. The accusation against accused 5 to 8 is that they having knowledge about the plot to commit such a criminal act, facilitated the act by concealing the same. The accusation against the ninth accused is that he harboured the first accused despite having the knowledge about the offence he had committed.

On committal of the case by the Jurisdictional Magistrate, the Sessions Court took cognizance of the offences and framed charges against the accused. The accused denied the charges. At the consequent trial, PWs 1 to 61 were examined and Exts.P1 to P94 were marked on the side of the prosecution. MOs 1 to 44 were identified. Exts.X1 to X3 were also received in evidence.

During the trial, an application was filed by the fourth accused seeking pardon. The Sessions Court allowed the said application and the pardon tendered by the Court was accepted by the fourth accused. PW59 examined on the side of the prosecution, in the circumstances, is the fourth accused himself.

On a close reading of the prosecution evidence, the accused were questioned in terms of Section 313(1)(b) of the Code Of Criminal Procedure (the Code). The accused denied the incriminating circumstances found in the evidence. The stand taken by the first accused at that stage was that he has been falsely implicated in the case. As the Court of Session did not find the case to be one fit for acquittal of accused 1 to 8 under Section 232 of the Code, they were called upon to enter on their defence, after acquitting the ninth accused. Two witnesses Dws.1 and 2 were examined and Exts.D1 to D9 were marked by the accused at that stage. Thereupon, on a consideration of the materials on record, the Court of Session found accused 1 to 8 guilty and convicted them. It is aggrieved by the said decision of the Court of Session that the first accused has come up with this appeal.

Heard the learned counsel for the appellant as also the learned Public Prosecutor.

The point that falls for consideration is whether the conviction of the first accused and the sentence imposed on him, is sustainable in law.

Let us now examine the evidence on record. It is seen that the attempt of the prosecution initially was to prove the charge against the accused with the aid of circumstantial evidence. However, since the fourth accused could be examined as a witness in the course of the trial and since the evidence tendered by him supported the prosecution case, the case no longer rests on circumstantial evidence. But since the fourth accused being an accomplice to the crime and the only direct evidence available in the case is that of the fourth accused, in the light of the provisions contained in Sections 114(b) and 133 of the Indian Evidence Act read together, it is only prudent on the part of the Court to ensure that the evidence tendered by the fourth accused as a witness, is corroborated in material particulars by other independent evidence. Of course, it is trite that the nature and extent of corroboration required depends upon the facts and circumstances of each case [See Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, (2006) 13 SCC 210]. It is also necessary to clarify at this stage that corroboration does not mean that every detail of the evidence needs to be confirmed by independent evidence. Corroboration, in the context, means that there has to be additional evidence rendering the evidence of the approver probable [See Mrinal Das v. State of Tripura, (2011) 9 SCC 479, Thadiyantevida Nazeer v. State of Kerala, 2022 SCC OnLine Ker 357].

The fourth accused as PW59, gave in his evidence a complete narration of the events that took place on the date of occurrence and on the day following the same, right from the time at which the fourth accused joined the company of accused 1 to 3, till he left their company. PW59 deposed that at about 7.30 a.m. on 06.12.2012, while he was on his way home, he saw accused 1 to 3 sitting in an Alto Car near his house; that even though the fourth accused had not joined them then, he joined their company after a short while and all of them proceeded thereupon to Chelakkara taxi stand. PW59 deposed that at the Chelakkara taxi stand, the second accused got out of the car alone and came back after sometime with a visiting card and thereafter, they proceeded to Vadakkencherry and that the fifth accused joined their company in the meanwhile. PW59 deposed that they thereupon went to Mattuvazhi, from where the second accused made a call from a telephone booth and informed others that the taxi is ready and then the second accused proceeded in a bus to fetch the taxi and after sometime, the second accused informed over the mobile phone of PW4 to the first accused that he secured the taxi. PW59 deposed that thereafter, they proceeded to Elanad in the Alto Car and at Elanad, they met the second accused in a Tavera Car driven by Raghu, the deceased. PW59 deposed that from there, he along with accused 1 and 3 proceeded in the Alto Car and the second accused proceeded in the Tavera Car and when they reached near the house of the first accused, all of them boarded the Tavera Car and proceeded further. PW59 deposed that at Thennilapuram, they stopped the car for the second accused to meet someone and after a short while, the second accused came back and informed them that the person he wanted to meet is not available and therefore, the trip to Ooty has to be dropped. PW59 deposed that at that time, Raghu informed his house over telephone that the Ooty trip is cancelled and that he is returning. PW59 deposed that while returning, at about 11.00 p.m, as required by them, Raghu stopped the car for them to consume liquor and at that time, the first accused who was sitting in the seat behind the driver’s seat, tried to inject into the deceased, cyanide which the first accused carried using a syringe and when the said attempt failed, the second accused reached near the driver's seat and with the help of the first accused, pushed the deceased down. PW59 deposed that a knife was then handed over by the second accused to the first accused and using the same, the first accused tried to stab Raghu, which Raghu had grabbed. PW59 deposed that immediately, the third accused obtained the knife and gave it to the first accused. PW59 deposed that immediately, the first accused stabbed Raghu, causing a piercing injury on his neck. PW59 deposed that the first accused then handed over the knife to the second accused and using the stone given by the second accused, the first accused hit on the head of Raghu. PW59 deposed that the second accused then slashed the neck of Raghu to ensure his death. PW59 deposed that thereafter on satisfying that Raghu had died, they took the body of the deceased to the back seat of the car and since blood oozed out and spilled on the road, they had collected waste to cover the blood and set fire to the same using alcohol. PW59 deposed that they proceeded thereupon to Choolipadam along Kunnupuram in the car and on reaching Puthukkode, the mobile phone and sim of the deceased were thrown into a public well there and proceeded to Thirunellayi. PW59 deposed that at Thirunellayi, they disposed the corpse in the river by placing it on a bed sheet and before doing so, the second accused tore open the abdomen of the body to ensure that the body is immersed in the river. PW59 deposed that they thereafter proceeded in the said car to Coimbatore and on reaching Pollachi road, they slept inside the vehicle until morning. PW59 deposed that on the way, they abandoned a bed-sheet, flex and plastic sheet into the bed of a river where there is no flow of water. PW59 deposed that at about 6.00 a.m, they went to Puthanamkulam, where they refreshed themselves from the public comfort station and at that place, they cleaned the vehicle, and the towels used to clean the vehicle were left in the comfort station. PW59 deposed that the knife they had used to kill the deceased was also abandoned near a pond there. PW59 deposed that thereupon they proceeded to a place called Ganapathy, before which they abandoned their used clothes in different places. PW59 deposed that after drinking tea from a shop, the first accused contacted a few persons, in his attempt to sell out the Tavera car and since the attempt failed, they abandoned the car at Ganapathy and went to Coimbatore. PW59 deposed that he left the company of others at the Coimbatore Railway Station and returned to his native, after collecting the money due to him from his previous employer at Coimbatore.

PW59 was cross-examined at length. It was attributed by the accused that it is due to some previous enmity that PW59 tried to implicate them. During the cross-examination of accused persons, every aspect deposed by PW59 was challenged. However, no serious contradictions or inconsistencies could be brought out. The reason highlighted in support of the plea to reject the evidence of PW59 is that he did not disclose the whole truth. Going by the case of the prosecution, PW59 also hit the deceased using the stone on his head. The version of PW59, however, was that he only gave the stone to the first accused and it was the first accused who hit the deceased using the stone. From the narration of the matters that had transpired from the point of time PW59 joined accused 1 to 3, and till he left the group, the version of PW59 is coherent and appears natural. Of course, the prosecution had initially an allegation that PW59 hit on the head of the deceased using the stone, which PW59 did not state in his evidence. Inasmuch as there is no eye-witness to the occurrence, such a case must have been framed by the prosecution on the basis of the information gathered during the investigation, and merely for the reason that the said part of the prosecution case was not endorsed by PW59, having regard to the peculiar facts of this case, it cannot be held that the evidence of PW59 is unreliable.

PW40 is the doctor who conducted the autopsy on the body of the deceased and issued Ext.P29 autopsy certificate. PW40 deposed that the death was due to the incised penetrating wound sustained to the neck of the deceased as the same penetrated the chest cavity and left lung and that the said injury could be inflicted using MO8 knife.

PW5 is the wife of the deceased. PW5 deposed that at about 7.00 p.m. on 06.12.2012, while at home, the deceased received a call requiring his car for a trip to Ooty; that he agreed to undertake the trip and left home at 8.00 p.m. in his Tavera Car for that trip to Ooty; that at about 10.00 p.m., the deceased informed his father that the party is not good and that he is therefore returning by cancelling the trip. PW43, the father of the deceased also gave evidence on the same lines on which PW5 gave evidence.

PWs 2 and 4 are two taxi drivers at Chelakkara. The version of PW4 was that on 06.12.2012 at about 7.30 p.m., the second accused reached the taxi stand in search of a vehicle to go to Karipur Airport and as the vehicle of PW4 did not suit the requirement stated by the second accused, PW4 contacted PW2 and enquired with him whether he is willing to go for the trip. PW4 deposed that PW2 refused to undertake the trip as the party was a stranger. PW4 also deposed that soon, the second accused went to the bakery of PW6 in the vicinity and made a call using the coin telephone kept there. PW2 affirmed the said version of PW4 in his evidence. PW6, the owner of the bakery also affirmed in his evidence that the second accused came to his bakery at about 7.30 p.m. on 6.12.2012 and made a call using the coin box kept there. PW9 runs an electric shop at Chelakkara. PW9 deposed that at about 8 p.m., while his shop was to be closed, the second accused came there and required his mobile phone to make a call. The excuse stated by the second accused for the same was that there was no balance in his mobile phone. PW9 did not find anything unusual in the conduct of the second accused and gave his phone to him to make a call, and after making the call, the second accused returned the phone to PW9. PW9 added that on the next morning, he came to know of the death of Raghu who was known to him.

PW7 is an employee in a Petrol Pump operating at Chelakkara. PW7 deposed that he had acquaintance with the deceased as a taxi driver operating from Chelakkara Taxi Stand. PW7 deposed that at about 9.00 p.m. on 06.12.2012, the deceased came to the petrol pump and filled full tank fuel in his Tavera Car, and the second accused was there in the car at the time and that the deceased told PW7 that he is on a trip to Ooty. PW7 admitted that he had no previous acquaintance with the second accused, but he was categoric that for about 15 minutes the car was at the petrol pump and PW7 could identify the second accused.

Now let us see the evidence other than the oral evidence. PW59 was arrested on 07.12.2012 itself. PW61, the Circle Inspector of Police deposed that on the basis of the information furnished by PW59 that the car of the deceased was abandoned at Ganapathy, PW59 was taken to that place, where they reached at 3.45 a.m. on 08.12.2012. The vehicle was found parked on the road side and it was seized under Ext.P6 mahazar. Ext.P68 is the information given by PW59 to PW61 that lead to the recovery of the Tavera car.

The second accused was arrested on 12.12.2012 at 12.00 noon from Govinda Estate at Kollur in Karnataka. The second accused was soon produced before the Jurisdictional Magistrate, and on 17.12.2012, after getting him in police custody, his statement was recorded. It was disclosed in the statement of the second accused that the knife which was allegedly used to cause the death of the victim namely, MO8 was thrown away near the pond at Muthannamkulam, Coimbatore. In the light of the said statement, PW61 took the second accused to that place, discovered and seized the knife in terms of Ext.P10 seizure mahazar. PW28 is a witness to Ext.P10. The recovery was effected at about 12.30 p.m. on 17.12.2012. MO8 was identified by PW59 before the court as the knife that was used to inflict injuries on the body of the deceased.

PW61 deposed that during interrogation, PW59 disclosed that the mobile phone of the deceased was dropped in a well at Thekkegramam near Kannambra and PW59, in the circumstances, was taken to that place. After they reached there, the well water was pumped out by the fire force personnel. PW35 is an official from the Fire Force Department. PW35 confirmed that, MO4 mobile phone was recovered from the above said well. The statement of PW59 leading to the recovery of the said mobile phone is stated in Ext.P59, the mahazar for the recovery. Besides PW61, PW53 also is a signatory to that mahazar. MO4 was duly identified as the phone in the possession of the deceased by PWs 5 and 43, his wife and his father.

At the time of arrest of the second accused, he was in possession of the registration certificate of the car belonged to the deceased and a few other belongings of the deceased. The photocopy of the R.C.Book as well as other articles in his possession were seized under Ext.P57 mahazar. On the basis of the statement of the second accused, the syringe said to have been used to inject cyanide into the body of the deceased was also recovered. PW61 stated that upon questioning, the second accused gave a statement that the syringe was thrown away at Kokkottupadom, Elanad. Based on the said statement, PW61 took the second accused to that place and recovered the syringe as traced out by the second accused. Ext.P8 is the mahazar and the same is attested by PW27, an independent witness from the locality. MO7 is the syringe. It was subjected to chemical examination. Ext.P90 is the report of chemical analysis. The report reveals that the pale yellowish liquid contained in the syringe was sodium cyanide, which is a highly toxic substance.

PW61 deposed that on the basis of the statement of the second accused, MO2 bed-sheet, MO3 flex sheet and MO18 plastic sheet removed from the car of the deceased were recovered from near Nadupuni Road near Pollachi. Ext.P11 is the seizure mahazar to which PW29 subscribed as a witness. On the basis of the further statement of the second accused, PW61 recovered MO1 thorthu at 12.00 noon on 17.12.2012. The statement of the second accused was that the thorthu found in the vehicle was abandoned near the comfort station near Gandhi Park at Muthannamkulm. The said statement led to the recovery of MO1. Ext.P9 is the mahazar for the recovery to which PW28 is a witness. MO1 thorthu and MO2 bed-sheet were identified by PW5, wife of the deceased, as the objects with the deceased while leaving home for Ooty.

PW61 deposed that on 01.04.2013, he had arrested the first accused, and while in custody, the first accused informed PW61 that he kept a few movables in a cover on the top of the wall of the bedroom of his house and that he can get the same if he is taken to that place, and on the basis of the said information, certain belongings of the deceased held by the first accused were discovered and seized. Ext.P83 is the relevant portion of the information, on the basis of which the above movables were discovered and seized. The movables of the deceased which were discovered are MO19 purse, MO20 Voters ID, MO21 conductors license, MO22 ID Card, MO23 series visiting cards, MO44 black dhothi and MO35 photograph of the deceased. All the aforesaid movables were identified as that of the deceased by PW5, the wife of the deceased and PW43, the father of the deceased.

The fact that the evidence tendered by PW59 discloses the complicity of the first accused in the crime is not in dispute. In this context, it is relevant to mention that the accused who were convicted in the case, other than the first accused, challenged the decision of the Court of Session before this Court in Criminal Appeal Nos.507 of 2020 and connected cases and in terms of the judgment rendered on 20.10.2023, a bench consisting of one of us, affirmed the conviction of accused 2, 3 and 5 placing reliance on the evidence tendered by PW59, holding that the same has been sufficiently corroborated by the other evidence let in by the prosecution, insofar as the said accused are concerned.

Be that as it may, let us now consider the question whether the evidence let in by PW59 is sufficiently corroborated by other evidence, insofar as it relates to the first accused. Even though the fact that the death was a homicide has not been seriously challenged by the first accused, the evidence tendered by PW40, the doctor who conducted the autopsy on the body of the deceased that the death was due to the incised penetrating wound sustained to the neck of the deceased and that the said injury could be inflicted by MO8 knife, corroborates the evidence tendered by PW59. Similarly, the evidence tendered by PW5, the wife of the deceased and PW43, the father of the deceased that the deceased received a call requiring his car for a trip to Ooty at about 7 p.m. on the date of occurrence and that the deceased had undertaken the said trip in the evening hours of 06.12.2012 and further that he informed them that he cancelled the trip midway, also corroborates the evidence tendered by PW59. Similarly, the evidence tendered by PWs 2, 4, 6 and 9 that the second accused was in and around Chelakkara during the evening hours of the date of occurrence and made a call to someone from the coin phone kept in the shop of PW6 and from the mobile phone of PW9, corroborates the evidence tendered by PW59. Similarly, the evidence tendered by PW7 that the second accused was found in the Tavera car of the deceased at about 9 p.m. on 06.12.2012 corroborates the version in the evidence given by PW59 that the second accused fetched the Taxi Car of the deceased and came to Elanad. Likewise, the evidence tendered by PW61 that the Tavera car of the deceased was discovered based on the information furnished by PW59; that MO8 knife was discovered based on the information furnished by the second accused; that MO4 mobile phone of the deceased was discovered based on the information furnished by PW59; that the photocopy of the R.C.Book and other articles of the Tavera car belonging to the deceased were discovered based on the information furnished by the second accused; that MO7 Syringe containing Sodium Cyanide was discovered based on the information furnished by the second accused; that MO2 bed-sheet, MO3 flex sheet and MO18 plastic sheet held by the deceased were discovered based on the information furnished by the second accused and that MO1 thorthu of the deceased was discovered based on the information furnished by the second accused corroborate the evidence tendered by PW59. Inasmuch as the independent evidence let in by the prosecution corroborates, substantially, the evidence tendered by PW59 as against accused 2, 3 and 5 who are found to be guilty not only by the Court of Session but also by this Court in the appeal preferred by them, we do not find any reason at all, to reject the evidence tendered by PW59, insofar as it relates to the complicity of the first accused in the crime and as such, the same could be certainly relied on to hold that the guilt of the first accused is also established beyond reasonable doubt. The said conclusion of ours is reinforced by the evidence tendered by PW61 that it is based on the information furnished by the first accused, MOs 19, 20, 21, 22, 23, 44 and 35 were discovered and seized from a place where the first accused concealed the same in his house. There is no satisfactory explanation from the first accused as to how the said movables of the deceased happened to be in the house of the first accused. The conclusion aforesaid is also fortified by the fact that the first accused had absconded from the locality for a considerably long time, and the said conduct of the first accused is relevant under Section 8 of the Indian Evidence Act.

Let us now consider the arguments advanced by the learned counsel for the first accused. One of the main arguments advanced by the learned counsel for the first accused was that the case of the prosecution that the first accused had with him a mobile phone at the time of his arrest and the same was seized in terms of Ext.P21 mahazar, is utterly false. According to the learned counsel, had the first accused possessed any mobile phone at the time of his arrest, the same would have certainly reflected in Ext.D8 inspection memo prepared at the time of the arrest. It was pointed out that PW61, the investigating officer also admitted in cross-examination that the fact that a mobile phone was carried by the first accused is not shown in the inspection memo. It was also argued by the learned counsel that even though call records of the mobile phone number 8606304606 were produced to prove the calls allegedly made by the first accused, it was not established that the above phone number was one used by the first accused. On the other hand, it was argued by the learned counsel that the evidence let in by the prosecution itself will show that the said mobile phone number does not belong to the first accused and it belongs to the witness examined on the side of the prosecution as PW55. It was argued by the learned counsel that the various calls made from the said phone number to the other accused in the case is one of the circumstances relied on by the trial court to establish the complicity of the first accused in the crime and therefore, the fact that no mobile phone was seized from him at the time of his arrest and that he has no connection, whatsoever, with the phone number 8606304606, creates a serious doubt as to the involvement of the first accused in the crime and that the first accused, in the circumstances, is to be extended the benefit of that doubt. It is unnecessary, according to us, to consider the said argument, as it is found that the evidence tendered by PW59 as regards the involvement of the first accused, is sufficiently corroborated by other evidence let in by the prosecution, and even if it is found that the first accused has not made any calls to other accused and even if it is found that the first accused has not received any call from the other accused on the date of occurrence, we do not think that the reliability of the evidence already available on record will be diluted in any manner whatsoever.

Another argument advanced  by  the  learned counsel for the first accused is that the evidence tendered by PW61 as regards the discovery of MOs 19, 20, 21, 22, 23, 44 and 35 is not admissible in evidence as the records indicate that the said movables have been seized on a search conducted in the residential house of the first accused and the said search, evidently, is not one conducted in compliance of the provisions contained in Section 100 of the Code. We do not find any force in this argument as well. True, what is produced in court in the place of a mahazar, which is usually prepared while effecting seizure of any movables discovered based on disclosures made by the accused, is a search list. Ext.P61 is the search list. The learned Public Prosecutor is unable to explain as to why a search list was prepared instead of a mahazar as a contemporaneous document, evidencing discovery and seizure of movables based on the information furnished by the investigating officer. Be that as it may, as indicated in paragraph 21 above, as the movables aforesaid have been discovered and seized based on information, according to us, even if a contemporaneous document in the form of a seizure mahazar is not available, evidence tendered by the investigating officer in this regard cannot be rejected, if the same is found acceptable and believable, for what is substantive evidence is the disclosure statement deposed to by the investigating officer, namely PW61 in court and not what he had extracted in the seizure mahazar.

Another argument advanced by the learned counsel for the first accused is that there is no scientific evidence to connect the first accused with the crime. Merely for the reason that there is no scientific evidence to connect the first accused with the crime, it cannot be said that the first accused is not involved, especially when satisfactory evidence has been let in by the prosecution to prove his complicity in the crime.

In the light of the discussion aforesaid, we do not find any merit in the appeal and the same is therefore, dismissed.