Ranganna vs State Of Kerala

P.B.Suresh Kumar, J.

The above appeals arise from S.C.No.583 of 2017 on the files of the Court of the Additional Sessions Judge-III, Kasaragod. Among the appeals, Crl.A.No.1530 of 2019 is preferred by the third accused and Crl.A.No.14 of 2021 is preferred by the second accused in the case.

The victim in the case is one Mansoor Ali. His body was found in a deserted well at a place called Kallakkatta at 6 p.m. on 25.01.2017. On getting information about the same, police made arrangements to lift the body with the help of the Fire Force, and on lifting the body, on being unsure whether he was alive, the body was moved to the local Community Health Centre and he was found dead on examination there. A case was registered initially by the police under Section 174 of the Code of Criminal Procedure (the Code) after recording the statement of one Muhammed Zakkariya. Later, having found that the death was a homicide, the case was transferred to the jurisdictional police and investigated. The investigation revealed that the victim was murdered by accused 1 and 2. It was also revealed that the third accused harboured and screened the offenders. Accordingly, final report was filed alleging commission of offences punishable under Sections 302, 397, 212 and 213 of the Indian Penal Code (IPC).

The accusation in the case is that the second accused contacted the deceased who was engaged in the business of purchase and sale of gold ornaments under the pretence that second accused intends to sell gold ornaments to deceased and thereby caused the deceased to come to the place called 'Bayarpadavu'. When the deceased reached Bayarpadavu at about 12.50 p.m. on 25.01.2017, accused 1 and 2 took him to Kallakkatta in the vehicle of the first accused bearing registration No.KL-14-D-5524 and at about 1.30 p.m., they caused his death by hitting him on his head using the metallic leaf plates carried by them and robbed thereupon, a sum of Rs.2,40,000/- carried by him and also his other belongings and thereby committed the offences punishable under Sections 302 and 397 IPC. It is also the accusation in the case that later, with a view to screen the second accused from punishment, the third accused concealed a part of the robbed amount and the mobile phone of the deceased, and thereby committed the offences punishable under Sections 212 and 213 of IPC.

On the accused being committed to trial, the Court of Session framed charges against them, to which they pleaded not guilty. Thereafter, when the case was scheduled for trial, the first accused absconded. Since the presence of the first accused could not be secured, accused 2 and 3 were tried. Altogether 44 witnesses were examined on the side of the prosecution as PW1 to 44 and 68 documents have been proved through the witnesses. Exts.P1 to P68 are the documents proved by the prosecution. MOs.1 to 70 are the material objects in the case. Thereupon, the Court of Session, after complying with the procedural requirements, found on a consideration of the materials before it that the second accused is guilty of the offences for which he was charged. Accordingly, the second accused was convicted for offences punishable under sections 302 and 397 IPC and sentenced him to undergo imprisonment for life for the offence punishable under Section 302 IPC and imprisonment for a period of seven years for the offence punishable under Section 397 IPC. Similarly it was found that third accused is guilty of offence punishable under Sections 212 and 213 IPC. He was accordingly convicted for the said offences and sentenced to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 212 IPC and rigorous imprisonment for a period of three years for the offence punishable under Section 213 IPC. The accused are aggrieved by their conviction and sentence.

It is seen that in terms of the interim order passed by this Court on 31.12.2019, the sentence imposed on the third accused was suspended by this Court. The learned Public Prosecutor, on instructions, submitted that the third accused was enlarged on bail pursuant to the said order.

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

The  essence  of  the  elaborate  arguments advanced by the learned counsel for the second accused was that the circumstances proved in the case do not establish the guilt of the second accused. The learned counsel for the third accused also contended persuasively that sufficient evidence to hold that the third accused is guilty of the offences punishable under Sections 212 and 213 IPC has not been let in by the prosecution. Per contra, the learned Public Prosecutor supported the impugned judgment pointing out that the evidence let in, in the case would prove beyond doubt, the guilt of the accused.

The point that falls for consideration is whether the conviction of accused 2 and 3 and the sentence passed against them are sustainable in law.

Before proceeding to consider the question formulated for decision, it is necessary to ensure that the case on hand is a case of homicide. PW24 is the doctor who conducted autopsy of the body of the deceased and issued Ext.P19 post-mortem certificate. It was opined by PW24 that the victim died of aspiration of blood into the air passages following blunt violence sustained on the head. The following were the ante-mortem injuries noted by PW24 on the body of the deceased at the time of autopsy:

“1. Lacerated wound 3.2x0.7cm, obliquely placed on the right side of forehead, the inner lower end being at the inner end of right eye brow.

Lacerated wound 3.5x0.5cm, oblique, on the right side of face, 1.5cm away from right eye.

Lacerated wound 3x0.7cm oblique, on the right side of head, 5.5cm above the right eyebrow.

Lacerated wound 3.5x1cm on the head, 2cm to the right of inj.no.3.

Laceration, stellate in shape, 9x7cm on the right side of top of head, 9cm above the right ear.

Lacerated wound 3.5x1cm, oblique, 2cm inner to inj.no.5.

Lacerated wound 11.5x1cm oblique, on the front of head, the front right end being 9cm above the inner end of right eyebrow.

Lacerated wound 5.5x1.5cm, 2cm to the left of the front end of inj.no.7.

Lacerated wound 5x1cm, oblique 2cm below inj.no.8.

Lacerated wound roughly stellate in shape,7x5cm, 2cm above the back end of inj.no.7.

Lacerated wound 4x1cm just behind inj.10.

Lacerated wound 5x1cm parallel to inj.no.11 and 2.5cm to the left of it.

Lacerated wound 6x1cm horizontal on the left side of back of head, 4cm to the left of occiput.

Lacerated wound 5x1cm oblique on the left side of back of head, 3cm below inj. No.13.

Lacerated wound 4x1cm oblique, over the occiput.

Lacerated wound 5x1cm oblique, 2.5cm above the right ear.

Lacerated wound 4.5x1.5cm on the left side of head, 5cm above the eye brow.

Underneath injuries 1 to 17, the whole scalp was found contused. Skull showed a sutural fracture involving the left half of the coronal suture. A fissured fracture was seen starting from the sutural fracture and running through the left parietal bone to reach the lambdoid suture. A small fissured fracture started from the middle part of the fissured fracture in the parietal bone and terminated in the sagittal suture. Floor of anterior cranial fossa was fragmented on both sides with aspiration of fluid blood in to the air passages. Brain showed bilateral subdural and subarachnoid bleeding.

Superficial laceration 1.5x0.5cm just above the outer end of left eye brow.

Lacerated wound 2.5x2cm on the left cheek, 2.5cm below the eye.

Superficial laceration 1.5x1cm on the right side of chin.

Graze 7x2cm on the right side of back of chest, 8cm below the armpit.

Abrasion 1x0.7cm on the left side of front of neck, 4cm to the left of adam's apple.

Two small abrasions 1.5cm apart, on the neck 1.5cm above inj.no.22.

Contusion 3x0.5cm on the front of neck, across the midline, 1cm below the adam's apple.

Abrasion 1x0.4cm on the angle of jaw on the right side.

Underneath injuries 22 to 25, the subcutaneous tissues on the neck were normal. Right thyrohyoid muscle showed a contusion, 3x2cm; another contusion, 2.5x1cm, was seen in the right sternohyoid nuscle; other muscles, blood vessels, cartilages and hyoid bone were intact. Tip of tongue showed multiple small contusions on dissection(neck dissection was done under a bloodless field).

Abrasion 0.5x0.3cm on the chin, 3cm below the right corner of mouth.

Multiple small abrasions on the nose.

Multiple small abrasions on the back of left elbow.

Contusion 4x2cm on the back of left wrist.

Contusion involving the whole of the back of left palm.

Contusion 6x5cm on the back of right wrist.

Contusion 5.5x4cm on the back of right palm.

Abrasion 0.8x0.6cm on the inner aspect of left leg, at its middle. The muscles underneath were contused over an area 16x10cm.

(all the injuries were fresh injuries).”

It was also opined by PW24 in his evidence that among the said injuries, Injuries 1 to 17 found on the head could be caused by beating with heavy blunt weapons like MO14 series metallic leaf plates; that Injuries 22 to 25 are injuries that could be caused in an attempt to throttle by hand and that Injuries 29 to 32 are defence injuries likely to be caused while warding off the assault by the victim. It was also opined by PW24 that Injuries 29 and 32 also could be caused with MO14 series metallic leaf plates. It was further opined by PW24 that the fatal injury is the combined effect of injuries 1 to 17 found on different parts of the head and they are sufficient in the ordinary course of nature to cause death. PW24 has not been seriously cross-examined on the aforesaid evidence tendered by him. In the light of the evidence tendered by PW24, it can certainly be held that the case on hand is a case of homicide.

It is seen that there is no direct evidence to prove the occurrence alleged by the prosecution. The attempt of the prosecution, in the circumstances, was to establish the guilt of accused 1 and 2 through circumstantial evidence. Inasmuch as the case is a case on circumstantial evidence, it is necessary to keep in mind the principles to be followed in arriving at a finding as to the guilt of the accused. The principles are:

(1) that the circumstances from which the conclusion of guilt is drawn are fully established,

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

(3) that the circumstances are of a conclusive nature and tendency,

(4) that they should exclude every possible hypothesis except that the accused is guilty, and

(5) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

Keeping in mind the principles aforesaid, let us now consider the question whether the circumstances proved in the case would establish the guilt of the accused.

PW1 is the wife of the deceased. PW1 deposed that the deceased was engaged in the business of purchase and sale of gold ornaments; that he left from the house to Bayarpadavu on 25.01.2017 at about 10.30 a.m. to purchase gold ornaments and that he did not return. It was also deposed by PW1 that her husband was using mobile number 9567407759. PW1 identified MO1 black bag as the bag and MO2 as the digital scale carried by her husband in MO1 bag when he left from his house on 25.01.2017. PW1 deposed that her husband carried currency notes of Rs.2000 denomination also while leaving the house on that day amounting to Rs.5.5 lakhs. PW1 also identified MO9 series currency notes as part of the currency notes carried by her husband while he left the house on 25.01.2017.

PW5 is the conductor of a stage carriage operating on the route Uppala-Bayar-Sajingala. PW5 deposed that he was on duty on 25.01.2017. PW5 identified Ext.P2, after verifying the same, as the bus ticket issued by PW5 to a passenger who travelled on that day in the stage carriage at 1.30 p.m. on 25.01.2017. PW17 was a sales man attached to Mother Gold Jewellery, Uppala. PW17 deposed that on 26.01.2017, the second accused came to his shop and purchased MOs 20 to 22 gold ornaments as per Ext.P9 bill. It was also deposed by him that it was he who prepared Ext.P9 bill while effecting the sale of the gold ornaments. It was further deposed by PW17 that the phone number of the accused was entered in Ext.P9 bill by him as 9633053158, on the second accused furnishing the said information to him. PW23 is a person who is running a hotel at Bayarpadavu in the name and style “Lakshmi Ravalnath”. PW23 deposed that at about 12 noon on 25.01.2017, accused 1 and 2 came to his hotel and had tea from there.

PW41 was the Nodal Officer of the mobile service provider Bharati Airtel Ltd. PW41 deposed that pursuant to the requisition received from the District Police Chief, Kasaragod, he handed over call details of mobile numbers 9633053158 and 9567407759 for the period from 23.01.2017 to 25.01.2017. Ext.P40 is the certificate issued by PW41 on behalf of the service provider in terms of Section 65B of the Indian Evidence Act. PW41 identified Ext.P41 as the prepaid enrolment form pertaining to mobile number 9633053158 and the same is one submitted by Susheel Kiran Rai. Ext.P42 is the call records pertaining to mobile number 9633053158. It was also deposed by PW41 that as per Ext.P42, there was a call from the number 9633053158 to 9567407759 for a duration of 101 seconds on 23.01.2017 at 11.10.55 hours. Ext.P42(a) is the relevant entry pertaining to the said call in Ext.P42. Similarly, it was deposed by PW41 that there was another call from the number 9567407759 to 9633053158 for a duration of 37 seconds on the same day, at 12.00.53 hours. Ext.P42(b) is the relevant entry pertaining to the said incoming call in Ext.P42. Similarly, it was deposed by PW41 that on the same day at about 12.05.58 hours, there was yet another call from the number 9567407759 to 9633053158 for a duration of 23 seconds. Ext.P42(c) is the relevant entry pertaining to the said call in Ext.P42. Similarly, it was deposed by PW41 that on the same day at about 12.20.19 hours, there was yet another call from 9633053158 to 9567407759 for a duration of 39 seconds. Ext.P42(d) is the relevant entry pertaining to the said call in Ext.P42. Similarly, it was deposed by PW41 that there was a call from 9567407759 to 9633053158 for a duration of 79 seconds on 24.01.2017 at about 12.53.31 hours. Ext.P42(e) is the relevant entry pertaining to the said call in Ext.P42. Similarly, it was deposed by PW41 that there was a call from 9567407759 to 9633053158 for a duration of 49 seconds on 25.01.2017 at about 10.16.14 hours. Ext.P42(f) is the relevant entry pertaining to the said call in Ext.P42. Similarly, it was deposed by PW41 that on the same day at about 10.42.45 hours, there was another call from 9567407759 to 9633053158 for a duration of 51 seconds. Ext.P42(g) is the relevant entry pertaining to the said call in Ext.P42. Similarly, it was deposed by PW41 that on the same day at about 11.24.13 hours, there was another call from 9567407759 to 9633053158 for a duration of 31 seconds. Ext.P42(h) is the relevant entry pertaining to the said call in Ext.P42. Similarly, it was deposed by PW41 that on the same day at about 11.25.02 hours, there was another incoming call from 9567407759 to 9633053158 for a duration of 61 seconds. Ext.P42(i) is the relevant entry pertaining to the said call in Ext.P42. PW41 also deposed that Ext.P43 is the prepaid enrolment form pertaining to mobile number 9567407759 and the same was one submitted by Mansoor Ali. Ext.P45 is the call records pertaining to the said mobile phone. There are corresponding entries as referred to in Ext.P42 call list, in Ext.P45 call list also.

PW43 was the police officer who conducted the inquest of the body of the deceased. He identified Ext.P2 as the bus ticket seized from the body of the deceased at the time of inquest. PW44 was the police officer who conducted the investigation in the case. PW44 deposed, among others, that the second accused was taken into custody on 30.01.2017 and after interrogation, he was arrested at 7.15 p.m. on the said day. It was deposed by PW44 that on his arrest, a visiting card containing the mobile number of the deceased was found among others in the pocket of the pants worn by the second accused and the same was seized as per Ext.P16 mahazar. PW44 identified MO33 as the visiting card of the deceased seized from the second accused. It was also deposed by PW44 that during interrogation pursuant to the arrest, it was disclosed by the second accused that he has dropped a few metallic leaf plates in a river at Belloor and when the second accused was taken to that place as led by him on 31.01.2017, the second accused has taken out from a dried portion of the river MO14 series metallic leaf plates and they were seized as per Ext.P12 mahazar. Ext.P12(a) is the disclosure which led to the recovery of MO14 series metallic leaf plates. It was also deposed by PW44 that the second accused has also disclosed during interrogation after his arrest that he has kept a few gold ornaments in his house and when the second accused was taken to his house as led by him, he took out from the drawer of an iron shelf, a plastic cover containing three jewel boxes and they were seized as per Ext.P10 mahazar. PW44 identified MO19 series as the three jewel boxes and MOs 20 to 22 as the jewellery kept therein which were seized as per the said mahazar. It was also deposed by PW44 that a bill of Mother Gold Jewellery, Uppala kept in the cover along with the jewel boxes were also seized as per the said mahazar and he identified Ext.P9 as the said bill. Similarly, a shirt and a pant of the second accused as found from the house were also seized as per the said mahazar and PW44 identified MO25 as the shirt and MO26 as the pant seized from the house as per Ext.P10 mahazar. Ext.P10(a) is the disclosure of the second accused which led to the recovery of the aforesaid material objects.

It was also deposed by PW44 that later, when the second accused was interrogated after obtaining his custody from the court, it was disclosed by him that he has thrown away a black bag near the bushes at Beripadavu and that when he was taken to that place as led by him, he has taken out from the western side of the road at the place indicated by him a black bag with a few articles inside the same from the bushes and the same were seized as per Ext.P11 mahazar. PW44 identified MO57 as the spectacles, MO58 as the rexine cover of the spectacles, MO59 as the electronic calculator, MO60 as the hose plier with red handle, MO61 as the hose plier with green handle, MO62 as the key chain with keys, MO63 as the plastic cup, MO2 as the digital scale, MO64 as the cover of MO2, MO65 as a key with the inscription “Union”, MO66 as the passbook issued by Canara Bank Kasaragod Branch in the name of the deceased, MO67 as the passbook issued by North Malabar Gramin Bank issued to the deceased, MO68 series as the tax receipts in the name of the deceased, MO69 as the notice received by the deceased from the Income Tax Department, MO70 as a photograph and MO1 as the black bag within which MO2 and MOs 57 to 70 were kept. Ext.P11(a) is the disclosure which led to the recovery of the above material objects. It was also deposed by PW44 that during interrogation, the second accused disclosed to him that he entrusted a sum of Rs.52,000/- and a mobile phone to the third accused and when the second accused was taken to the premises of the third accused as required by the second accused, the third accused took out from a place behind a picture kept in the premises, a mobile phone and a sum of Rs.52,000/- and the same were seized as per Ext.P14 mahazar. PW44 identified MO9 series as the currency notes and MO30 as the mobile phone recovered as per Ext.P14 mahazar. Ext.P14(a) is the disclosure which led to the discovery of the currency notes and mobile phone.

PW14 is the witness to Exts.P10 and P11 mahazars, PW15 is the witness to Ext.P12 seizure mahazar, PW18 is the witness to Ext.P14 mahazar, PW20 is the witness to Ext.P16 mahazar and all of them corroborated the evidence tendered by PW44 as regards the recovery of the various objects as per the said mahazars.

Ext.P65 is the forwarding note submitted by the investigating officer for the forensic examination of the various material objects seized during the course of the investigation and Ext.P67 is the report issued by the Regional Forensic Science Laboratory on the requests made by the investigating officer in Ext.P65 forwarding note. Item No.24 in Ext.P67 report is MO25 shirt and it is reported therein that it contained blood though its origin and group could not be identified. Similarly, item No.13 in Ext.P67 report is MO14 series metallic leaf plates and it is reported therein that it contained human blood.

Even though the mobile number 9633053158 is one allotted to one Susheel Kiran Rai, it has come out from the evidence of PW17, the sales man that it was the mobile phone which was used by the second accused. If that be so, from the evidence discussed above, it can be safely concluded that the following circumstances have been established beyond reasonable doubt by the prosecution:

(i) that the deceased was using mobile number 9567407759 and the second accused was using the mobile number 9633053158 at the time of the occurrence;

(ii) that there were conversations between the deceased and the second accused on 23.01.2017, 24.01.2017 and 25.01.2017. The second accused has not offered any explanation to justify the conversations he had with the deceased;

(iii) that the deceased left from his house to Bayarpadavu on 25.01.2017 at about 10.30 a.m. to purchase gold ornaments and that he did not return;

(iv) that the deceased carried with him MO1 black bag, MO2 digital scale and currency notes to purchase gold when he left from his house on 25.01.2017;

(v) that at about 12 noon on 25.01.2017, the second accused reached Bayarpadavu;

(vi) that the deceased travelled from Uppala to Bayarpadavu on 25.01.2017 in the stage carriage and reached Bayarpadavu at about 1:30 p.m. ;

(vii) that the second accused entrusted a portion of the amount carried by the deceased to the third accused on 25.01.2017 prior to the arrest of the second accused on 30.01.2017;

(viii) that MO33 visiting card of the deceased was seized from the second accused on his arrest on 30.01.2017. There is no explanation from the second accused as to how he happened to be in possession of the said card;

(ix) that MO14 series metallic plates with which it is possible to cause the injuries suffered by the deceased were recovered based on the information furnished by the second accused and the same contained human blood. There is no explanation from the second accused as to how he came to know about the place where MO14 series metallic plates were concealed;

(x) that on 26.01.2017, the second accused purchased gold ornaments worth Rs.62,000/-. There is no explanation from the second accused as to the source of money with which he purchased gold ornaments on 26.01.2017;

(xi) that MO1 black bag and MO2 digital scale belonging to the deceased were recovered based on the information furnished by the second accused. There is no explanation from the second accused as to how he came to know about the place where MO1 black bag and MO2 digital scale were concealed; and

(xii) that MO25 shirt of the second accused seized from the house of the second accused contained blood, even though its origin and group could not be identified. There is no explanation from the second accused as to the source of the blood stain contained in MO25 shirt.

The  pointed  question  is  as  to  whether  the  circumstances aforesaid would establish the guilt of the second accused beyond reasonable doubt.

Illustration (a) to Section 114 of the Indian Evidence Act provides that a court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or he has received the goods knowing them to be stolen, unless he can account for his possession. It has come out that MO1 bag and MO2 digital scale recovered based on the information furnished by the second accused, are personal belongings of the deceased. The occurrence in the case is one that took place on 25.01.2017. The second accused was arrested on 30.01.2017 and the personal belongings of the deceased as also a sum of Rs.52,000/- were recovered based on the information furnished by the second accused. Of course, a doubt would arise as to whether it was possible at all for PW1 to identify that MO9 series currency notes were part of the currency notes carried by the deceased when he left his house on 25.01.2017. In the absence of any explanation from the second accused as to the source of the money recovered from the premises of the third accused, according to us, it can be taken that the money recovered from the premises of the third accused based on the information furnished by the second accused, is part of the money stolen by the second accused from the deceased. In other words, it is reasonable to presume that the second accused committed theft of MO1 bag, MO2 digital scale and a portion of the cash carried by the deceased when he left from his house on 25.01.2017 for Bayarpadavu.

The finding aforesaid takes us to the moot question whether, having regard to the facts of the case, the presumption should be extended to the perpetration of the offence of the robbery or murder or both. On an elaborate consideration of the various judgments of the Apex Court on the point, the Division Bench of this Court, of which one of us was a party, held in Bhagavat Sing v. State of Kerala, 2023(5) KLT 95 that with the aid of presumption under Section 114 of the Indian Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the offences of robbery and murder occurred at the same time that is in the course of the same transaction. In other words, if there is convincing evidence to show that robbery and murder occurred at the same time, i.e. in the course of the same transaction, the charge of murder and robbery can certainly be brought home.

Reverting to the facts, the circumstances established in the case namely that (i) the second accused entrusted a sum of Rs.52,000/- prior to his arrest to the third accused; (ii) MO33 visiting card of the deceased was seized from the second accused on his arrest on 30.01.2017; (iii) MO14 series metallic leaf plates, with which it is possible to cause the injuries suffered by the deceased, were recovered based on the information furnished by the second accused and the same contained human blood; (iv) on 26.01.2017, the second accused purchased gold ornaments worth Rs.62,000/-; and (v) MO1 black bag and MO2 digital scale belonging to the deceased recovered based on the information furnished by the second accused, would establish beyond doubt that the robbery and murder occurred at the same time in the course of the same transaction. Needless to say, the finding of the Court of Session that the second accused is guilty of the offences punishable under Sections 397 and 302 IPC, is perfectly in order.

What remains to be considered is whether the prosecution has established the guilt of the third accused beyond reasonable doubt. The only evidence against the third accused is that based on the information furnished by the second accused, a mobile phone and Rs.52,000/- were recovered from the premises of the third accused. In other words, what is established in the case is that the third accused permitted the second accused to keep certain amounts with him in his premises. The third accused does not dispute the said fact when he was questioned in terms of the provisions contained in Section 313 of the Code. There is nothing on record to indicate that the third accused was aware of the fact that the cash entrusted by the second accused was stolen from the deceased by the second accused. In the circumstances, according to us, the conviction of the third accused under Sections 212 and 213 of IPC is liable to be set aside.

In the result, Crl.A.No.14 of 2021 is dismissed and Crl.A.No.1530 of 2019 is allowed acquitting the third accused of the charges levelled against him.