Sudhi And Ors vs State Of Kerala And Ors

Vinod Chandran, J

To facilitate the crime for gain, the accused spun a web, like a spider, drawing the victim literally into the jaws of death, for the little gold she wore; her valuable possession from a life of toil, is the case set up by the prosecution.

The victim was a widow engaged in odd jobs; at the time of her death employed as a domestic help. On 09.07.2013 the lady of the house in which she was employed as a domestic help enquired with PW-10, the tenant of the deceased, for reason of the deceased having not turned up for work on that day. PW-10 who was staying in a portion of the house of the deceased called up the daughter of the deceased, PW-1 who registered a man-missing case on 10.07.2013 as Ext.P1. Later A2 was arrested from Tamil Nadu and on her confession statement regarding the body having been hidden in the septic-tank of the house in which she was staying with A1; it was recovered in a partially decomposed state. A1 was later arrested on 19.07.2013 and the offences in the FIR registered for man missing were altered incorporating Sections 302, 201 and 394 r/w 34 IPC.

The investigation revealed that A2 had been employed along with the deceased in construction work 15 years back and reconnected two days before the incident. On the promise of finding a suitable person to do the plastering work of the house of deceased, A2 lured her to the house in which she was staying along with A1, on 08.07.2013. They were seen together last, proceeding to the rented accommodation of A1 and A2 by PW-3 and PW-4 a neighbouring shop owner and resident respectively. The deceased was not seen after that and her body was recovered. Her ornaments were sold in the shop of PW-9, the proceeds of which were found in the possession of A1 on his arrest. The gold having been melted, what was recovered was an ingot. The investigation also disclosed the preparation made by the accused to dispose of the body and destroy the evidence.

The prosecution examined PW-1 to PW-34 and marked MO1 to MO22 series. The defence examined no witness and did not mark any exhibits. Both the accused were convicted and sentenced to life under Section 302, 10 years under Section 394 and 7 years under Section 201 IPC with fine of Rs.10000/-for the first two offences and Rs.5000/- for the last with appropriate default sentences. The separate appeals are filed by the accused who though not married admittedly were living together.

The learned Counsel for the 1st accused argued that the recovery of gold was in ingot form and could not have been relied on as has been held by this Court in 2013 (1) KHC SN14(DB) [Chellappan v. State of Kerala]. The jewellery could not be identified and there were three grams loss on melting which stood unexplained. PW-9 the jewellery owner though having deposed to having maintained proper accounts nothing was produced before Court and it was claimed that since no voucher was asked for, it was not issued. PW-9 hence is not a trust worthy witness. 2002 (7) SCC 317 [Ashish Batham v. State of M.P] was relied on to further assail the identification of gold ornaments. PW-1 had not disclosed the exact details of the ornaments in the FIS. The last seen together theory cannot be believed since there was a tea shop near the subject residence from where nobody was examined. The presence of A1 has not been spoken of by PW-3 and PW-4. The rope said to have been purchased from PW-5 is an article of common use which does not qualify to be a circumstance leading to the guilt of the accused. The call details produced at Exts.P47 to P49 only prove constant communication between A1 and A2 which is quite natural considering the fact that they were living together. The trial court ignored the crucial aspect of the subject house being rented out by the sister of A1 who along with her children and mother were staying in the said house. The money recovered from A1 was that he received from a property deal.

A2 also assails the last seen theory further urging that PW-3 admitted to his having access to the toilet attached to the subject house. It is revealed from the scene mahazar and the deposition of PW-3 that the subject property does not have a compound wall and anybody could have access to the septic tank. PW-3 was not certain about the date in which A2 and the deceased were seen together and the last seen theory sought to be established through him is a self serving statement raising a reasonable apprehension about his complicity in the murder thus opening a hypothesis of innocence of the accused. The last seen theory is not conclusive as has been held by the Hon'ble Supreme Court 1994 SCC (Cri) 1551 [Arjun Marik v. State of Bihar]. The arrest said to have been made in Tamil Nadu is suspicious for reason of the local police having not been involved and there being no independent witness for the various recoveries made from A2. This vitiates both the arrest and the recovery coupled with the fact that PW-25 the Sub Inspector who initiated the investigation having questioned A2 in the initial stage of investigation. This clearly demonstrate that A2 was in station. There are also discrepancies in the evidence of PWs 21,24 and 32. It is argued that there is nothing produced to establish that the phone number which had communication with the phone of the deceased was that of A2. Though elaborate call details were produced the Customer Application Form relating to the connection (SIM card) has not been produced. This is the primary evidence which ought to have been produced to establish the subscriber of the connection. No reliance can be placed on the call details as has been held in 2007 (5) SCC 730 [J. Yashoda v. K. Shobha Rani]. Both the accused also seriously assail the various recoveries made.

The Learned Special Public Prosecutor stressed on the point that the murder is one for gain and the acquaintance of A2 and PW-1 were proved by PWs 1 and 11. There is clear evidence that they met two days before and there were frequent mobile calls between them on the crucial date. The call details and the tower location pinpoint the presence of the deceased near the scene of occurrence at Ponnukkara. The last seen theory has been unequivocally established and so was the preparation made to destroy the evidence. The description of the chain (ornament worn in the neck) was very clear which was spoken of by the second daughter PW-17 and affirmed by PW-9 the jewellery owner. The loss caused on melting is very minimal and it is only the natural loss occurring on melting of gold. The learned Counsel would rely on 2014(13) SCC 493 [Mohammad Bin Beerankutti v. State of Karnataka], 1953 KHC 212 [Vijayan v. State], 1973 KHC 195 [Palan v. State], 1991 KHC 1473 [State of Kerala v. Naduveettil Viswanathan], 2020 KHC 4035 [Ansar v State of Kerala] and 2020 KHC 4476 [Sunil Kumar @ Sunil v. State Of Kerala].

PW-1 is the daughter of the deceased who was informed of her mothers disappearance by PW-10 the tenant of her mother. PW-1 identified MO1 earphone MO2 kontha and MO3 Mobile Phone of the deceased. PW-1 also described the ornaments usually worn by her mother and spoke of her mother having informed her about the visit of A2 and the promise made by her to arrange a suitable workman to plaster her house within two days. PW-10 is the tenant of the deceased with whom was made the first enquiry by the lady of the house where the deceased was a domestic help. She spoke of having last seen the deceased on 08.07.2013 when she came back from her work and at around 10.30 left the house informing her that she is going to Marathakkara. PW-10 also spoke of A2 having come to the residence two days prior to the date on which the deceased went missing. She identified A2 standing in the dock. PW-10 further stated that it was in her presence that A2 asked the deceased as to whether the ornaments she was wearing was gold or not. A2's presence was further confirmed by PW-20, a neighbour of the deceased. When the deceased was coming back from work on 06.07.2013, seeing PW-20's mother, who came from abroad that morning she tarried near their house and talked to the mother of PW-20. It was at that time A2 came and the deceased introduced her to PW-20. PW-11 another person staying in the locality of the residence of the deceased also spoke of the deceased having told her about A2's visit. Herself the deceased and A2 according to her have worked together in construction sites long time back. After A2's visit to the house of the deceased PW-11 met the deceased at the provision store where they usually meet , when the deceased told her about A2's visit.

The accused had feebly attempted to raise a contention of the delay in registration of the FIS. The deceased went missing on 08.07.2013 which was informed to PW-1 on 09.07.2013. The daughters of the deceased, PW-1 and PW-17 are living in their marital homes. PW-10 the tenant in the house of the deceased did not suspect anything when the deceased did not return on the said day since she thought the deceased would have gone to her relatives house. PW-10's husband tried to call the deceased but her mobile phone was switched off. PW-1 made inquiries and on the continued absence of her mother an FIS was registered on 10.07.2013 which delay we do not find to be significant or crucial in the circumstance. The non disclosure of A2's visit in the FIS is also not relevant since at that time, her mother was missing and there is no reason to connect it to A2's visit. There was also a contention raised that A2 was once questioned by PW-25 Sub Inspector, but admittedly before the body was discovered. PW-25 categorically stated that he was suspicious of the answers given but on the very next day files were transferred to the Circle Inspector. It was PW-32 the Circle Inspector who arrested A2 from the house in which she was residing at Dindigul along with A1. PW-32 stated that after he took up the investigation he had proceeded to Tamil Nadu with a Police party on receiving information that A2&A1 were in that State. Obviously the statement recorded from A2 would have also resulted in the Police searching for both A1 & A2. The statement obviously cannot be used and rightly the same was not part of the Case diary.

The accused very vigorously argued that the arrest and recovery said to have been made from Dindigul was illegal. We do not think there is any substance in the contention that the arrest was illegal merely for reason of the local police not having been involved and there being no independent witness. The I.O on the confession statement made by A2, at Tamil Nadu, had informed PW-25 SI who recovered the body on such information, from the subject house in which A1 and A2 were residing at Ponnukkara, Thrissur. The Civil Police Officers (CPO's) who accompanied the I.O, PWs 21, 29 and 30 specifically spoke of the arrest and recovery made of MO3 mobile belonging to the deceased from the house in which A2 was living with A1 at Dindigul (PW-21 and PW-29). The seizure mahazar at Ext.P8 shows two purses; one cream in colour and the other black and MO 13 mobile of A2 seized at the time of arrest. The arrest memo is produced as Ext.P12. A1 was also arrested, though a few days later on 19.07.2013 when an amount of Rs.55000/-, the proceeds of the sale of ornaments was recovered from his person which is evidenced by Ext.P31.

The body recovered was slightly decomposed but the same was identified by PW-2 and PW-15, both relatives of the deceased; the former her husbands nephew and the latter her nephew. As far as the identity of the body is concerned there was a DNA test conducted, the report of analysis of which is produced as Ext.P10. Ext. P10 spoke of the samples of bone and skin taken from the body of the deceased to have matched that of PW-1 and identified as that of the biological mother of PW-1. The DNA test confirms the identity of the deceased which is corroborated by PW-2 and 15 who were present at the site when the body was recovered. PW-2 and 15 also identified the kontha worn by the deceased and her mobile phone. PW-2 stated that the kontha was one purchased by him during his trip to Velankanni and he had given it to his aunt, the deceased, on his return. PW-15 further saw his aunt at the bus stop on 08.07.2013. He also identified the cloth piece (MO6) with which the face of the body was covered as a piece of the saree which the deceased was wearing in the morning when he saw her at the bus stop. The identity of the victim has been clearly established.

The Doctor who conducted the postmortem PW-23 marked and proved Ext.P11 postmortem report. Ten ante mortem injuries were noticed, which showed contusions on the right and left eye brow, back of head, bridge of nose, left side of chin, under aspect of tongue across midline and on back of right hand below the wrist. There was also a lacerated wound on the inner aspect of lower limb across midline and a pressure abrasion 18cm long, horizontal on front and sides of the neck over the thyroid cartilage. The opinion as to cause of death is stated as "due to combined effects of smothering and ligature strangulation". The death obviously was homicidal.

As far as the last seen theory is concerned, after PW-15 saw the deceased at the bus stop she was then seen by PW-3 a dealer in chicken who had a shop just adjacent to the subject house of A2 and A1. He saw the deceased going along with A2 to his house. PW-4 a neighbour also spoke of the deceased and A2 going towards their house. The accused had made a suggestion that PW-4 could not see what is happening in the house of A1 and A2. PW-4 accepted that, but, clarified that he could see the persons going towards the house while sitting on the verantha of his house and that was how he saw the deceased going along with A2 towards their house. The house of PW-4 lies on the northern boundary of the property in which the crime was committed as is evidenced from P7 sketch prepared by PW-19, Village Officer. A1 had a contention that he in any case was not seen in the locality on the said day along with the deceased. However, PW-4 had seen A1 on the crucial day going in his two wheeler towards the house. PW-3 also spoke having seen A2 riding Pillion in the two wheeler driven by A1, on the same day that is 08.07.2013.

The rented house, which is the scene of occurrence, belongs to the wife of PW-12 as has been proved by P6 Certificate of Ownership issued by the Grama Panchayat Secretary, who was examined as PW-18. PW-12 produced Ext.P3 Rent Deed, which was in the name of the sister of A1. There has been an argument raised by A1 & A2 that the sister, her two children and her mother were staying along with A1 & A2 in the house, as deposed by PW-3. PW-3, though admitted the fact, it was categorically stated that on 08.07.2013, when he went to the property to use the outside toilet, there was no sound coming out of the house; definitely unlikely in the event of children also being there. Coupled with this is the evidence of PW-30 Woman CPO, who had accompanied PW-32 I.O. to Dindigul in search of A1 & A2. The police party is said to have apprehended A2 at Dindigul and she had taken them to the rented house, in which she was staying in Dindigul, along with A1. As was noticed herein above on information supplied as to the body being hidden in the septic tank, the I.O. immediately contacted PW-25 SI to conduct a search. It is also stated by the Woman CPO that she was left in custody of A2 in the house when the I.O. went in search of A1. PW-30 Woman CPO specifically stated that in the house there was a woman and two children in addition to A2. Obviously the family of A1 was shifted prior to the incident. In this context we also notice that neither the mother or the sister was examined on the defence side. We hence reject the contention raised of there being other residents in the rented house, which is the scene of occurrence.

One other contention raised is of the postmortem report indicating the death to have occurred in a minimum of 7 days. It is the argument that the subject house did not have a compound wall and even according to PW-3, anybody could get access into the property. The contention seems to be that the body could have been hidden in the septic tank by some other person. We are of the opinion that the said contention is far-fetched especially since then the body would have to be brought to the place, dead and hidden in the septic tank; which tank, as is seen from Ext.P7 sketch prepared by the Village Officer, lies touching the residential building. The 7 days, as reported in the postmortem Certificate, tallies with the alleged date of incident being 08.07.2013 and Ext.P11 Postmortem Certificate being dated 16.07.2013, the date of recovery of the body itself.

The prosecution has adduced evidence to indicate destruction of the evidence. PW-5 is the shopkeeper, from whose shop the yellow plastic rope was purchased by A1. PW-5 identified the plastic rope to be that purchased from his shop; the rope shown to him in Court being that recovered from the body. We do not rely on this aspect, since a yellow plastic rope is an article of common use and there is no identifying mark on that shown to the witness. PW-8 is the auto driver, who identified A2 as having travelled in his autorickshaw and purchased diesel from the petrol pump of PW-7. PW-7, the owner of the petrol pump, also identified A2 and spoke of the purchase of diesel. The prosecution case is that the diesel was intended to burn the clothes of the deceased, of which only the undergarments and a piece of saree covering the face was recovered. The conduct is admissible under Section 8 of the Evidence Act. PW-6 identified A1 as the person who purchased cement from his shop and also deposed that A1 specifically spoke of the purchase intended for patchwork at his home. PW-25 had in his deposition specifically spoken of the slabs over the septic tank having been pointed with cement recently. Obviously, the pointing was done by A1 after the septic tank was prised open and then put back after hiding the body. This is a very relevant circumstance pointing to the guilt of A1 & A2.

The sale of jewellery and the recovery of gold ingot from the jewellery is another circumstance pointed out by the prosecution, which is assailed by the defence citing two decisions. Chellappan was on the specific facts coming out in the said case. True, in that case the ornaments of the deceased were recovered from the jewellery in the form of an ingot, as is the case here. The jeweller, as in this case had said that usually he enters the purchases in the books maintained by him, which were not produced. The jeweller also asserted that he melts the gold purchased immediately. However, the similarity ends there. In the cited case there was no description of ornaments available. Coupled with the want of identity of the gold ornaments, the Court specifically noticed that the ingot handed over as that melted down from the ornaments was of a purchase made nearly four years before. In the present case PW-9 is the jeweller, who purchased the gold. He spoke of the definite description of ornaments being a 'Dhruvam' chain, four bangles and a pair of earrings having weight of 40gms. and the price paid was Rs.82,000/-. It was also stated that when it was melted the gold ingot weighed 39.530gms. The loss is not significant given the fact that the ornaments were melted. The seizure was on 19.07.2013 and the ingot was marked as MO7. The seizure made on 19.07.2013 was immediate to the purchase made by the jeweller. The recovery being immediate to the purchase, it is only natural that the jeweller could identify the specific ingot, which was obtained on melting of the purchased gold ornaments. Further, the identity and quantity of the gold tallies with that spoken of by PW-1 and PW-17 daughters of the deceased. In Ashish Batham, the recoveries were held to be shrouded in suspicion and more dramatic than real to inspire confidence in the Court so as to place any reliance on the same. We do not find the recoveries herein to be vitiated.

Yet another compelling circumstance are the call details produced by PW-31 with reference to the mobile phone of the deceased. In fact, the call details with reference to the mobile connections of A1 and A2 were also produced by PW-33. Reliance was placed on J.Yashodha to contend that when primary evidence is available there cannot be secondary evidence produced before Court. We do not find any application of the said dictum in the facts of the present case. The contention of the accused is that since the Customer Application Form of A2 was not produced, the call details as available in Ext.P52 produced by PW-31 cannot be relied on. The SIM card in MO3 Mobile phone belonging to the deceased had the number 9995115687. PW-31 is the Nodal Officer of the service provider- Airtel, who produced the call details of the connection having number 9995115687. The call details were produced as Ext.P22 and the certificate under Section 65B of the Evidence Act was produced as Ext.P21. Ext.P24 is the Customer Application Form submitted by the deceased and the ID proof submitted along with the application is marked as Ext.P25. The mobile phone with SIM Card having number 9605324793 is MO13 mobile phone seized from A2 at Dindigul. Ext.P8 is the seizure mahazar by which MO 13 was seized from the possession of A1. In that circumstance the non production of the Customer Application Form by the service provider of the SIM card available in MO13 is not very significant. There is no prohibition against one person using the mobile of another and MO13 is established to have been recovered from the possession of A2.

The call details indicate that from the SIM card available in MO 13 there were frequent calls to MO 3 which had the SIM card of the deceased. On 08.07.2013 on 10.24.51 hours (P22(a)), 10.28.58 hours(Ext.P22(b)), 11.17.21 hours (P22(c)), 11.38.21 (P22(d)) and 13.16.26(P22(e)) there were incoming calls to the deceased which were having duration respectively of 121, 42, 14.19 and 21 seconds. The tower location of the mobile at the time of Exts.P22(a) &(b) was near Vijayamatha Church, Chiyaram Village and that of Exts.P22(c), (d) and (e) was at Ollur on the Ernakulam road. Exts.P22 (f) & (g) are Company-SMS to the mobile phone of the deceased at 14.3.41 hours and 18.8.48 hours which is at Ponnukkara, Thrissur where the body of the deceased was eventually found. This corroborates the theory of the prosecution.

Undisputedly the present case is one which in which the charges have been raised solely on the circumstantial evidence. The oft repeated principles of how the guilt has to be established when there is no direct evidence, is reiterated in Ashish Batham at para 6 as extracted here under:

The principles, which should guide and weigh with the courts administering criminal justice in dealing with a case based on circumstantial evidence, have been succinctly laid down as early as in 1952 and candidly reiterated time and again, but yet it has become necessary to advert to the same, once again in this case having regard to the turn of events and the manner of consideration undertaken, in this case by the courts below. In Hanumant Govind Nargundkar v. State of M.P.AIR 1952 SC 343 it has been held as follows: (AIR pp. 345-46, para 10)

"In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in R. v. Hodge168 ER 1136 where he said:

'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.'

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

These principles were needed to be restated even as late as in the decision reported in Sudama Pandey v. State of Bihar(2002) 1 SCC 679 and Subhash Chand v. State of Rajasthan(2002) 1 SCC 702.

Applying the said principles to the evidence led in the above case by the prosecution we are of the opinion that the accused have been found guilty of the offences alleged as discernible from the unbroken chain of circumstances which is consistent only with the hypothesis of their guilt and there arises no hypothesis consistence with their innocence. A2, two days prior to the incident had visited the deceased at her residence. PW-10 overheard A2 asking the deceased as to whether the ornaments she wore were of gold. PW-10 and PW- 20 saw A2 with the deceased on the 06.07.2013. PW-11 a neighbour who was also acquainted with A2 was told by the deceased about A2's visit. PW-1 daughter was also informed of A2's visit. Two days' later on 08.07.2013 the deceased left her home at around 10.30 a.m after informing PW-10. PW-15, the nephew of the deceased saw her at the bus stand where the buses to Ponnukkara stops. The call details produced by PW-31 established that there were frequent incoming calls from the mobile of A2 to that of the deceased. It can be reasonably presumed that such incoming calls directed the deceased to the house of A2. A2 was seen along with the deceased proceeding to her house by PW-3 and PW-4 both neigbours. PW-4 saw A1 on the same day going in a two wheeler to the subject house. PW-4 also later saw A2 riding pillion on A1's bike.

On 08.07.2013 there was no movement inside the subject house as has been spoken of by PW-3 which puts to peril the theory of the accused that the sister and mother of A1 along with two children were available in that house. A1 and A2 had absconded and they were eventually arrested from Tamil Nadu. A2 was arrested on 16.07.2013 on which date she disclosed the place where the body of the deceased is kept. On the same day the body was recovered from the place disclosed by A2. The body was identified to be that of the deceased and it is proved that the death was homicidal. At Dindigul in the evening MO3 mobile phone belonging to A1 was recovered under Section 27 of the Evidence Act as per her disclosure, from the house in which A2 was residing. Ext.P9 is the seizure mahazar which indicates that on recovery, the I.O had switched on the phone and called his mobile number to detect the SIM in MO3. It was specifically noticed in P9 mahazar that the SIM available in MO3 at the time of seizure in Dindigul from the house in which A2 was residing, as per her confession, was 9995115687, the number of the deceased as proved by PW-31. A1 was arrested still later on 19.07.2013 from Pollachi in Tamil Nadu from the Bus stand at early morning around 1.45 a.m. He was found in possession of Rs.55000/- the source of which though stated could not be substantiated. The jewellery was sold by A1 and A2 together as deposed by PW-9. The specific description was spoken of by PW-9 the purchaser and the daughters, PW-1 and PW-17. The chain of circumstances thus is complete, conclusively proving the guilt of the accused.

We find no reason to interfere with the conviction and sentence awarded by the trial court. We dismiss the appeals.