Vs. State of Kerala  Insc 176 (3 April 2002)
Shah, Brijesh Kumar & D.M. Dharmadhikari Brijesh Kumar, J.
appeal arises out of judgment and order passed by the High Court of Kerala,
upholding the conviction and sentence of imprisonment for life under Section
302 IPC and 7 years rigorous imprisonment under Section 392 IPC as passed by
the II Additional Sessions Judge, Ernakulam in Sessions Case No.128 of 1996.
case is based on circumstantial evidence.
to the prosecution the deceased had been working for PW-28 at his farm and in
that connection he used to leave his house at 7.00 a.m. everyday and would return in the evening but sometimes he
stayed back at the farm. He had been residing with his younger brother PW-3 and
a younger sister, PW-7. On 28.6.1995, as usual, he left for his work at 7.00 a.m. At the time of leaving his house, PW-3 and PW-7 had
seen him putting on two gold rings and a watch. PW-28 had also noticed him
putting on the above said articles. Till mid-day he was at the farm of PW-28
and after having his lunch etc. he had left the place. At about 4.00 p.m., PW-12 had seen him at Kottapuram junction.
about 8.30 p.m. he went to the shop of PW-8 and
purchased some candles and bread from there. He then sat at a bench in front of
the shop of PW-9 who closed his shop at 9.00 p.m. whereafter deceased also left the place.
prosecution story further is that at about 9.30 p.m. while PWs 10, 12 and 13 were at their house, they heard the
deceased saying "take whatever you want, leave me alone". PW-12 is
said to have heard the voice of the appellant as well. Since the deceased did
not turn up to his work in the morning next day, PW-28 sent one of his
employees to the house of the deceased to find out the reason. This is how PW-3
the brother of the deceased came to know that his brother was missing and
started search for him but with no results. On 30.6.1995, PW-1 saw a body
floating in thodu. A report in that connection was registered and the
photograph of the dead body was published in the newspaper which PW-3 saw on
that basis he went to the Government hospital and identified the body of his
brother. He further noticed that the two gold rings and the watch which the
deceased was putting on were missing.
investigation was taken up by PW-29.
examination was also conducted which indicated drowning, as the cause of death.
No external or internal injury was found on the dead body by the doctor.
doctor further stated that superficial injury if any could not be detected due
to decomposition of the dead body. During the course of investigation, PW-29
came to know that accused had pledged a gold ring with PW-19 which led to the
arrest of the appellant on 5.7.1995 at Kottapuram toddy shop. The accused led
the police party to rubber plantation of one Jose Verghese and handed over
M.O.1 (watch) in respect of which recovery memo was prepared Ex.P-6. He also
took the police party to his house from where he produced document in token of
the pledge of M.O.II (a) (the other ring) with a private banker. Thus the other
gold ring was recovered from the shop of PW-24.
accused denied the charge and took up the defence that PW-3 namely, the brother
of the deceased and other members of the family were unhappy with him and
therefore he has been falsely implicated in the case. His case was that he was
a friend of the deceased and had helped him to marry one Sharda for which
members of their family were not agreeable. In this connection the members of
the family of the deceased had once tied up the deceased and had also given him
case depends on circumstantial evidence.
circumstances are as follows:
Deceased had left to attend to his work on 28.6.1995 at 7.00 in the morning
putting on two rings and a watch. This fact is testified by PWs 3 and 7, his
brother and sister respectively and PW-28.
deceased took candles and bread from the shop of PW-8 and at about 9.00 p.m. he was sitting in front of the shop of PW-9. He left
the place thereafter.
about 9.30 p.m. PWs 10, 12 and 13 heard the deceased saying "take whatever
you want, leave me alone". PW12 and PW-13 are said to have recognized his
voice. PW- 10, wife of PW-12 had no idea about the voice of the deceased.
PW-12 said to have stated before the Investigating Officer that he had heard
the voice of appellant also but initially he had not stated so in the Court. He
also could not say as to what was uttered by the appellant.
29.6.1995 the accused offered the rings to PW-17 in repaying the loan but he
refused to take it, ultimately he had pledged the rings with PW-19 and PW 24
which were recovered from them.
dead body was recovered on June 30, 1995
but the rings and the watch were not found on the dead body.
the arrest of the accused on 5.7.1995 watch was recovered at his instance.
another witness who has stated about it is PW15 who said that he had also heard
the shouts and he saw somebody lying who looked like the deceased and somebody
looking like the accused was standing near a culvert. His statement was
recorded by the Investigating Officer on 6.7.1995. The High Court has observed
that much reliance could not be placed upon his evidence. We feel such evidence
could not be of any help to the prosecution.
find that the evidence of the prosecution witnesses in support of the
circumstances enumerated above could not be assailed on behalf of the
appellant. The case as put forward by the appellant in defence also has no legs
to stand. It is nothing but a cock & bull story which cannot be believed.
The main question for consideration on the basis of the circumstances indicated
above is as to what offence stands made out against the appellant. There is no
doubt about the fact that the appellant was putting on the three articles as
indicated earlier before leaving for his work. PWs 10,12 and 13 had heard the
voice of the deceased saying that "you may take whatever you like, but
leave me alone". This link alone is no doubt not very strong but the other
corroborating and clinching circumstance is that soon thereafter namely at
about 1.30 p.m. next day i.e. on 29.6.1995 the appellant had possession of
those articles which he had offered to PW-17 and later pledged the rings with
PW-19 and PW-24. It is though difficult to hold that PW-12 and PW-13 had heard
the voice of accused as the evidence on the point is shaky but there is no
escape from the liability of possession of the property viz. subject-matter of
the robbery with the appellant soon thereafter.
to PW-17 appellant had offered to give him ring in the payment of loan of
Rs.50/- on 29.6.95 at 1.30
p.m. On being asked by
PW-17, the appellant is said to have given a false explanation saying that he
had won the ring in the game of cards but later changed the version again. The
appellant wanted to give him watch M.O.I which too PW-17 refused to accept. On
the same day namely 29.6.95, he pledged one ring with PW-24 and the other with
PW-19 on 1.7.95. The possession of the articles which had been duly identified
by the witnesses as belonging to the deceased were found in his possession
within less than 24 hours of the incident. It would lead to inference under
Section 114 (a) of the Evidence Act that the appellant has himself committed
the robbery , an offence punishable under Section 392 IPC.
to the statement of PWs 10, 12 and 13 deceased had been saying "take
whatever you want leave me alone", shows that he must have been under some
apprehension or threat thereof.
the conviction of the appellant under Section 302 IPC is concerned, the High
Court has placed reliance upon a decision reported in AIR 1978 S.C. 522 Baiju
versus State of Madhya Pradesh. It has been held in this case that where the
prosecution succeeds in proving beyond any doubt that the commission of the
murder and the robbery form part of one transaction and recent and unexplained
possession of stolen property by the accused- appellant, it could also be
presumed that the appellant and none else would be liable for committing the
this case, however, we find that the dead body was recovered on June 30, 1995 from a thodu. The cause of death
has been indicated by drowning. No internal or external injury was found on the
person of the deceased.
to the doctor if there were any superficial marks of injuries, they could not
be noticed due to decomposition of the dead body. In our view, it is difficult
to link the death of the deceased by drowning with the offence of robbery.
presumption of robbery has been drawn by us as against the appellant in view of
the fact that he was found in possession of looted property the next day at
about 1.30 p.m. which could be said to be soon after the incident of robbery
which may have taken place around 9.30 p.m. the previous day but thereafter
drowning of the deceased any time before his body was recovered on 30.6.95
cannot be linked with robbery. It may though be well before the body was
recovered since decomposition had set in but the fact that body does not bear
any mark of external or internal injury, the death by mere drowning does not
provide any link with the robbery and the death of the deceased. It is
difficult to guess in what manner and in what circumstances the deceased may
have drowned after the incident of robbery may have taken place. There may be
possibility of a different incident having taken place resulting in drowning of
the deceased. It is not a circumstance which may lead to irresistible inference
that the appellant and none else was responsible for drowning of the deceased.
drowning does not appear to be direct or indirect result of the incident of
robbery in which the deceased was deprived of his valuables. It cannot be said
that it is a circumstance which is wholly incompatible with the innocence of
the appellant so far charge of murder is concerned. We therefore feel that it
would not be possible to draw any inference that the murder was also committed
by the appellant.
view of the discussion held above we partly allow the appeal and set aside the
conviction and sentence of the appellant for imprisonment for life under
Section 302 IPC but dismiss the appeal in so far it relates to conviction and
sentence as awarded by the trial court and upheld by the High Court under
Section 392 IPC.
April 3, 2002.