Judgment:
P.K. Shamsuddin, J.
1. This appeal is filed by the State against the order of acquittal passed by the Court of Sessions, Kozhikode in Sessions Case No. 9 of 1986. Respondent accused was charge sheeted for offences under Sections 449, 392 and 302, I.P.C. The Court below acquitted the accused of all the offences.
2. An old and affluent lady by name Manikkam, possessed of jewels and cash, was residing in her house at Beypore amsom, Naduvattam desom. The occurrence took place in the night of 29/30th November, 1985 at about 2 a.m. On the morning of 30-11-1985, one Venu went to P.W. 1 Jayadevan, nephew of deceased and told him that Manikkam died. On receipt of this information, P.W. 1 went to Manikkam's house and found Manikkam lying dead in the Veranda. He also found a gold chain of 11/2 sovereign and two rolled gold bangles worn by deceased missing. He went to Meenchanda Police Station and gave Ext. P1 first information statement, which was recorded by P.W. 21 prepared Ext. P1(a) first (information report and registered a crime. P.W. 22, the Circle Inspector of Police took over the investigation and proceeded to the scene and held inquest over the dead body of Manikkam. Ext. P7 is the inquest report. Articles found on the dead body including wearing apparels were taken into custody and P.W. 21 sent the dead body to the Medical College for concucting autopsy. P.W. 18 the Assistant Professor of Forensic Medicine, Medical College, Kozhikode conducted autopsy and issued Ext. P8 postmortem certificate. It revealed that the death was homicidal. The accused was arrested at 11.30 a.m. on 9-12-1985 from the premises of Farook Railway Station and an Orient watch and currency notes to the tune of Rs. 45/- in the possession of the accused were taken into custody. Pursuant to the information furnished by the accused, No. 1 chain was recovered from P.W. 12, Thanu under Ext. P4 mahazar and No. 9 thorth mundu was recovered from a paramboke near Mathottam Bazzar under Ext. P6 mahazar. After completing the investigation, P.W. 22 laid final report before the Judicial Magistrate of Second Class, Kozikode, who committed the accused to stand trial before the Court of Sessions, Kozhikode for offences under Sections 449, 392 and 302, I.P.C.
3. On the accused pleading not guilty, the prosecution examined P.Ws. 1 to 12 and marked Exts. P1 to P21 and M.Os. 1 to 16. In his statement under Section 313 of Cr.P.C., the accused generally denied the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. On his behalf, D.W. 1 was examined and Ext. D1 was marked.
4. It was not disputed that Manikkam died in the night of 29/30th November, 1985 in her house as a result of strangulation. The evidence of P.W. 18 and the postmortem certificate Ext. P8 clearly establish that she died as a result of strangulation.
5. There is no direct evidence to connect the accused with the crime and the prosecution relied on circumstantial evidence. It is settled law, to convict an accused on the basis of circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused. The circumstantial evidence should not only be consistent with the guilt of the accused, but should be inconsistent with the innocence of the accused. Bearing these principles in mind, we shall examine how far the prosecution has succeeded in establishing that the accused was guilty of the offences with which he was charged.
6. P.W. 1 Jayadevan is a nephew of deceased Manikkam. He testified that at 7 a.m. on 30-11-1985, one Venu came to him and said that his aunt Manikkam was lying dead and the gold chain and bangles on her were missing. P.W. 1 proceeded to the scene of occurrence along with Venu and found the dead body of Manikkam in the veranda of the house. As he suspected that the death was homicidal, he went to the police station and gave Ext. P1(a) first information statement.
7. P.W. 2 Surendran is also a nephew of Manikkam and is residing about 40-45 metres from the house of Manikkam. He testified that P.W. 3 Kuttimalu, who is the mother of the accused, came and told him that Manikkam was missing. Thereupon, he proceeded with Kuttimalu to the house of Manikkam and opened the door and found the body of Manikkam lying in the room. He called out her name, but she did not wake up or speak. On the advice of persons who assembled there, the witness and Venu removed the body to the veranda.
8. P.W. 3 Kuttimalu is the neighbour of deceased and mother of accused. She turned hostile and refused to subscribe to her earlier version to the police. However, she deposed that Manikkam used to wear a chain on her neck and she was an affluent lady, that this was known to the accused and that though the accused made approaches to Manikkam for money, she never paid any money to him. In the course of cross examination by defence counsel, she came with a new story that on the previous day of occurrence, she heard the cry of Manikkam and on reaching Manikkam's house, she heard P.W. 5 talking to Manikkam about some money matters. She also added that an amount of Rs. 1,500/- was due from P.W. 5 to Manikkam, that quarrel between Manikkam and P.W. 5 related to that and that P.W. 5 beat Manikkam. Learned counsel for the accused placed great reliance on this part of the evidence of P.W. 3, she gave entirely a different version to the police and we have no hesitation to reject this story as one invented by P.W. 3 to help the accused who is her son.
9. P.W. 4 Devi is residing in a 'Laksham-veedu' near the scene of occurrence. She testified that she saw Manikkam on the previous day of occurrence. She heard a cry from the house of Manikkam and she rushed to the place and found P.W. 5 lying with giddiness. Manikkam was found weeping and standing by the side of P.W. 5. She went to the road and fetched some boys and they took him on a bycycle to the doctor. She also stated that Manikkam usually wore a chain on her neck. Learned counsel for the accused submitted that P.W. 4 is a dealer in illicit arrack, that such a woman would always be at the beck and call of police and that no reliance could be placed on her evidence. Apart from this suggestion, it has not been shown that P.W. 4 has any axe to grind against the accused, or any reason to give false evidence. We do not find any reason to reject her evidence merely because she is a dealer in illicit arrack. Her evidence appeared to us reliable.
10. P.W. 5 Sahadevan stated that he is the nephew of Manikkam and her mother Karthiyayani is a teacher and that after the death of the mother of Manikkam, he used to go to the house of Manikkam after his supper between 10 and 11 p.m. and sleep there and return to his house in the morning at about 5.30 a.m. He further testified that he sustained injury on his leg from the factory and there was swelling on his leg and that on the morning of 29-11-1985 while at Manikkam's house he felt giddiness. Manikkam cried aloud. Seveal persons were attracted to the place. His younger brother took him to the doctor. Therefore he did not sleep in the house of Manikkam in the night of 29-11-1985. On the next day morning he heard about the occurrence and went to Manikkam's house and found that the chain and bengles of Manikkam were missing. He also stated that M.O. 1 was like the chain worn by Manikkam. The evidence of P.W. 5 establishes that he did not sleep in the house of Manikkam in the night of 29th. We feel that (from?) the prosecution case that no other person slept in the house of Manikkam is probable. Learned counsel for the accused pointed out that the evidence of P.W. 5 and other witnesses for prosecution would show that on previous occassions, in the absence of P.W. 5 one of his brothers used to sleep there but the prosecution has not explained why on that particular night none kept company for Manikkam. P.W. 5 stated that his mother told Manikkam to ask any of the children of Manukuttan to sleep in her house. Most likely P.W. 5 and his brothers might have thought that Manikkam would have secured the help of one of Manukuttan's children, but none came and slept in Manikkam's house during that night.
11. Learned counsel also attacked the evidence of P.Ws. 4 and 5 on the ground that there are many discrepancies in their evidence. Learned counsel pointed out that according to P.W. 4, she brought boys from the road and they took P.W. 5 to the hospital on a cycle whereas according to P.W. 5, it was his brother who took him to the hospital and this discrepancy in the evidence of P.Ws. 4 and 5 renders their evidence unacceptable. On going through their evidence, we do not find any material discrepancy. P.W. 5 stated that it was another person who placed him on bycycle. On the basis of the evidence of these witnesses, there is no difficulty for us to come to the conclusion that on the night of 29th Manikkam was alone in her house.
12. We have already referred to the evidence of P.W. 3 that the accused was aware that Manikkam was an affluent lady and that he has approached Manikkam several times for financial help, but she refused to oblige him. It is the suggestion of the prosecution that being a neighbour, the absence of any male member in the house of Manikkam was in the knowledge of the accused and that he decided to make use of this opportunity, to commit robbery after doing away with her life. In this connection the evidence of P.W. 8 is pressed into service P.W. 8 stated that the accused used to help his assistant Bhaskaran at his cycle stand at Radha theatre in those days but on 29-11-1985 he did not come to the cycle stand. The accused in his statement recorded under Section 313 of the Code admitted that he used to watch cycles at the Radha Theatre. But according to the accused he went to the cycle stand on that day also. We do not find any reason to disbelieve the statement of P.W. 8 that on 29th the accused did not go to the cycle stand. This evidence is corroborated by the evidence of P.W. 9, a neighbour of the accused who stated that he saw the accused near Manikkam's house in the midnight of 29/30 November, 1985. As a matter of fact the accused admitted in his 313 statement that P.W. 9 saw hit on 29th midnight as spoken to by P.W. 9. The other connecting links in the prosecution version are furnished by the evidence of P.Ws. 7 and 11 to 14 and the recovery of M.O. 1 chain pursuant to the statement made by the accused.
13. P.W. 7 stated that he is a friend of the accused and he found the accused sleeping by his side on a Saturday as he woke up. The accused told him that he had a gold chain belonging to his, sister and asked the witness about the price gold. On the next day, he saw the accused fully drunk. When the witness enquired why he was drunk at the early hours, the accused replied that he had sufficient money and he did not, require any help from P.W. 7. He stated that the accused was a ganja addict. The evidence of this witness Was attacked by learned counsel for the accused. He submitted that on his own showing, P.W. 7 is a pimp and ganja addict and such a person is always at the beck call of the police and that therefore it is not safe to act upon his evidence. It is true that P.W. 7 is not a respectable witness, but that only shows that his evidence is to be viewed with care and caution. After carefully considering his evidence, we do not find any reason to hold that he was not speaking the truth.
14. P.W. 11 is a goldsmith by profession and was a broker of gold, during the relevant period. He was familiar with the accused. On a Saturday the accused came to him and told him that there was a chain with him for sale and showed a chain which he identified as M.O. 1 and two bangles. On examining the bangles he found that the bangles were of rolled-gold. He went along with the accused to Mohenan's Jewellery, but they did not purchase it for want of funds. Thereafter, they went to the shop of P.W. 12 Thamu. P.W. 12 weighed the chain and fixed the price at Rs. 1,990/-. He further stated that few days later police came and took him to the shop of P.W. 12 and M.O. 1 chain was taken into custody from the shop of P.W. 12.
15. The evidence of P.W. 11 is corroborated by P.Ws. 12, Band 14. P.W. 12 is one of the partners of Haseena Dye Works. He stated that he had licence to deal in gold and that on 30-11-1985 the accused and P.W. 11 came to his shop for sale of M.O. 1 chain and he purchased the chain. He further stated that as the chain appeared to be good one, he did not melt it and when the Police came along with the accused and P.W. 11 and enquired whether the accused had sold a chain, he produced M.O. 1 chain and the Police took the same into custody. P.W. 13 stated that he is a partner of Haseena Dye Works and that on 9-12-1985, the Circle Inspector of Police came along with the accused and P.W. 11 and enquired about the sale of chain by the accused and thereupon P.W. 12 took out M.O. 1 chain and produced before the Police. P.W. 14 a worker in Haseena Dye Works also deposed that he was present when the gold chain was recovered. Theevidence of P.Ws. 11 to 14 appeared to us to be quite probable.
16. It has also come out in evidence that though the Police searched for the bangles in a dust bin pointed out by the accused pursuant to the information furnished by the accused, the bangles could not be traced P.W, 15 who is an attestor to Ext. P5 Mahazar speaks to this.
17. The accused has not explained how he came into possession of the gold chain M.O. 1, which has been identified by P.W. 6 as the chain he made for Manikkam and by P.W. 5 as the chain similar to the one worn by the deceased. P.Ws. 11 and 12 also identified M.O. 1 as the gold chain brought by the accused for sale.
18. In our view, the evidence discussed above taken cumulatively would form a complete chain and in the light of the circumstances emanating from the evidence there is no escape from the conclusion that the accused alone would have committed the murder of deceased by strangulation with the intention of robbing the gold chain and also the bangles, which he mistakenly took to be gold bangles. Learned Sessions Judge has given some reasons for acquitting the accused and normally we would have been hesistant to interfere with the order of acquittal, if we would find that the reasons stated by learned Sessions Judge are reasonable or the views expressed by him are also possible or there are circumstances to create a reasonable doubt as to the guilt of the accused, but unfortunately, we are unable to find any features justifying an order of acquittal. We have already dealt with these aspects when we discussed the evidence of the prosecution witnesses. Learned Sessions Judge was not prepared to accept the evidence of P.W. 5 that he did not sleep in the house of Manikkam or his version that his mother Karthiyayani asked Manikkam to request any one of the children of Manukuttan to sleep in the house on that night. In this context, learned Sessions Judge has criticised the prosecution for non-examination of Karthiyayani and considered her non-examination fatal to the prosecution. We are unable to agree with the learned Sessions Judge that non-examination of Karthiyayani is fatal to the prosecution case, as we do not find any reasons to debelieve P.W. 5 on this aspect. Nor do we consider that the learned Sessions Judge is justified in holding that to prove illness of P.W. 5, the examination of the doctor is indispensable. The prosecution could have examined the doctor, but we do not consider that in the absence of such examination, we should discard the testimony of P.Ws. 4 and 5. Learned Sessions Judge also commended that if robbery was the motive of the culprit, he could not find out any reason for the culprit to leave many other valuable articles in the house, including cash in the box and the nosering worn by the deceased and a time piece found in the house. We are unable to agree with the learned Sessions Judge that this circumstance would in any way indicate that the culprit had no intention to commit I robbery. It has been established that the deceased was wearing a gold chain and also bangles and that they were removed. The circumstance that the accused did not attempt to rob of other valuable articles in the house after making a minute search of the house or failed to remove the notering from the body of the deceased is not sufficient to create any doubt about the intention of the culprit. It is quite probable that the bangles were removed in the hope that they were gold. The accused possibly could not find out the key for opening the box and remove the cash and jewels or he might have thought that it would be unsafe to remain in the house for a long period, lest others should notice his presence. The accused would have decided to leave the place at the earliest after robbing gold chain and bangles and did not want to take the risk of being detected. There are many other such possibilities. So long as there is clinching evidence of removal of gold chain, there is no scope for doubt about the intention of culprit to commit robbery.
19. Another suspicious circumstance pointed out by learned Sessions Judge is the removal of the dead body from the corridor in front of the bed room to the veranda. A reading of the evidence of P.W. 2 would show that when P.W. 2 and Venu removed the body of Manikkam to the veranda, they did not know that Manikkam had died. P.W. 2 stated that it was the advice of people gathered that the body was removed.
20. Yet another circumstance pointed out by the learned Sessions Judge to acquit the accused is the failure to produce the report of Fingerprint Expert. The evidence of P.W. 22 shows that there were finger prints on the time piece and those finger prints were sent by P.W. 22 for opinion. The opinion was not placed before Court, he found that it was of no use of prosecution. In the morning of 30th November, 1985, several persons entered the house and meddled with the articles. The learned Sessions Judge seems to think that to prove the statement of P.W. 9 that he went to Medical College to see his brother-in-law, who was admitted there as an in-patient and that while returning, he saw the accused in the mid-night of 29/30 of November, it is necessary to produce the Medical College records. Accused himself admitted that the statement of P.W. 9 in this regard is true. We are unable to agree with the reasoning of the learned Sessions Judge that without production of records from Medical College, the version of P.W. 9 that his brother-in-law was an in-patient in the Medical College, that he had gone to visit him and that it was while returning home, that he met the accused, cannot be acted upon.
21. No doubt the accused is entitled to the benefit of a reasonable doubt. It is not every kind of imaginary doubt that would constitute a reasonable doubt. Nor is it the doubt of a vacillating mind that would form the basis for acquittal. In our view, learned Sessions Judge has not given any cogent reasons for not acting upon the prosecution evidence.
22. The next question to be considered is for which offence the accused can be convicted. Murder of Manikkam and robbery of gold chain were established by the prosecution. Section 114(a) of Evidence Act lays down that the Court may presume that a man who is in possession of stolen goods soon after the theft is either the theif or has received the goods knowing them to be stolen, unless he can account for his possession. Dealing with the nature of presumption, the Supreme Court in Alisher v. State of Uttar Pradesh, AIR 1974 SC 1830 : (1974 Cri LJ 897) stated as follows (Para 5) :--
'The illustration makes it plain that the time factor has a material bearing and the Court must keep it in view before it can draw the presumption in accordance with the illustration. The presumption can be raised if a person is found to be in possession of stolen goods soon after the theft. If, however, a long period elapses between the date of the theft and the date on which a person is found to be in possession of the stolen articles, the Court would not be justified in drawing the presumption in accordance with the above illustration. The question as to how much period should elapse after the theft in order to rule out the presumption under illustration (a) would depend upon the nature of the stolen articles and the facts of each case. If the stolen article recovered from the accused is one which frequently changes hand, in such a case a much shorter period would be required before the Court would be entitled to draw the presumption under the above illustration. On the contrary, if the stolen article found in the possession of the accused is one which does not normally change many hands, the Court may draw the presumption under the illustration even after the lapse of a number of months. Again, if the stolen articles recovered from the possession of the accused are some rare books or painting of a great master or some idol of historical value, the Court will be well justified in drawing a presumption against the person found in possession under the above illustration even after the lapse of a period of more than one year. As against that, if the stolen goods of which the accused is found in possession comprise clothes or other articles which are easily available in the market, the Court may well decline to draw the presumption after the lapse of a much shorter time.'
In the instant case, the occurrence took place in the night of 29/30th November, 1985. The accused was absconding and he could be arrested only on 9-12-1985. Immediately after the arrest, the accused was questioned and pursuant to the information furnished by the accused, gold chain M.O. 1 was recovered from P.W. 12. It has come out in evidence that it was the accused who sold the gold chain to P.W. 12. Accused has not explained how he came into possession of the gold chain M.O. 1. From these proved facts, what is the presumption that can be drawn?
23. The Supreme Court has considered this question in Wasim Khan v. The State of Uttar Pradesh, AIR 1956 SC 400 : (1956 Cri LJ 790). The Supreme Court observed :--
'The charge framed against the appellant was for murder and robbery and the only question to be decided was whether the evidence was sufficient to support such a charge or did it merely establish offences less grave in nature. The circumstantial evidence adduced at the trial established the offences of murder and robbery against the appellant and not merely the minor offence of robbery or theft.'
In a subsequent decision in Baijur v. State of Madhya Pradesh, AIR 1978 SC 522 : (1978 Cri LJ 646), the Supreme Court followed this decision and observed (Paras 13 and 14):
'As has been held by this Court in Wasim Khan v. The State of Uttar Pradesh, 1956 SCR 191 : AIR 1956 SC 400 : (1956 Cri LJ 790), recent and can well be taken to be presumptive evidence of the charge of murder as well. A similar view has been taken in Alisher v. State of Uttar Pradesh, (1974) 4 SCC 252 : (AIR 1974 SC 1830 : (1974 Cri LJ 897).
As has been stated, the prosecution has succeeded in proving beyond any doubt that the commission of the murders and the robbery formed part of one transaction, and the recent and unexplained possession of the stolen property by the appellant justified the presumption that it was he, and no one else, who had committed the murders and the robbery. It will be recalled that the offences were committed on the night intervening January 20 and 21, 1975, and the stolen property was recovered from the house of the appellant or at his instance on January 28, 1975. The appellant was given an opportunity to explain his possession, as well as his conduct in decoying Smt. Lakhpatiya and the other persons who died at his hand, but he was unable to do so. The question whether a presumption should be drawn under illustration (a) of Section 114 of Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner of its acquisition by the owner, the nature of the evidence about its identification, the manner in which it was dealt with by the appellant, the place and the circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision. We have made a mention of the facts and circumstances bearing on these points and we have no doubt that there was ample justification for reaching the inevitable conclusion that it was the appellant and no one else who had committed the four murders and the robbery.'
A Division Bench of the Orissa High Court in Dasu Paikrani v. The State, AIR 1966 Orissa 130 : (1966 Cri LJ 683) held that recent possession of the property of the deceased by the accused is not only indicative of the fact that the appellant was either the thief or the receiver of the stolen property but also that the accused was a participator in the murder of the deceased. In our view, the unexplained possessin of MO 1 gold chain by the accused is not only indicative of the fact that he committed the theft or robbery or received the stolen property, but also that he actually committed murder for the purpose of theft and that murder and robbery formed part of the same transaction. We accordingly hold that the accused is guilty of the offence punishable Under Sections 302 and 392, IPC and we convict him thereunder.
24. The next question to be considered is the sentence to be awarded. We do not consider that this is a rarest of rare cases so as to award capital punishment. Therefore, we hold that the accused will undergo the lesser sentence of imprisonment for life, Under Section 302, IPC. We also sentence him to undergo rigorous imprisonment for the 7 years for offence Under Section 392, IPC. The sentences will run concurrently.
In the result, we set aside the order of acquittal, allow this appeal and convict the accused and sentence him as above.