Decided on January 22,2003

Soman, S/O. Pullarkattu Karthikeyan Appellant
State Represented By The C.I. Of Police And Public Prosecutor, High Court Of Kerala Respondents


Koshy, J. - (1.) ONE Sarojini, a divorcee aged about 50 years, who was living alone, was murdered in the night of 27.4.1991. The appellant/accused was charge sheeted alleging that he has trespassed into the house of Sarojini in the night, stolen her chain and studs and killed her and, hence, committed offences under Sections 302, 450, 461 and 380 of the Indian Penal Code. Originally he was acquitted by the Sessions Court by judgment dated 7.4.1993. The trial Judge who examined the witnesses came to the opinion that the prosecution was not able to prove the case beyond shadow of doubt, but this Court suo motu in revision, Crl.R.C.No. 60 of 1993, remanded the matter for fresh consideration. Thereafter, he was convicted under Sections 302, 450, 461 and 380 IPC by judgment dated 18.12.1999. This appeal is filed by the accused against that judgment.
(2.) THE prosecution case was correctly summarised by the Sessions Judge as follow: "Deceased Sarojini is a divorcee aged about 50 years on the date of her death on 27.4.91. She remained a divorcee for a period about 3 decades prior to her death. her brother along with his family was residing in the adjacent house. She was employed as a house -maid in the house of PW14. Deceased Sarojini was a strong willed and independent woman. She did not want to reside with her brother and sister -in -law (PW2). She was hence residing in a small makeshift hut adjacent to the house of PW2 all alone. She used to go for work in the house of PW14 and return every night to her residence. She used to have her food in the house of her employer. She would return in the night to sleep in her hut. No other person was living with her. On the night of 26.4.1991 Sarojini had come back from her place of work and had retired for the day. Her sister -in -law PW2 had seen her at about 8 p.m. and later at about 10 p.m. Initially Sarojini had asked her whether she had taken a pot from her house. PW2 answered in the affirmative and returned the pot. Later in the night PW2 had seen her getting into her house from outside probably after answering the call of nature. Next morning - 27.4.91 PW2 observed that Sarojini had not swept the court -yard of her house as usual. She felt that probably Sarojini had gone to the house of her employer earlier on that day. But when she made enquiries, she came to know that Sarojini had not reached the house of her employer also. When PW2 went to the house of Sarojini and peeped inside, she found that Sarojini was lying dead with injuries inside the hut. It was a ghastly sight and MO23 photographs with MO24 negatives can give us a picture of what it looked like when PW2 peeped in. Sarojini was lying dead with injuries inside the house. The scene bore indications to suggest that a push and pull had taken place there box which was available there had been broken upon and articles were strewn around. Deceased Sarojini was practically naked. Old newspapers and clothes were heaped on her to cover her up. Information went around. It was observed that Sarojini was not wearing any ornaments. She used to wear MO1 gold chain and MO2 series of studs. They were found missing. The broken box also suggested that some miscreant had entered the house with the intention to commit theft. The nature of injuries suggested a sexual assault also. MOs. 1 and 2 as stated earlier, are the ornaments which the deceased used to wear. She had purchased MO1 recently after giving an old ornament of her and some further amount. The purchase was made from the shop where PW6 is an employee..." Pw1, a nephew of the deceased Sarojini, went to the police station and gave Ext.P1 First Information Statement. In the above statement there was no suggestion regarding the accused. The accused was engaged in the work of road laying/repair. There is no eye witness to the incident and the prosecution tried to prove the case on the basis of circumstantial evidence. It is well settled that to prove a case on the basis of circumstantial evidence every link of the chain has to be established by the prosecution and circumstance is such that only possible hypothesis is the guilt of the accused and no other conclusion is possible. Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra laid down the conditions to be satisfied before an accused can be convicted on the basis of circumstantial evidence. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established the circumstances concerned "must or should" and not "may be" established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, that should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence 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." The circumstantial evidence in order to sustain conviction must be complete and must be incapable of explanation on any other hypothesis than that of the guilt of the accused, as held by the Supreme Court in Jaswant Singh v. State (Delhi) Administration) .
(3.) THE following circumstances are enumerated by the Sessions Judge to convict the accused: 1) Deceased Sarojini was residing alone in the house. 2) She was alive till about 10.30 p.m. on the previous night and her death had taken place by the next morning. 3) She succumbed to the injuries which are found on her person described in Ext.P3 P.M.certificate. 4) MOs. 1 and 2 gold ornaments belonging to the deceased were found missing from her person/house. 5) The data available at the seen suggested that there was an attempt to commit theft/robbery from the house of the deceased. 6) The accused was found available near the scene of occurrence at about the time when the death could have taken place. 7) The accused had absconded to Bangalore immediately after the commission of the crime. 8) MO14 button which was fund at the scene of occurrence compares favourably with the other buttons which were available in the shirt, MO4 worn by the accused immediately prior to the time when death of the deceased must have taken place. 9) After the arrest of the accused on 3.5.91, MO4 seized from his possession had one button like MO14 missing in it and MO14 was recovered form the premises. 10) There were blood -stains on MOs. 4 and 5 clothes seized from the accused after his arrest and the accused was found wearing them at about the time of occurrence. 11) After the occurrence, the accused through PW17 had pledged MOs. 1 and 2 with PW16 under Exts.P9 and P10. 12) After arrest of the accused, MOs. 4 and 5 as well as Exts. P9 and P10 were seized on the basis of confession statement given by the accused to PW20 under Section 27 of the Evidence Act. 13) MOs. 1 and 2 were seized from, the possession of PW16 by the after the arrest of the accused.";

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