Chandra Babu vs State of Kerala

K.T. Thomas, J.—A money lender was smothered to death. His dead body was wrapped in a polythene sheet and was dumped into a well. His wife and children knew about it only on 2nd November 1986 after the dead body was lifted up from the well. Police charge. sheeted six persons for his murder. First accused is one of his debtors. First accused and his wife fourth accused remained absconding throughout and hence the trial as against them could not be commenced so far. Second and third accused were convicted of the offences under Sections 120B, 302 and 404 of the Indian Penal Code. Second accused also convicted of the offence u/s 201 of the I.P.C. Fifth accused was convicted only of the offence u/s 201 besides Section 120-B of the I.P.C. Sixth accused was acquitted. For he main offence of Section 302 of the I.P.C. imprisonment for life, for the offence of Section 201 of the I.P.C. rigorous imprisonment for five years and for the offence u/s 404 of the I.P.C. rigorous imprisonment for two years were awarded as sentence. No separate sentence was awarded for Section 120B of the I.P.C. These appeals have been filed by these convicted persons.

A synopsis of the case is this: Deceased Mathew alias Eappachan was doing money lending business in his village. Accused 1 and 4 had borrowed money from the deceased on different occasions which snow-balled into rupees twenty eight thousand. When deceased pressed for repayment, those debtors fell out with him. Eventually, their grouse boiled up and they conspired with their nephew (second accused) and Anr. person, (third accused) to liquidate the deceased. On 28th October 1986 evening deceased left his house to go to a nearby village (5 kms. away). When he reached near the culvert (south, of Alurumbil house on Manchankuzhy-Thambalakad road), first and second accused way-laid him and caught hold of his hands. Third accused closed his mouth and nose and smothered him to death. After removing the valuables from the dead body, those three persons removed the corpse to first accused''s house. Thereafter, all the six accused chalked out a plan to dispose of the dead body. Pursuant thereto, the corpse was wrapped with a mat and covered with a polythene sheet and the body was dumped into the well situated in Anr. property.

As the deceased did not return home, his wife and children made frantic enquiries which did not yield any useful result. On 2nd November 1986 morning P.W. 7 spotted a bundle inside the well. The bundle was taken up in the presence of the police and the dead body contained therein was later identified to be that of Eappachan.

There is no serious dispute that deceased died due to smothering. P.W. 55 Dr. Nelson, who conducted post-mortem examination on the dead body, opined that deceased had died of smothering. That doctor was not cross-examined at all. Though the doctor did not say anything about the time of death (evidently because he was not asked about it), we have no doubt from the postmortem features that deceased would have been smothered to death sometime after 6 p.m. on 28th October 1986.

There is practically no evidence against fifth accused. The only evidence against him is that he had gone to P.W. 40 and requested him to help fifth accused to dispose of the dead body of one Eappachan who died in a quarrel with first and second accused and that P.W. 40 refused to oblige fifth accused who then implored with him to keep that topic a secret. A rafter (M.O. 27) was recovered from the cattle shed of first accused on the basis of what fifth accused told the police that the rafter was kept in the said cattle shed. Learned Sessions Judge, or the strength of the aforesaid evidence, convicted him of the offence u/s 201 of the I.P.C. We cannot support the conviction since the evidence against fifth accused is too meager for arriving at a conclusion that he was involved in causing disappearance of evidence of any offence. What has turned out against fifth accused, at the most, is that he had expressed eagerness to dispose of the dead body of the deceased. We do not know whether fifth accused had done and thing further or whether he participated in the task of dumping the dead body into the well.

We shall now consider the case against second accused. Circle Inspector of Police (P.W. 61), who arrested second accused, deposed in court that he seized a "token" (which is called a pledge receipt) from second accused. Learned Sessions Judge marked it as M.O. 18. (It is advisable that the documents are marked as Exhibits and not as material objects). The receipt shows that on 30th October 1986 a gold ring was pledged with a financing company at Palai. P.W. 6 said that when second accused was interrogated, he got the information that second accused along with his uncle first accused pledged the ring with M/s K and K Finance, Palai. M.O. 5 ring was recovered from that financing company. P.Ws. 27 and 28 attached to that financing company gave evidence regarding the pledge which is supported by other documents also. P.W. 61 further deposed that a belt and a wrist watch were disinterred from the compound of second accused''s residence pursuant to the information elicited from him to the effect that "the belt and watch were buried" at the place from which they were taken. A double mundu (which belonged to the deceased) was recovered by P.W. 61 from a dry cleaning shop on the basis of information elicited from second accused that he had entrusted it along with the shirt of first accused to the dry cleaner.

There is overwhelming evidence to show that the double mundu (M.O. 2), gold ring (M.O. 5), belt (M.O. 3) and wrist watch (M.O. 6) belonged to the deceased'' and they were with him when he left his house last. The defence could not shatter the evidence of prosecution which satisfactorily established the ownership of these articles. Nor could the defence make any dent on the fortress which contains unassailable evidence that second accused was in possession of the articles at least from 20th October 1986 onwards.

Shri Ratna Singh, learned Public Prosecutor, contended that possession of those articles with second accused will create a presumption, in the absence of any explanation from him, that he had a hand in the murder of the deceased. Shri M.N. Sukumaran Nair, who did not dispute the legal position that such unexplained possession may create a presumption that the possessor is either the thief or recipient of stolen goods, contended that the presumption cannot be stretched to the farthest point that the possessor was involved in the murder also.

Presumption permitted u/s 11 of the Evidence Act is a presumption of fact and is one resting on the discretion of the court. Whatever be the factual position, court is not compelled to make any such presumption. While exercising the discretion, court has to consider the facts and circumstances of each case. Illustration (a) to Section 114 of the Evidence Act, no doubt, suggests that court may presume that a man in immediate possession of stolen properties is either the thief or recipient of stolen properties. Merely because the illustration is so worded, extent of the presumption need not end with what is suggested therein. No doubt, illustrations enumerated in the section have been drawn up from different spheres of human activities or based on human experience. Though they are not exhaustive, illustrations are merely examples of circumstances in which certain presumptions may be made. It does not inhibit the court from presuming other positions based on similar situations or circumstances. No hard and fast rule can be laid down about the extent of presumption which a court can make in a given situations, vide Kali Ram Vs. State of Himachal Pradesh, .

A Division Bench of this Court (in which one of us was a party) has observed that recent possession of the property of the deceased by the accused is not only indicative of the fact that accused was either the thief or the receiver of the stolen property but also that he was a participator in the murder of the deceased. On the facts of the said case, the Division Bench found that accused is guilty of the offences u/s 302 and 392 of the Penal Code vide State of Kerala v. Viswanathan 1991 (1) KLT S.N. 41. Supreme Court has pointed out in Baiju alias Bharosa Vs. State of Madhya Pradesh, that "the nature of the stolen article, 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 regarding the extent of presumption to be drawn".

If ornaments or things of the deceased are found in the possession of a person soon after the murder, it will be a proper presumption that possessor is responsible for death of the deceased in a case of murder for gain, or when robbery or dacoity was an integral part of the murder. In such a case, possession of valuables belonging to the murdered person would afford sufficient base for a presumption that possessor was involved in the dacoity or robbery unless he explains it differently vide Tulsiram v. State AIR 1954 S.C. But, when prosecution has no case that robbery or dacoity was committed by the accused, the mere fact that accused was found to be in possession of the articles of the deceased need not raise a presumption that he is one of the murderers.

Sir Lawrence Jenkins had the occasion to examine this question. In Emperor v. Masmatulla 17 Cal. W.N. 1077 learned Judge quoted with approval a passage from wills on "Circumstantial Evidence" to the effect that recent possession of stolen goods is indicative not merely of theft or reception of stolen goods, but of other more aggravated crime which has been connected with theft. In Queen-Empress v. Sami ILR 13 Mad. 426 it was pointed out that "in cases in which murder and robbery have been shown to form parts of one transaction" it has been held that recent and unexplained possession of the stolen property would be presumptive evidence against a prisoner on the charge of robbery as well as murder. The aforesaid ratio has been approved by the Supreme Court in Wasim Khan Vs. The State of Uttar Pradesh, .

Here prosecution has no case that murder of the deceased was for gain or that murder of the deceased was associated or preceded by robbery. The charge pertaining to the articles belonging to the deceased is that after the death of the deceased, accused had removed it from the dead body. In such case, we are not disposed to draw a presumption merely on the strength of possession of the articles belonged to the deceased that such possession is presumptive of the fact of murder also.

P.W. 61-Circle Inspector of Police deposed that second accused, during interrogation, told him that he would show the shop front which polythene sheets and country twine were purchased. On the said information, second accused was take to the shop of P.W. 22. With the help of M.O. 21 bill book (which contains a carbon copy of the bill dated 29th October 1986) prosecution has established that second accused along with Anr. person had purchased-polythene sheets and country twine. M.O. 8 is the polythene sheet used for covering the dead body. This fact when taken along with possession of a large number of articles of the deceased would take us to a reasonable conclusion, since no other explanation has been offered, that second accused had removed the articles from the dead body and he had participated in the removal of dead body from the place of occurrence.

Regarding the case of third accused, the evidence is only the following: He told P.W. 61-Circle Inspector of Police, during interrogation that "the gold chain was pledged with the Co-operative Bank at Kurumon". M.O. 4 gold chain was recovered from the said bank. The documents produced by the bank unmistakably establish that third accused had pledged the gold chain on 29th October 1986 in the said bank. There is also ''unimpeachable evidence to show that M.O. 4 gold chain belonged to the deceased and he was wearing it. Learned Counsel Contended that possession of the gold chain will only raise a presumption that it was given to him for pledging it as second accused was a member of the bank and that pledging is possible only through a member. But we must bear in mind that third accused has not adopted any such explanation in the trial court.

Learned Sessions Judge convicted third accused of offence of murder because of Anr. item of evidence which learned Sessions Judge found to be supportive of a higher presumption. When third accused was arrested, police noticed a heeled bite mark on his left index finger. Police produced him before P.W. 53 doctor, who issued Ext. P-28 certificate. Alleged cause of injury noted in Ext. P-28 is "due to the bite of Eappachan". But in cross-examination the doctor said that third accused told him like that. Learned Sessions Judge, relying on the dictum of a Full Bench decision of this Court in State v. Ammini 1987 (1) KLT 928 acted on the said evidence of P.W. 53 and the lower court concluded that third accused is guilty of murder. Learned Counsel made a vehement plea that the aforesaid evidence (the alleged statement made by third accused to P.W. 53 doctor) should not have been relied on by the trial court, since such an evidence was brought in through cross-examination alone. Learned Public Prosecutor contended that it does not matter whether evidence was adduced in chief-examination or cross-examination. If third accused had not engaged any counsel, perhaps prosecution would not have even got this chance to use such an item of evidence. We do not think that it would be fair or proper to place heavy reliance on what P.W. 53 said in cross-examination alone to make a break through as against third accused. However, the unexplained possession of M.O. 4 gold chain would lead as to the presumption that third accused would have removed it from the dead body.

Final position is this: Second accused is only liable to be convicted of the offence u/s 201 and 404 of the IPC, and the third accused can be convicted only of the offence u/s 404 of the IPC. We acquit second and third accused of the offences u/s 302 of the I.P.C., but confirm the conviction in respect of other offences. We confirm the sentence passed by the learned Sessions Judge on the offences u/s 201 of the I.P.C. (rigorous imprisonment for five years) and Section 404 of the I.P.C. (rigorous imprisonment for two years). Sentence passed on second accused for the two counts would run concurrently. However, we set aside the conviction and sentence of fifth accused and we acquit him of the charges. His bail bond will stand cancelled.