AJITH KUMAR ALIAS AJI Vs. STATE

JUDGEMENT

(1.) APPELLANT stands convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/-. He further stands convicted under Section 449 and Section 382 of the IPC and sentenced to further imprisonment for five years each thereunder besides fine of Rs.5,000/- on each count, the substantial sentences to run concurrently.

(2.) THE case alleged by the prosecution briefly is as follows: Deceased Elamma was residing alone in a four cents colony. On 18th August, 2003 she was found dead. Upon her brother (Pw1) being informed and confirming her death he lodged complaint. THE body was in a putrefied stage and after postmortem it was confirmed that she was beaten to death. Investigation revealed that the appellant who was staying in the locality had on 13.8.2003 trespassed into the house of the deceased hit her on the head with a wooden log and after CRL.APPEAL No.2296 of 2006 -2- she was killed, robbed her of gold chain.

(3.) ACCORDING to Pw1 and Pw5, the niece of the deceased who allegedly accompanied the deceased when she purchased the gold ornament, the purchase was made one year prior to the death and about one year ago respectively. On the other hand, Pw3 would state that she has seen Elamma wearing it and she showed it to her at the time of purchase and that she has said that she did not remember when. Then she said that it was two to three months before the death. The evidence of PW5, the niece of the deceased cannot be accepted for the following reasons it is contended. PW5 has stated that she has not touched MO-1 ornament with her hands. It is contended that the deceased was an elderly woman. She was deaf and not in a physically good condition. If actually PW5 had accompanied the deceased, she would have certainly played an active role having regard to the fact that she was a woman and of a younger age and she would have examined the gold ornament by taking it into her hands. It is contended that this would have been the normal behavior expected of a woman of her age if she had actually accompanied the deceased to purchase the ornament. It is also contended that when it was purchased it also had a golden cross. It is pointed out that the gold chain (MO-1) recovered pursuant to the alleged statement made by the appellant did not have a golden cross. The cross is stated as having the dimension of 3 cm x 2 cm and is of gold colour. It is recovered on 20.8.2003 at the time when the scene mahazar was prepared, underneath two mats in the house of the deceased. It is pointed out that Pw1 has in his deposition stated that he saw the appellant in the police station on 18.8.2003 though the arrest as such is recorded only on 26.8.2003. The appellant was seen by Pw1 two to three days from 18.8.2003 also, it is pointed out. In regard to the recovery of the cross under the scene mahazar on 20.8.2003 it is contended that the evidence of Pw1 and Pw2 is that there is welding in the chain. It is contended that the necklace which is produced as MO-1 as having belonged to the deceased and which is recovered on the statement of the appellant under Section 27 of the Evidence Act which is apparently the very sheet-anchor of the prosecution case cannot be the ornament which was actually owned and worn by deceased Elamma. It is pointed out that the cross alone was allegedly recovered under the two mats. There is a possibility of the actual chain which was worn by Elamma having been given to somebody else. It is contended that the dimension of the cross would show that it was a big cross and the prosecution case is improbable. It is further pointed out that MO-1 is stated to be 'U' shape and there are two hooks. It is further contended that the case of the prosecution that the appellant had pledged MO-5 ring which belonged to Pw6 and the same was redeemed upon pledging MO-1 gold necklace cannot be believed. It is submitted that the appellant was deriving his livelihood as a coconut climber and it is incredible to suggest that he could not raise Rs.300/- for redeeming the gold ring which is alleged to have been pawned with Pw8. (It has come out in CRL.APPEAL No.2296 of 2006 -7- evidence that it was redeemed upon receipt of Rs.300/-). It is further contended that MO-2, two gold ear rings alleged to have been worn by the deceased Elamma would have been stolen if the prosecution case against the appellant is to be believed. Learned counsel for the appellant further submits that the weight of MO-1 as weighed by PW9 gold smith is 7.900 grams. But, it is pointed out that in the records of PW8 it is shown only as 7.750 grams. It is contended that the explanation of Pw8 by saying that usually it is shown in that fashion cannot be believed as in regard to MO-5 ring the weight was found to be 2.16 grams and it is the very same weight which is entered in his records. All these, he would submit is an attempt to point out that the recovery of the chain cannot be believed and connected with the chain allegedly worn by the deceased. Learned counsel for the appellant would submit that MO-2 ear rings was having a weight of 4 grams. (Learned counsel no doubt does not dispute the fact that there is no evidence to show the weight of the ornament). He would further submit that it is difficult to believe that the appellant would commit murder of Elamma for the purpose of committing theft. He would submit that actually Pw1 who is the brother of the deceased and Pw5 who is the niece of the deceased were cornered into giving deposition as given as they would have been threatened by the police to the effect that they would be dealt with otherwise.