VINOD Vs. STATE OF KERALA

JUDGEMENT

(1.) A lady aged 56 years met with a sad death while she was collecting grass from the property of JTS at Velloor in Pampady Village on 05.09.2010. The accused was arrested and charge sheeted for the offence punishable under Sections 302 and 394 IPC for the murder of the lady and for committing robbery of her gold ornaments and put under trial in Sessions Case No. 27/2011 of the IInd Additional Sessions Judge, Kottayam. The accused was found guilty both under Sections 302 and 394 IPC and rendered a judgment of conviction and order of sentence dated 11.10.2013 against which he came up with this appeal.

(2.) There is no eye witness to the alleged incident. The prosecution hence relies on the circumstantial evidence. The main circumstance proved against the accused is the recovery of MO1 to MO3 gold ornaments belonged to the victim under Exhibit P5 mahazar, based on the disclosure of the accused while under custody. The disclosure was proved through PW35, the Investigating Officer, and the recovery was proved through PW20, who witnessed its recovery from an almirah kept in the house of accused. It was found wrapped in a newspaper and kept inside the dress kept in the almirah. Exhibit P5(a) is the disclosure statement. Nothing was brought out to discredit the oral testimony of PW20 regarding the recovery. MO1 to MO3 - gold chain, locket and one of the bangles, were identified by PW5, the elder son of the deceased. MO1 is the gold chain of a particular fashion. MO2 is the locket wherein the picture of Guruvayoorappan is depicted and MO3 is the bangle of a particular type, which were worn by the deceased mother, according to PW5. But, during cross examination he deposed that he came to know about the details of gold ornaments worn by the deceased from his younger brother. It was submitted that PW5 had not made any mention about the gold ornaments at the earliest opportunity and hence it was submitted that it is only an embellishment and cannot be accepted. But the oral evidence tendered by another independent witness PW6, an NSS worker and a neighbouring lady, would clearly support and prove the identity of MO1 to MO3 gold ornaments being the one worn by the deceased as on the date of commission of the offence. She went to the house of deceased by 5.00 p.m. on that day and according to her, at that time she was wearing all these gold ornaments. Her identification is found to be trustworthy and genuine and nothing was brought out to discredit her evidence. No explanation was forwarded by the accused how he came into possession of MO1 gold chain, MO2 locket and MO3 bangle. The question whether unexplained possession of articles of theft amounts to presumptive evidence of charges of murder was considered by a Division Bench of this Court (in which we are the members) in Manikandan v. State of Kerala [2018 KHC 40 = 2018 (1) KLD 333 = 2018 (1) KLT SN 56 = 2018 (1) KLJ 350 = ILR 2018 (1) Ker. 527] and after referring various decisions of the Apex Court in George v. State of Kerala [2002 KHC 1669 = 2002 (4) SCC 475 = AIR 2002 SC 1647 = 2002 CriLJ 2031], Baiju v. State of M.P . [1978 KHC 490 = 1978 (1) SCC 588 = AIR 1978 SC 522 = 1978 SCC (Cri) 142 = 1978 CriLJ 646 = 1978 MLJ (Cri) 300 = 1978 (26) BLJR 54], Wasim Khan v. The State of Uttar Pradesh [1956 KHC 419 = 1956 SCR 191 = AIR 1956 SC 400 = 1956 CriLJ 790 = 1956 (2) MLJ (SC) 9 = 1956 ALJ 457, Alisher v. State of Uttar Pradesh [1974 KHC 654 = 1974 (4) SCC 254 = AIR 1974 SC 1830 = 1974 SCC (Cri) 416 = 1974 CriLJ 897], Tulsiran Renu v. The State [1954 KHC 398 = AIR 1954 SC 1 = 1954 CriLJ 225], Ram Bharosey v. State of Uttar Pradesh [1954 KHC 551 = AIR 1954 SC 704 = 1954 CriLJ 1755], Sanwat Khan v. State of Rajasthan [1956 KHC 367 = AIR 1956 SC 54 = 1956 CriLJ 150] and Sunderlal v. The State of Madhya Pradesh [1954 KHC 407 = AIR 1954 SC 28 = 1954 CriLJ 257], the decisions of our High Court in Ravunni Nair v. State of Kerala [1957 KHC 44 = 1957 KLT 255 = 1957 KLJ 262 = 1957 KLJ NOC 23 = 1957 KLT SN 31 = ILR 1957 Ker.67 = AIR 1957 Ker.65] , Kuttappan v. State of Kerala [1960 KHC 214 = 1960 KLT 829 = 1960 KLJ 896 = 1960 (2) KLR 222] and State of Kerala v. Jayanandan @ Jayan [2017 KHC 66 = 2017 (1) KHC SN 31 = 2017 (1) KLD 283 = ILR 2017 (1) Ker. 638 = 2017 (1) KLT SN 96 = 2017 CriLJ 2218] and various High Courts in Emperor v. Chintamani Sabu [AIR 1930 Cal.379], Re Guli Venketaswamy [AIR 1950 Mad.309] and Ramprashad Makundram Rajput v. The Crown [AIR 1949 Nag. 277] settled the legal position as follows:

(3.) Since the commission of offence of robbery and homicide simultaneous being part of same transaction, the unexplained possession of MOs 1 to 3 by the accused, just after the commission of offence, would be presumptive evidence of both commission of robbery and homicide.