Kerala High Court
State Of Kerala vs Abdul Arshad K @ Arshad on 16 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:41744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947
CRL.A NO. 827 OF 2023
AGAINST THE JUDGMENT DATED 14.12.2022 IN SC NO.654
OF 2018 OF DISTRICT COURT & SESSIONS, KASARAGOD
PETITIONER/APPELLANT/ACCUSED NO.1:
ABDUL KHADER.A.M @ KHADAR
AGED 31 YEARS
S/O MOOSA, R/AT NASREENA MANZIL, ARJUNAKUZHI,
KOTTAKKANNI, KUNJAR, MADHUR VILLAGE, KASARAGOD
DISTRICT, PIN - 671124
BY ADV SHRI.P.RAKESH THAMBAN
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA (SHO BEKEL P.S)
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY ADV. SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.05.2025, ALONG WITH CRL.A.943/2023, THE COURT ON
16.06.2025 DELIVERED THE FOLLOWING:
Crl Appeal Nos.827 & 943 of 2023 2 2025:KER:41744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947
CRL.A NO. 943 OF 2023
AGAINST THE JUDGMENT DATED 14.12.2022 IN SC NO.654
OF 2018 OF THE SESSIONS COURT, KASARAGOD
APPELLANT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE ADDITIONAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
BY ADV. SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR
RESPONDENT/ACCUSED NO.3:
ABDUL ARSHAD K. @ ARSHAD
AGED 35 YEARS
S/O ABOOBACKER,SHAFA MANZIL, DEVARUKARA, MANYA,
BELA VILLAGE, KASARAGOD DIST, PIN - 671321
BY ADV SRI.KODOTH SREEDHARAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.05.2025, ALONG WITH CRL.A.827/2023, THE COURT ON
16.06.2025 DELIVERED THE FOLLOWING:
Crl Appeal Nos.827 & 943 of 2023 3 2025:KER:41744
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
Crl Appeal Nos.827 & 943 of 2023
-----------------------------------------------
Dated this the 16th day of June, 2025
JUDGMENT
P.B.Suresh Kumar, J.
These appeals arise from S.C.No.654 of 2018 on the files
of the Court of Sessions, Kasaragod Division. Although there were
four accused in the case, the second accused absconded and the
fourth accused became an approver. Accused 1 and 3 alone, in the
circumstances, faced the trial. The Court of Session convicted the
first accused and acquitted the third accused. Crl.A.No.827 of 2023
is preferred by the first accused challenging his conviction and
Crl.A.No.943 of 2023 is preferred by the State challenging the
acquittal of the third accused.
2. Thambayi, a Hindu woman, had been looking after
Crl Appeal Nos.827 & 943 of 2023 4 2025:KER:41744
the children in a Muslim family for a long time. Over the years, she
embraced Islam and began a new chapter of her life under the name
Subaida. When the said children grew up, Subaida began living
independently in a house built in a place called Ayampara
Chekkipallam. On 19.01.2018, Subaida did not respond to calls from
the household where she previously worked. When one of the
children she looked after went to her house in search of her, it was
observed that her phone was ringing inside, even though the house
was seen locked from outside. Upon receiving the said information,
the Sub Inspector of Police, Bekal, came to the house of Subaida and
entered the house by breaking open the kitchen door. On entering
the house, the Sub Inspector of Police found the dead body of
Subaida lying therein with her face, hands and legs, bound with
pieces of cloth.
3. A case was registered suo motu by the Bekal Police
on that information under Section 302 of the Indian Penal Code (IPC).
The investigation revealed that Subaida was murdered by the
accused in an attempt to rob her of her gold ornaments. A final
report was accordingly filed in the case. The case, as outlined in the
Crl Appeal Nos.827 & 943 of 2023 5 2025:KER:41744
final report, is that the accused, in furtherance of their common
intention to commit the murder of Subaida and to rob her of her gold
ornaments, proceeded to her house at around 1:30 p.m. on
17.01.2018 in a car bearing registration number KL-14-S-9486. Upon
reaching the house, accused 3 and 4 remained in the car, while
accused 1 and 2 entered the house under the pretext of making an
enquiry with Subaida about renting a house through her. While
Subaida placed the refreshments that she had prepared for them on
the table in the course of their conversation, the second accused
covered her face from behind with a black cloth containing a
chemical substance, while the first accused restrained her by
holding her hands. When Subaida became unconscious, accused 1
and 2 laid her on the floor, removed the gold ornaments she was
wearing, and bound her hands, legs, and face with pieces of cloth, in
such a manner that her nose and mouth were completely covered.
Thereafter, when they came out of the house, accused 3 and 4 who
were waiting outside in the car, drove them to Kasaragod. It is
alleged in the final report that the stolen gold ornaments were later
sold and the sale proceeds were appropriated by the accused.
Crl Appeal Nos.827 & 943 of 2023 6 2025:KER:41744
4. Accused 1, 2 and 4 were arrested and the third
accused had surrendered before the Jurisdictional Magistrate during
investigation. After the final report, while in custody, the fourth
accused preferred an application before the concerned Chief Judicial
Magistrate expressing his desire to be an approver in the case. The
Chief Judicial Magistrate, on the said application, after recording
statement of the fourth accused, tendered pardon to him on
condition of his making a full and true disclosure of the whole of the
circumstances within his knowledge relating to the offence. The
fourth accused, thus, became an approver.
5. Later, when accused 1 and 3 were committed to
trial, the Court of Session framed charges against them under
Sections 120B, 449, 302 and 397 read with Section 34 IPC. Accused
1 and 3 pleaded not guilty to the charges. The prosecution, in the
circumstances, examined 45 witnesses as PWs 1 to 45 and proved
through them 122 documents as Exts.P1 to P122. MOs 1 to 52 are
the material objects in the case. Exts.D4 to D8 are the case diary
statements of PW6 proved by the defence during the examination of
the prosecution witnesses. On a consideration of the said materials,
Crl Appeal Nos.827 & 943 of 2023 7 2025:KER:41744
the Court of Session found the first accused guilty of the offences
punishable under Sections 452, 394 and 302 IPC, convicted him for
the said offences and sentenced him to undergo imprisonment for
life and pay fine for the offence punishable under Section 302 IPC,
rigorous imprisonment for ten years and pay fine for the offence
punishable under Section 394 IPC and rigorous imprisonment for five
years and pay fine for the offence punishable under Section 452 IPC.
Default sentences were also passed against the first accused. The
third accused was however acquitted. As already noticed, the first
accused is aggrieved by his conviction and the State is aggrieved by
the acquittal of the third accused.
6. Heard Adv.P.Rakesh Thamban, the learned counsel
for the first accused, Adv.Kodoth Sreedharan, the learned counsel for
the third accused and Smt.Ambika Devi, the learned Special Public
Prosecutor.
7. The prosecution has not adduced any direct
evidence to prove the occurrence alleged in the case. Instead, the
prosecution relied on circumstantial evidence to establish the
occurrence. It is based on the circumstances brought on record by
Crl Appeal Nos.827 & 943 of 2023 8 2025:KER:41744
the prosecution through its witnesses that the Court of Session found
the first accused guilty of the offences. The learned counsel for the
first accused has made elaborate submissions, assailing the factual
findings rendered by the Court of Session in this regard. Since there
is no direct evidence to prove the occurrence as alleged by the
prosecution, the essence of the submissions made by the learned
counsel was that the circumstances proved in the case are not
sufficient to establish the complicity of the first accused in the crime.
Per contra, the learned Special Public Prosecutor supported the
impugned decision insofar as it relates to the conviction of the first
accused in the case and argued that the reasons stated by the Court
of Session to acquit the third accused are vitiated by serious errors
of facts and law. According to the learned Special Public Prosecutor,
the said decision, insofar as it relates to the acquittal of the third
accused, calls for interference in the appeal, or otherwise, there
would be serious miscarriage of justice. The learned counsel for the
third accused contended that the view taken by the Court of Session
on the facts and evidence to acquit the third accused, cannot be said
to be a view which is not possible or at least plausible. It was
Crl Appeal Nos.827 & 943 of 2023 9 2025:KER:41744
therefore argued by him that the decision of the Court of Session,
insofar as it relates to the third accused, does not call for
interference in the appeal.
8. The points that arise for consideration are: (i)
whether the evidence adduced by the prosecution establishes
beyond reasonable doubt that it was the first accused and another
who caused the death of Subaida and robbed her of her gold
ornaments; (ii) if so, the offences if any, committed by the first
accused and the sentences to be passed against him; (iii) whether
the decision acquitting the third accused calls for interference in
appeal.
9. Points (i) & (ii) : In order to adjudicate the points, it
is necessary to refer to the relevant evidence in the case. The
witness examined as PW1 is the approver. PW1 identified accused 1
and 3 in court, after affirming that he had previous acquaintance
with them as they all hail from the same place. It was deposed by
PW1 that about a week prior to the occurrence, he along with
accused 1 to 3 went to Kannur in a white i20 car bearing registration
number KL-60-K-1111 taken on rent by the second accused to meet
Crl Appeal Nos.827 & 943 of 2023 10 2025:KER:41744
one Jishnu, who owed some money to the third accused; that the
second accused was driving the car then; that the car dashed
against an Activa Scooter on their way and that since the car and
accused 1 and 3 were detained by the police for having caused
damage to the Activa Scooter, PW1 along with the second accused
had to arrange a sum of Rs.20,000/- to compensate the owner of the
Activa Scooter to get the car as also accused 1 and 3 released. It
was deposed by PW1 that upon the car being released, all of them
went to a house at Periya on 16.01.2018 where the first accused had
earlier worked, in order to raise funds to repay the amount arranged
to compensate the owner of the Active Scooter and also to meet the
expenses for repairing the car in which they were travelling. It was
deposed by PW1 that as the house to which they proceeded was
found locked then, while making enquiries about the residents
therein, they happened to meet Subaida, who was residing in the
neighbourhood. It was deposed by PW1 that they pretended to
Subaida that they are looking for a house to be taken on rent; that
Subaida then showed them a vacant house in the locality and
introduced to them a person named Umbu who is looking after a few
Crl Appeal Nos.827 & 943 of 2023 11 2025:KER:41744
houses, including the vacant one, on behalf of its owners and that in
the course of the said conversation, they noticed that Subaida was
wearing a pair of earrings, a pair of bangles and also a chain. It was
deposed by PW1 that on the following day around noon, they
proceeded again to her house in a swift car bearing registration
number KL-14-S-9486 taken on rent by the third accused and upon
reaching her house, PW1 along with the third accused remained in
the car, while accused 1 and 2 entered the house and they were
carrying, at the relevant time, a small bottle and a towel. It was
deposed by PW1 that about fifteen minutes thereafter, accused 1
and 2 called PW1 and the third accused to pick them up from the
house in the car and that when PW1 and the third accused reached
the house, accused 1 and 2 entered the car. It was deposed by PW1
that accused 1 and 2 were carrying then the bottle and towel as also
the key of the house of Subaida and they threw the same out of the
car on their way to Kasaragod. It was deposed by PW1 that on
reaching Kasaragod, accused 1 and 2 informed them that they
committed theft of the ornaments of Subaida and that the same
were being carried by them at the relevant time. PW1 identified MO1
Crl Appeal Nos.827 & 943 of 2023 12 2025:KER:41744
and MO2 as the bangles, MO3 series as the pair of earrings and MO4
as the gold chain carried by accused 1 and 2 then. It was deposed by
PW1 that they sold the gold ornaments to a jewellery shop for a sum
of Rs.1,18,000/- and that they appropriated the sale proceeds. In
cross-examination of PW1 by the counsel for the first accused, even
though it was suggested that he had no previous acquaintance with
the first accused, PW1 denied the same.
10. PW2 is the Sub Inspector of Police, Bakel who
broke open the house of Subaida. PW2 deposed the said fact in his
evidence. According to PW2, on entering the house, he found the
body of a lady lying with her face, legs and hands tied with pieces of
cloth and that the body was identified as that of Subaida by one
Harris.
11. PW3 is the brother of Harris referred to by PW2.
Harris and PW3 are two among the children in the house where
Subaida had earlier worked. PW3 deposed that Subaida came to his
house on 17.01.2018; that since she did not respond to the calls
made to her by one of his relatives, PW3 went to her house on
19.01.2018 and on reaching the house, it was noticed that the house
Crl Appeal Nos.827 & 943 of 2023 13 2025:KER:41744
was closed from outside and at the same time, her phone was
ringing from inside. It was deposed by PW3 that the matter was
informed to the police and that the police broke open the kitchen
door of the house and informed them that Subaida is lying dead
inside the house. PW4 is Harris referred to by PW2 and PW3. PW4
gave evidence more or less on similar lines as the evidence
tendered by PWs 2 and 3. It was clarified by PW4 that Subaida came
to his house in the morning of 17.01.2018. PW4 has identified MOs 1
to 4 as the gold ornaments usually worn by Subaida. PW5 is the
sister of PW3 and PW4. PW5 also identified MOs 1 to 4 as the gold
ornaments usually worn by Subaida. In addition, PW5 deposed that it
was she who purchased MO1 and MO2 bangles for Subaida.
12. PW6 is Umbu referred to by PW1 in his evidence.
PW6 gave evidence on similar lines as the evidence given by PW1
that he went to the vacant house as required by Subaida; that when
he reached the said vacant house, he saw two persons who came in
a white car talking to Subaida; that he showed them the vacant
house; that thereafter they offered to drop him at his house in the
car in which they came and when he entered the back seat of the
Crl Appeal Nos.827 & 943 of 2023 14 2025:KER:41744
car, he saw two other persons sitting in the back seat. PW6 identified
the first accused as one among those who were standing near the
car and the third accused as one among who were sitting inside the
car. PW6 affirmed in his evidence that he identified the first accused
in the test identification parade as well. It was also deposed by PW6
that he identified the person who was sitting inside the car along
with the third accused in the test identification parade. In the cross-
examination of PW6 by the counsel for the third accused, it was put
to PW6 that he has not stated to the police that four persons came in
the car and among them, two were standing outside and that two
were sitting inside when he reached the vacant house as required by
Subaida, PW6 denied the same. PW6 also denied having made
Ext.D5 statement to the police namely that “അവിടെ ഒരു വെളുത്ത
കാറിനടുത് രണ്ടു പേർ പുറത്തു സുബൈദിത്തയോട് സംസാരിച്ചുകൊണ്ടും ഒരാൾ കാറിന്റെ
പിന്നിൽ ഇരിക്കുന്ന നിലയിലും ഉണ്ടായിരുന്നു”.
13. PW7 is a lady residing in the neighbourhood of the
house of Subaida. PW7 deposed that she knew Subaida for about 10
years as she used to go near the house of Subaida everyday to drop
her children on their way to school. It was deposed by PW7 that on
Crl Appeal Nos.827 & 943 of 2023 15 2025:KER:41744
17.01.2018, while she was coming from Periya, she saw a red car
near the house of Subaida. According to PW7, it was about 1.30 p.m.
and there were two persons standing near that car at the relevant
time. PW7 identified the third accused as one among them. In the
cross-examination of PW7 by the counsel for the third accused, PW7
clarified that she had no previous acquaintance with the persons
who were standing near the car; that she did not inform the police
their features and that she is seeing the third accused thereafter
only in the court. PW7 however stated in the cross-examination that
it was reported in the newspapers later that the assailants of
Subaida came in a red car and that it is based on the said
information in the newspaper that she gave statement to the police.
14. PW9 is the person, according to the prosecution,
who arranged the red swift car bearing registration number KL-14-S-
9486 for the use of the third accused on rental basis. PW9 deposed
that he had acquaintance with the third accused for about 20 years;
that the said vehicle belongs to his colleague Hamsa and that on a
request made by the third accused, he arranged the same for him
from Hamsa. It was also deposed by PW9 that the third accused
Crl Appeal Nos.827 & 943 of 2023 16 2025:KER:41744
returned the car on 22.01.2018, even though he did not pay the
entire money.
15. PW11 is an employee in a jewellery shop at Pallam
Road, Kasaragod. PW11 deposed that the shop is engaged, among
others, in the purchase and sale of used gold ornaments; that on
02.02.2018, the police brought to the shop a person who was
wearing a mask; that the said masked person then told the police
that he has given gold ornaments to PW11; that the police then
closed the shutter of the shop and showed that person to PW11,
after lifting his mask and that the said person was one who came to
the shop on a few occasions earlier for sale of gold ornaments. PW11
identified the first accused as the person who was brought by the
police to the shop. It was deposed by PW11 that the first accused
came to the shop earlier on 17.01.2018 along with three others and
that PW11 purchased from the first accused, gold ornaments
weighing 40.900 grams for a sum of Rs.1,18,000/-. It was also
deposed by PW11 that he handed over to the police the ornaments
purchased from the first accused and he identified the same as MOs
1 to 4. PW11 has also identified the third accused as one among the
Crl Appeal Nos.827 & 943 of 2023 17 2025:KER:41744
persons who accompanied the first accused at the relevant time.
16. PW19 is a lady residing in one of the houses which
is being looked after by PW6 and situated adjacent to a vacant
house shown by PW6 to those who accompanied Subaida for the said
purpose on 16.01.2018. PW19 is the person who had acquaintance
with Subaida. PW19 deposed that on 16.01.2018, Subaida came to
her house along with a few others in a white car to ascertain
whether she knows the telephone number of Umbu and that later
PW19 found Umbu showing the adjoining vacant house to them.
PW19 identified the first accused as one among those who came
along with Subaida to her house on 16.01.2018. PW19 affirmed in
her evidence that she identified the first accused in the test
identification parade as well.
17. PW31 was the doctor who conducted the post-
mortem examination on the body of the deceased. Ext.P27 is the
post-mortem certificate. The following were the ante-mortem injuries
found by PW31 on the body of the deceased:
1. Lacerated wound 2 x 0.5 cm on the inner aspect of
left cheek, close to the molar teeth.
2. Lacerated wound 1 x 0.4 cm on the outer aspect of
Crl Appeal Nos.827 & 943 of 2023 18 2025:KER:41744lower lip, 1.5 cm inner to the right corner of mouth.
3. Contusion 1 x 1 cm on the upper lip, 0.5 cm above
the right corner of mouth.
4. Contusion 1.5 x 1 cm on the lower lip, 1 cm to the
left of midline.
5. Contusion 1.5 x 1 cm on the inner aspect of upper
lip, close to the left angle of mouth.
6. Contusion 1 x 0.5cm on the chin.
7. Contusion 0.5 x 0.5 cm on the left cheek, 5 cm away
from the left angle of mouth (the contusions were
demonstrated by putting multiple incisions at areas of
doubtful discoloration).
8. On dissection, the inner aspect of the scalp
overlying the right parietal eminence showed a
contusion, 7 x 4.5 cm; skull and dura were intact; brain
was partly liquefied due to decomposition.
9. Contusion 1.5 x 1 cm on the right border of the
tongue, at its middle.
10. Multiple contusions seen at the tip of tongue.
It was deposed by PW31 that the death was due to smothering. It
was clarified by PW31 that smothering means covering the mouth
and nostrils to cut of the air supply to the lungs and that the same
can be done by applying hands, clothes, pillows etc and that death
will occur if smothering lasts for 3 to 5 minutes. It was also clarified
Crl Appeal Nos.827 & 943 of 2023 19 2025:KER:41744
by PW31 that covering tightly the face of a person with clothes one
by one is smothering which may cause death. PW31 further clarified
that the injuries noted on the body of the deceased are indicative of
typical cases of smothering. It was deposed by PW31 that the death
must have occurred between 48 hours and 72 hours prior to the
post-mortem.
18. PW35 is the Judicial Magistrate who conducted the
test identification parades of the accused in the course of the
investigation. PW35 deposed that in the test identification parade
conducted on 08.02.2018 at Hosdurg District Jail, PW6 and PW19
identified the first accused as also the fourth accused (PW1). Ext.P35
is the report submitted by PW35 in connection with the test
identification parade conducted on 08.02.2018.
19. The case of the prosecution is that the first
accused was using mobile number 9526781019, the third accused
was using mobile number 9141919116 and the fourth accused
namely PW1 was using mobile number 7559841530. PW41 was the
Nodal officer of the Telecom Service Provider “Vodafone Idea Ltd” at
the relevant time. PW41 made available the Call Detail Record of the
Crl Appeal Nos.827 & 943 of 2023 20 2025:KER:41744
mobile number 9526781019 for the period from 01.11.2017 to
30.01.2018 and deposed that the mobile number 9526781019 is one
allotted to the first accused. Ext.P50, the customer application
submitted by the first accused for the said purpose, was made
available by PW41. Ext.P48 is the Call Detail Record. It was also
deposed by PW41 that during the relevant period, there were 21
calls from number 9526781019 to the mobile number 9141919116
and also 26 calls to the mobile number 7559841530. Similarly, it
was deposed by PW41 that on 16.01.2018, there were calls from the
number 9526781019 to the number 7559841530 at 09:59:20 hours
and at 11:05:10 hours. Similarly, it was deposed by PW41 that there
were calls at 10:26:59 hours and 10:49:09 hours from the mobile
number 9141919116 to 9526781019 and there was a call at
11:01:22 hours from 9526781019 to the mobile number
9141919116. Similarly, it was also deposed by PW41 that on the
following day, namely, 17.01.2018, there were calls at 10:49:26 and
10:57:49 hours between mobile numbers 9526781019 and
7559841530.
20. PW41 has also made available the Call Detail
Crl Appeal Nos.827 & 943 of 2023 21 2025:KER:41744
Record of the mobile number 7559841530 for the period from
01.11.2017 to 30.01.2018. PW41 deposed that the mobile number
7559841530 is one allotted to PW1. Ext.P53, the customer
application submitted by PW1 for the said purpose, was made
available by PW41. Ext.P51 is the Call Detail Record in respect of the
mobile number 7559841530. PW41 deposed that from the number
7559841530, there were 29 calls to mobile number 9526781019
and 13 calls to mobile number 9141919116 during the relevant
period. It was also deposed by PW41 that on 16.01.2018, there were
calls from the number 7559841530 to the mobile number
9526781019. Similarly, it was deposed by PW41 that on 17.01.2018,
there were calls between the number 7559841530 and mobile
numbers 9526781019 and 9141919116.
21. PW41 has further deposed that the mobile number
9141919116 is one allotted to the third accused. Ext.P57, the
customer application submitted by the third accused for the said
purpose, was made available by PW41. Ext.P55 is the Call Detail
Record in respect of the mobile number 9141919116. PW41 deposed
that there were calls during the relevant period from the mobile
Crl Appeal Nos.827 & 943 of 2023 22 2025:KER:41744
number 9141919116 to the mobile numbers 9526781019 and
7559841530. It was also deposed by PW41 that on 16.01.2018,
there were calls between the mobile number 9141919116 and
9526781019 at 10:27:00 and 10.49.09 hours. Similarly it was
deposed by PW41 that there was a call between the mobile number
9141919116 and the mobile number 7559841530 at 10:44:46 hours
on 17.01.2018. It was deposed by PW41 that on 17.01.2018, mobile
number 9141919116 was within the limits of the tower bearing ID
No.404460020565183 which covers the area namely Periya. Ext.P58
is the letter sent by the telecom service provider to the District
Police Chief, Kasargod in this regard.
22. PW45 is the police officer who conducted the
investigation in the case. It was PW45 who conducted the inquest. It
was deposed by PW45 that when he saw the body of the deceased,
both the legs and hands were found tied with pieces of cloth.
Similarly, the face of the body was tied with a black cloth; that there
were two other layers of cloth also beneath the same, namely a red
cloth and a rose-patterned one on a white background. PW45
identified MO13 as the black cloth, MO14 as the red cloth and MO15
Crl Appeal Nos.827 & 943 of 2023 23 2025:KER:41744
as the rose cloth on white background. It was deposed by PW45 in
his evidence that when he saw the body, the deceased was not
found wearing any ornaments. It was deposed by PW45 that the first
accused was arrested on 01.02.2018 at 5.35 p.m. and that the
fourth accused (PW1) was arrested on the same day at 6.10 p.m. It
was also deposed by PW45 that as he was contemplating to conduct
test identification parades of the accused, their faces were covered
with masks immediately on their arrest. It was deposed by PW45
that during interrogation pursuant to the arrest, the first accused
disclosed that washed gold ornaments have been sold by him and
others to a jewellery shop at Kasaragod and that he can show that
shop and the person who purchased the same from him, and that
pursuant to the said disclosure, when the first accused was taken to
a jewellery shop named “M.S.Jewellery” as guided by him, the first
accused showed PW45, the person to whom the first accused sold
the gold ornaments. It was deposed by PW45 that the said person in
the jewellery shop identified the first accused when his mask was
lifted after closing the shutter of the shop and stated to PW45 that
on 17.01.2018 at about 3.30 p.m., the first accused came to his shop
Crl Appeal Nos.827 & 943 of 2023 24 2025:KER:41744
along with three others and sold to him MOs 1 to 4 ornaments
weighing 40.900 grams for a sum of Rs.1,18,000/-. It was also
deposed by PW45 that the gold ornaments made available by the
said person in the jewellery shop was seized by him as per Ext.P9
mahazar. It was also deposed by PW45 that later on 14.02.2018, he
arrested the second accused in the case and during interrogation
pursuant to his arrest, it was disclosed by the second accused that
“തുണിയും കുപ്പിയും road side ലുള്ള ഒരു മതിൽ കെട്ടിനുള്ളിലേക് ഞാൻ
വലിച്ചെറിഞ്ഞിട്ടുണ്ട്. എന്നെ കൂട്ടി കൊണ്ടുപോയാൽ വലിച്ചെറിഞ്ഞ സ്ഥലവും പറമ്പും
കാണിച്ചുതരാം” and pursuant to the said disclosure, when the second
accused was taken to the place mentioned as guided by him on
15.02.2018, he took out from a vacant garden land on the way to a
place called Ayambara, MO10 plastic bottle and MO11 black kerchief
and the same were seized as per Ext.P11 seizure. Ext.P91 is the
disclosure which led to Ext.P11 seizure. PW16 is the witness to
Ext.P11 seizure and he endorsed in his evidence, the said fact.
Ext.P115 is the report of the Forensic Science Laboratory. It is
recited in Ext.P115 that formic acid was detected in items 5 and 6
therein which are MO11 towel and MO10 plastic bottle respectively.
Crl Appeal Nos.827 & 943 of 2023 25 2025:KER:41744
It is based on the evidence discussed above that the Court of
Session came to the findings referred to in paragraph 5 above.
23. The evidence discussed above in general and the
evidence tendered by PW31, the doctor who conducted the post-
mortem examination, in particular, would establish beyond
reasonable doubt that the death of Subaida was a homicide. The
pointed question, therefore, is as to who caused the death of
Subaida and robbed her of her gold ornaments.
24. The prosecution has not let in any direct evidence
to prove that it was accused 1 and 2 who caused the death of
Subaida and robbed her of her gold ornaments. Instead, the
prosecution relies on the various circumstances brought out through
the evidence of the witnesses examined on its side to prove the
death of Subaida and robbery of her gold ornaments. Among the
circumstances, the crucial circumstances are those brought out
through the evidence of PW1, the approver. After referring to
Section 133 and Illustration (b) to Section 114 of the Indian Evidence
Act as also the earlier decisions of the Apex Court dealing with the
said statutory provisions, it was held by the Apex Court in
Crl Appeal Nos.827 & 943 of 2023 26 2025:KER:41744
Somasundaram v. State, (2020) 7 SCC 722 that it would be unsafe
to convict an accused solely based on uncorroborated testimony of
an accomplice and as a rule of prudence, corroboration must be
insisted in relation to the material particulars of the testimony of an
accomplice. It was clarified by the Apex Court in the said case that
every material circumstance against the accused need not be
independently confirmed, for, if such a view is adopted, it would
render the evidence of the accomplice, wholly superfluous. All that is
required is that there must be some additional evidence which would
make the evidence tendered by the accomplice believable.
25. Let us now analyse the evidence tendered by PW1
as regards the complicity of the first accused in the crime. Even
though a suggestion was made to PW1 during the cross-examination
that the first accused is not a person known to him, PW1 has
emphatically denied the same. PW6 Umbu, who was introduced to
PW1 and others by the deceased on 16.01.2018, as deposed by
PW1, identified the first accused as one of the persons found in the
company of PW1 and the deceased on 16.01.2018. No doubt, PW6
did not have previous acquaintance with the first accused, but the
Crl Appeal Nos.827 & 943 of 2023 27 2025:KER:41744
identification of the first accused by PW6 in the test identification
parade lends corroboration to his court identification. As noted,
PW19 is a lady residing in one of the houses which is being looked
after by PW6 and situated adjacent to the vacant house shown by
the deceased to those who accompanied her for the said purpose on
16.01.2018. PW19 deposed that on 16.01.2018, the deceased came
to her house along with a few others in a white car to ascertain
whether she knows the telephone number of PW6 before PW6 joined
them and the first accused was one among those who accompanied
the deceased to her house on 16.01.2018. As in the case of PW6, the
identification of the first accused by PW19 in the test identification
parade lends corroboration to her court identification. As noted, PW4
is one among the children in the house where the deceased had
earlier worked in, and PW5 is his sister. Both PW4 and PW5 have
unmistakably deposed before the court and identified MOs 1 to 4 as
the gold ornaments usually worn by the deceased. In addition, it was
also deposed by PW5 that it was she who purchased MO1 and MO2
bangles for the deceased. PW45, the investigating officer has
deposed that during interrogation pursuant to the arrest, the first
Crl Appeal Nos.827 & 943 of 2023 28 2025:KER:41744
accused made a disclosure that “കഴുകിയ സ്വർണ്ണങ്ങളുമായി ഞങ്ങൾ കാറിൽ
നേരെ കാസർകോട് പോയി ഒരു കടയിൽ വിറ്റു എന്നെ കൂട്ടിക്കൊണ്ട് പോയാൽ സ്വർണ്ണം
വിറ്റകടയും അത് വാങ്ങിയ ആളെയും കാണിച്ചുതരാം” and that pursuant to the said
disclosure, when the first accused was taken to the jewellery shop
where PW11 was working, the first accused pointed out PW11 to
PW45 as the person to whom the first accused sold the gold
ornaments to; that PW11 identified the first accused as the person
from whom he purchased MOs 1 to 4 gold ornaments on 17.01.2018.
PW11 endorsed and affirmed the evidence tendered by PW45.
26. As noted, it has come out from the evidence of
PW41 that the first accused and PW1 were in frequent contact over
telephone between the period from 01.11.2017 to 30.01.2018 and
that there were calls between them on 16.01.2018 and 17.01.2018.
The only argument advanced as regards the evidence tendered by
PW41 is that Ext.P48 Call Detail Record of the mobile number of the
first accused and Ext.P51 Call Detail Record of the mobile number of
PW1 were not supported by certificates in terms of Section 65B of
the Indian Evidence Act. The fact that Exts.P48 and P51 Call Detail
Records were accompanied by certificates purported to have been
Crl Appeal Nos.827 & 943 of 2023 29 2025:KER:41744
issued under Section 65B of the Indian Evidence Act is not in
dispute. The argument is only that the said certificates are not in
accordance with the provisions contained in Section 65B of the
Indian Evidence Act. Ext.P49 is the certificate appended to Ext.P48
Call Detail Record and Ext.P52 is the certificate appended to Ext.P51
Call Detail Record. Both the certificates are similarly worded. Ext.P49
reads thus:
Certificate
Certified that this is the true data as defined in Section
2 (O) of the Information Technology Act 2000 and this
contains the CDR and ECAF of Mobile Number :
9526781019 which is submitted in 25 Sheets.
It is certified that the above data was produced by the
computer (server) operated using I comply, the
company’s mobile transmission system software
during the period over which the computer was used
regularly to store/process information for the purpose
of the mobile transmission activated carried on over
the period by the person having lawful control over the
use of computer, that the information of the said kind
was regularly fed into the computer in the ordinary
course of the mobile transmission activities of the
company during the said period; that the computer
was operating properly throughout the said period;
that the information reproduces the information fed
into the computer during the ordinary course of mobile
transmission activities. I identify that the report is
generated by me, from the relevant data fed into the
computer through the prescribed process ensuring
Crl Appeal Nos.827 & 943 of 2023 30 2025:KER:41744accuracy.
Certified that the undersigned has got control over the
management of the relevant activates and that the
safe guards prescribed under subsection 4 of section
65 B of the Indian Evidence Act has been fulfilledFor IDEA Cellular Limited.
Sd/-
Authorised signatory
Nodal officer & Person incharge of the computer
system.
The specific argument advanced by the learned counsel for the first
accused is that in terms of Section 65B(4) of the Indian Evidence
Act, in the light of the decision of the Apex Court in Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, a certificate
doing the things (a) to (c) mentioned in sub-section (4) of Section
65B alone could be accepted as a certificate in terms of Section 65B
of the Indian Evidence Act. According to the learned counsel, the
extracted certificate, namely Ext.49 and similar certificates do not
contain the particulars of the device involved in the production of
those electronic records as provided for in clause (b) of sub-section
(4) of Section 65B. Clause (b) of sub-section (4) of Section 65B reads
thus:
Crl Appeal Nos.827 & 943 of 2023 31 2025:KER:41744
“(b) giving such particulars of any device involved in
the production of that electronic record as may be
appropriate for the purpose of showing that the
electronic record was produced by a computer; ”
As noted, it is categorically stated in the certificate that the data was
produced by the computer (server) operated using I- comply, the
mobile transmission system software of the company. The
certificate, according to us, satisfies the requirements in terms of
Section 65B of the Indian Evidence Act. It is seen that this Court had
in fact rejected identical contention in Lijo Joy v. State of Kerala,
2020 SCC OnLine Ker 25201. Paragraph 76 of the said judgment
reads thus:
“76. PW24 was examined from the side of the
prosecution and through whom Exts.P22 and 23 were
proved. On perusing Exts.P22 and 23 it could be seen
that the call data have been duly certified as
contemplated under Section 65(B) of the Evidence Act.
So also while the documents were marked no objection
whatsoever was raised from the side of the accused.
As stated earlier the documents also contained a
certificate that the print out was produced by the
computer (server) operator using I comply, the
company’s mobile transmission system software
during the period over which the computer was used
regularly to store/process information for the purpose
of the mobile transmission activated carried on over
the period by the person having lawful control over the
use of computer and further that the information of the
said kind was regularly fed into the computer in the
Crl Appeal Nos.827 & 943 of 2023 32 2025:KER:41744ordinary course of the mobile transmission activities of
the company during the said period etc. So the
contention that Exts.P22 and P23 do not have proper
certification contemplated under Section 65(B) of the
Evidence Act is not sustainable. So also though it is
contended by the learned counsel that the original
Nodal Officer who provided the information was not
examined on perusing Exts.P22 and 23 it is seen
certified by Sri. Rajkumar Pavothil, who is the Nodal
Officer and Person in charge of the computer system
of Idea Cellular Ltd. Mobile Company, Kerala Circle.”
As in Lijo Joy, while the certificates were being marked, no objection
whatsoever was raised from the side of the accused. In other words,
there is absolutely no impediment in accepting the Call Detail
Record in evidence, in the case on hand.
27. At this stage, it is necessary to refer to a
contention persuasively made by the learned counsel for the first
accused. As noted, while in custody, the fourth accused preferred an
application before the concerned Chief Judicial Magistrate expressing
his desire to be an approver in the case and the Chief Judicial
Magistrate, after recording the statement of the fourth accused,
tendered pardon to him on condition of his making a full and true
disclosure of the whole of the circumstances within his knowledge
relative to the offence. Ext.D1 is the statement of the fourth accused
Crl Appeal Nos.827 & 943 of 2023 33 2025:KER:41744
recorded by the Chief Judicial Magistrate. The contention is that in
the matter of recording Ext.D1 statement, the Chief Judicial
Magistrate has not complied with the mandatory requirements
contained in sub-sections (2) and (4) of Section 164 of the Code of
Criminal Procedure (Code). According to the learned counsel,
inasmuch as the said requirements have not been complied with
while recording Ext.D1, the order tendering pardon to the fourth
accused is illegal and therefore, the evidence tendered by the
approver as PW1 is inadmissible. Sub-section (1) of Section 308 of
the Code provides that where, in regard to a person who has
accepted a tender of pardon made under Section 306, the Public
Prosecutor certifies that in his opinion such person has, either by
wilfully concealing anything essential or by giving false evidence, not
complied with the condition on which the tender was made, such
person may be tried for the offence in respect of which the pardon
was so tendered or for any other offence of which he appears to
have been guilty in connection with the same matter, and also for
the offence of giving false evidence. Sub-section (2) of Section 308
clarifies that any statement made by such person accepting the
Crl Appeal Nos.827 & 943 of 2023 34 2025:KER:41744
tender of pardon and recorded by a Magistrate under Section 164 or
by a Court under sub-section (4) of Section 306 may be given in
evidence against him at such trial. The learned counsel for the first
accused relied on the aforesaid provisions to reinforce his
contention.
28. The relevant portion of Section 306 of the Code
dealing with tender of pardon to accomplice, reads thus:
306. Tender of pardon to accomplice.–(1) With a view
to obtaining the evidence of any person supposed to
have been directly or indirectly concerned in or privy
to an offence to which this section applies, the Chief
Judicial Magistrate or a Metropolitan Magistrate at any
stage of the investigation or inquiry into, or the trial of,
the offence, and the Magistrate of the first class
inquiring into or trying the offence, at any stage of the
inquiry or trial, may tender a pardon to such person on
condition of his making a full and true disclosure of the
whole of the circumstances within his knowledge
relative to the offence and to every other person
concerned, whether as principal or abettor, in the
commission thereof.
xxx xxx xxx
xxx xxx xxx
(4) Every person accepting a tender of pardon
made under sub-section (1)–
(a) shall be examined as a witness in the
Court of the Magistrate taking cognizance of the
Crl Appeal Nos.827 & 943 of 2023 35 2025:KER:41744offence and in
the subsequent trial, if any;
(b) shall, unless he is already on bail, be
detained in custody until the termination of the trial.
Section 306 is a provision intended to secure evidence to bring
heinous offences to light by tendering pardon to an accused or
accomplice in the crime. Upon being granted pardon, the court
transforms the accused or accomplice into a prosecution witness.
The extent of the culpability of the accomplice may not be of much
significance and there can be no objection against tender of pardon
simply because the accomplice does not implicate himself to the
same extent as the other accused in his statement. In other words,
the object of the provision is to secure a disclosure about the
involvement of other accused, rather than focussing on the self-
incrimination of the approver [See Suresh Chandra Bahri v. State of
Bihar, 1995 Supp (1) SCC 80]. The legal shift from “accused” to
“approver/witness” fundamentally alters the nature of the statement
given by the accused. Once pardon is tendered, the legal status of
the individual changes. As already noticed, the statement of the
accused is no longer about establishing his guilt which is the premise
Crl Appeal Nos.827 & 943 of 2023 36 2025:KER:41744
for Section 164 confessions, but about providing comprehensive
evidence as a witness. In other words, the provisions which are
designed to ensure the voluntariness of self-incrimination, are not
directly applicable to the act of granting pardon or the subsequent
testimony of the approver. Sub-section (1) of Section 306 does not
lay down the procedure to be followed while tendering pardon and
the said section only provides that if pardon is tendered, the same
shall be subject to condition of the person making full and true
disclosure of the whole of the circumstances within his knowledge
relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof. Sub-
section (4) of Section 306 provides that every person accepting a
tender of pardon shall be examined as a witness in the court of the
Magistrate taking cognizance of the offence and in the subsequent
trial. There is no indication, at all, in Section 306 of the Code that a
confession of the person concerned shall be recorded for the
purpose of tendering a pardon to an accomplice. The only insistence
in Section 306 is that the tender of pardon shall be subject to the
condition that the person concerned shall make “full and true
Crl Appeal Nos.827 & 943 of 2023 37 2025:KER:41744
disclosure” of the whole of the circumstances within his knowledge
relative to the offence and to every other person concerned. While it
is possible that an accomplice may have previously made a
confession under Section 164 of the Code during investigation, once
he is tendered pardon and when he makes a “full and true
disclosure” of the whole of the circumstances within his knowledge
relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof in terms
of Section 306, the confession may not have any relevance in the
proceedings. Of course, sub-section (2) of Section 308 provides that
in the event of the contingency as stated in sub-section (1), the
statement made by such person accepting the tender of pardon and
recorded by a Magistrate under Section 164 or by a Court under sub-
section (4) of Section 306 may be given in evidence against him at
such trial. True, a confession made by the accomplice before
tendering pardon may also come within the scope of sub-section (2)
of Section 308, but that does not mean that it is obligatory for the
Court to record the confession of the accomplice before tendering
pardon. Needless to say, there is no substance in the argument
Crl Appeal Nos.827 & 943 of 2023 38 2025:KER:41744
advanced by the learned counsel for the first accused in this regard.
29. A meticulous analysis of the evidence tendered by
the witnesses namely, PW3, PW4, PW5, PW6, PW11, PW19, PW41
and PW45, reveals that the evidence tendered by the said witnesses
corroborates, in material particulars, the evidence tendered by PW1,
and the evidence of the said witnesses renders the testimony of PW1
believable, in the peculiar facts and circumstances of the case.
30. The next aspect to be considered is whether the
evidence tendered by PW1 as corroborated by the evidence
tendered by PWs 3, 4, 5, 6, 11, 19, 41 and 45 would establish
beyond reasonable doubt that it was accused 1 and another who
caused the death of Subaida and robbed her of her gold ornaments.
As already noticed, there is no direct evidence to prove the said fact.
The evidence tendered by PW1 would only show that accused 1 and
another, entered inside the house of Subaida at about 1.30 p.m. on
17.01.2018 and came out from her house after about fifteen minutes
with her ornaments.
31. A presumption of fact is a type of circumstantial
Crl Appeal Nos.827 & 943 of 2023 39 2025:KER:41744
evidence which, in the absence of direct evidence, becomes a
valuable tool in the hands of the Court to reach the truth without
unduly diluting the presumption in favour of the innocence of the
accused which is the foundation of the criminal law. Section 114 of
the Indian Evidence Act which enables the Court to presume
existence of certain facts provides that “The Court may presume the
existence of any fact which it thinks likely to have happened, regard
being had to the common course of natural events, human conduct
and public and private business, in their relation to the facts of the
particular case.” Illustration (a) to Section 114 provides that the
court may presume that a man, who is in possession of stolen goods
soon after the theft is either the thief or he has received the goods
knowing them to be stolen, unless he can account for his possession.
The Indian Evidence Act defines the expression “may presume”
thus:
“Whenever it is provided by this Act that the Court
may presume a fact, it may either regard such fact as
proved, unless and until it is disproved, or may call for
proof of it.”
Inasmuch as the expression “may presume” is used in Section 114,
the Court may either regard the fact as proved, unless and until it is
Crl Appeal Nos.827 & 943 of 2023 40 2025:KER:41744
disproved, or call for proof of it. It has been established beyond
reasonable doubt in the case that MOs 1 to 4 gold ornaments
recovered based on the information furnished by the first accused,
were gold ornaments usually worn by the deceased. The occurrence
in the case is one that took place on 17.01.2018. The first accused
was arrested on 01.02.2018. The ornaments mentioned above were
recovered on 02.02.2018. No doubt, the presumption under Section
114 (a) can be invoked only if the stolen articles are found to be in
the possession of a person concerned soon after the theft. In
Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, the Apex
Court, while reiterating the principle that no fixed time limit can be
laid down to determine whether possession is recent or otherwise,
held that even a period of one year was not too long, having regard
to the fact that the accused disappeared after the incident. In other
words, the first accused cannot be heard to contend that he was not
found to be in possession of MOs 1 to 4 gold ornaments soon after
the theft. The first accused had no satisfactory explanation to
account for his possession of MOs 1 to 4 gold ornaments. In other
words, according to us, the presumption under Illustration (a) to
Crl Appeal Nos.827 & 943 of 2023 41 2025:KER:41744
Section 114, could be safely drawn.
32. The question then is, applying Illustration (a) to
Section 114, whether the presumption should be that the first
accused stole the gold ornaments, the goods in the subject case or
later on, received the goods knowing them to be stolen. On an
overall consideration of the materials on record, especially the
evidence tendered by PW31, the doctor who conducted the post-
mortem examination, that the death of Subaida occurred on
17.01.2018, on which day the first accused and another entered her
house and came out with her gold ornaments, and in the absence of
any explanation from the first accused as to how he came to be in
possession of MOs 1 to 4 gold ornaments, it can safely be presumed
that the first accused and another were the persons who committed
theft of MOs 1 to 4 gold ornaments of Subaida, from her house.
33. The finding aforesaid takes us to the moot question
whether, having regard to the facts of the case on hand, the
presumption should be extended to the perpetration of the offence
of robbery or culpable homicide or both. Prima facie, such
presumption does not come within the sweep of Illustration (a) of
Crl Appeal Nos.827 & 943 of 2023 42 2025:KER:41744
Section 114, but it was held by the Apex Court
in Raj Kumar v. State (NCT of Delhi), (2017) 11 SCC 160, that with
the aid of the presumption under Section 114 of the Evidence Act,
the charge of murder cannot be brought home, unless there is some
evidence to show that the robbery and the murder occurred at the
same time, i.e., in the course of the same transaction. In other
words, in a given case, if the robbery and murder takes place in the
course of the same transaction at the same time, such a
presumption can be made. Reverting to the facts, PW31, the doctor
who conducted the post-mortem examination on the body of the
deceased has given evidence that her death must have occurred
between 48 hours and 72 hours prior to the post-mortem. It is seen
from Ext.P27 post-mortem certificate that the post-mortem
examination was conducted between 10 a.m. and 11.30 a.m. on
20.01.2018. In other words, the death must have occurred between
10 a.m. on 17.01.2018 and 10 a.m. on 18.01.2018. The evidence
tendered by PW31 is consistent with the case of the prosecution that
the death occurred on 17.01.2018. In the light of the evidence
tendered by PWs 1, 3, 4 and 31, it can safely be concluded that the
Crl Appeal Nos.827 & 943 of 2023 43 2025:KER:41744
death of Subaida occurred in the same transaction in which accused
1 and another, robbed MOs 1 to 4 gold ornaments. In other words, it
can certainly be presumed that accused 1 and another caused the
death of Subaida while committing robbery of her gold ornaments.
34. The next aspect to be considered is whether the
homicide of Subaida is ‘culpable homicide’ as defined under Section
299 IPC or ‘murder’ as defined under Section 300 IPC. Even though
this aspect was not argued by the learned counsel for the first
accused, we find it obligatory on our part to consider this aspect in
the light of the decision of the Apex Court in State of A.P. v.
Rayavarapu Punnayya, AIR 1977 SC 45 that the distinction between
Sections 299 and 300 though fine, is real, and if overlooked, may
result in miscarriage of justice. As noted, the allegation in the final
report in the case on hand is that while Subaida placed refreshments
that she had prepared for accused 1 and 2 on the table in the course
of their conversation on the relevant day, the second accused
covered her face from behind with a black cloth containing a
chemical substance, while the first accused restrained her by
holding her hands until she became unconscious and thereupon,
Crl Appeal Nos.827 & 943 of 2023 44 2025:KER:41744
they laid her on the floor, removed the gold ornaments she was
wearing, and thereafter left the scene after tying her hands, legs,
and face with pieces of cloth in such a manner that her nose and
mouth were completely covered. As already noticed, the proved
facts would establish that accused 1 and 2 caused the death of
Subaida while attempting to rob her of her gold ornaments. The
question is whether the act committed by accused 1 and another, in
terms of which the death of Subaida was caused, would amount to
‘murder’ punishable under Section 302 IPC.
35. Section 299 IPC defines “culpable homicide”. The
said Section without its illustrations and explanations reads thus:
“Whoever causes death by doing an act with the
intention of causing death, or with the intention of
causing such bodily injury as is likely to cause death,
or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable
homicide.”
Section 300 IPC defines “murder”. The said Section without its
illustrations and exceptions reads thus:
“Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is
caused is done with the intention of causing death, or
—
Crl Appeal Nos.827 & 943 of 2023 45 2025:KER:41744
Secondly — If it is done with the intention of
causing such bodily injury as the offender knows to be
likely to cause the death of the person to whom the
harm is caused, or —
Thirdly — If it is done with the intention of
causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or —
Fourthly — If the person committing the act
knows that it is so imminently dangerous that it must,
in all probability, cause death or such bodily injury as
is likely to cause death, and commits such act without
any excuse for incurring the risk or causing death or
such injury as aforesaid.”
In the light of Section 299 IPC, in order to constitute culpable
homicide, the act of the accused must be either an act committed
with the intention of causing death, or with the intention of causing
such bodily injury as is likely to cause death, or with the knowledge
that he is likely by such act to cause death. The ante-mortem
injuries noted on the body of the deceased at the time of post-
mortem examination do not show that the injuries found on the body
were injuries inflicted with the intention of causing such bodily
injuries as is likely to cause death. Even the learned Special Public
Prosecutor who vehemently contended that the act committed by
accused 1 and another, would amount to murder as defined under
Crl Appeal Nos.827 & 943 of 2023 46 2025:KER:41744
Section 300 IPC, did not argue that the act was one committed with
the intention of causing such bodily injury as is likely to cause death.
The contention was only that the act was one committed with the
intention of causing death and therefore, it is murder. The first and
foremost aspect to be considered, therefore, is whether the proved
facts would justify a finding that the first accused intended to cause
the death of Subaida. In the absence of any direct evidence for the
occurrence, this aspect needs to be considered based on the
circumstances established in the case. The prosecution has no case
that accused 1 and 2 carried any lethal weapon while entering the
house of the deceased. Instead, the allegation is only that they
carried a chemical substance in a small plastic bottle, and a black
cloth. Similarly, as noted, the prosecution has no case that accused
1 and 2 caused any bodily injury to the deceased as is likely to cause
the death. Instead, the allegation is only that the second accused
covered her face from behind with a black cloth containing a
chemical substance, while the first accused restrained her by
holding her hands until she became unconscious and later while they
were leaving the premises, they tied her hands, legs, and face with
Crl Appeal Nos.827 & 943 of 2023 47 2025:KER:41744
cloth pieces, in such a manner that her nose and mouth were
completely covered. The said allegations, according to us, are not
sufficient to infer that accused 1 and another, intended to cause the
death of Subaida. True, even if accused 1 and another, never had
any intention to cause her death initially, the possibility of them
intending to cause the death in the course of the transaction, cannot
be ruled out. But, there are no materials on record in the case to
make such an inference. According to us, the proved facts, at the
most, are sufficient only to hold that accused 1 and another
intended to rob the deceased of her gold ornaments, after making
her unconscious.
36. The learned Special Public Prosecutor has brought
to our notice the evidence of PW45, the police officer who conducted
the inquest, that when he saw the dead body of Subaida, the face
was tied with a black cloth and there were two other pieces of cloth
beneath the same and the evidence of PW31, the doctor who
conducted the post-mortem examination, that there was flattening
of the face including nostrils and mouth and that smothering may
cause, if cloths are tied on the face tightly. Placing reliance on the
Crl Appeal Nos.827 & 943 of 2023 48 2025:KER:41744
said materials, it was argued by the learned Special Public
Prosecutor that the said evidence is sufficient to hold that accused 1
and 2 intended to cause the death of Subaida. We do not agree. No
doubt, the evidence tendered by PW45 would show that when he
found the body of the deceased, the face was tied with a black cloth
and there were two other pieces of cloth also beneath the same.
According to us, merely for the said reason and also the fact that the
cloth was tied tightly covering the face, it cannot be said that
accused 1 and 2 intended to cause the death of Subaida. At the
same time, from the proved facts, it could be inferred that accused 1
and 2 tied the face of the deceased with a black cloth after tightly
tying two other pieces of cloth covering the face. From the said
conduct of accused 1 and 2, according to us, they can certainly be
attributed with the knowledge that the said act is likely to cause
death. If that be so, the act committed by accused 1 and 2 would
certainly fall within the third limb of Section 299 IPC. Needless to
say, the act would amount to culpable homicide.
37. The next question is whether the culpable
homicide committed by accused 1 and 2 would amount to murder. It
Crl Appeal Nos.827 & 943 of 2023 49 2025:KER:41744
is trite that a culpable homicide falling within the third limb of
Section 299 IPC would constitute murder only if it satisfies the
requirement contained under the head “Fourthly” in Section 300 IPC.
The head “Fourthly” in Section 300 IPC reads thus:
“If the person committing the act knows that it is so
imminently dangerous that it must, in all probability,
cause death, or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.”
In order to satisfy the requirements of the said clause, the person
committing the act should not only know that the act is so
imminently dangerous that it must, in all probability, cause death, or
such bodily injury as is likely to cause death and he shall commit
such act without any excuse for incurring the risk of causing death or
such injury as aforesaid. There are no materials in the case on hand
to satisfy the dual conditions aforesaid namely that accused 1 and 2
knew that the act committed by them in tying the face of the
deceased with cloth pieces tightly is so imminently dangerous that it
must, in all probability, cause the death of the deceased or cause
such bodily injury as is likely to cause death and that they did the
act without any excuse for incurring the risk of causing death or such
Crl Appeal Nos.827 & 943 of 2023 50 2025:KER:41744
injury as aforesaid. Even if there is any doubt on this aspect, the
benefit of the same has to go in favour of accused 1 and 2. Needless
to say, the first accused is liable to be convicted only for culpable
homicide not amounting to murder under Section 304 Part II IPC for
having caused the death of Subaida. In short, the prosecution has
established beyond reasonable doubt, only the guilt of the first
accused and another under Sections 452, 394 and 304 Part II IPC.
38. What remains to be considered is the aspect as
regards the sentence to be passed against the first accused for the
offence under Section 304 Part II IPC. Having regard to the peculiar
facts of this case, especially the fact that the death of Subaida was
caused while committing robbery of her gold ornaments, we are of
the view that rigorous imprisonment for a period of ten years and a
fine of Rs.25000/- would be the appropriate sentence to be passed
against the first accused for having committed the said offence.
Points (i) and (ii) are answered accordingly.
39. Point (iii): The main circumstances relied on by the
prosecution to establish the guilt of the third accused in the case are
the circumstances brought out in the evidence of PW1, the approver.
Crl Appeal Nos.827 & 943 of 2023 51 2025:KER:41744
It is seen that in the light of Illustration (b) to Section 114 of the
Indian Evidence Act that an accomplice is unworthy of credit, unless
he is corroborated in material particulars, the Court of Session took
the view that the evidence tendered by PW1 as regards the
complicity of the third accused in the crime has not been
corroborated in material particulars by other evidence, and it is on
that basis, the third accused was acquitted by giving him the benefit
of doubt. The learned Special Public Prosecutor persuasively argued
that the view taken by the Court of Session, that the evidence of
PW1 as regards the complicity of the third accused has not been
corroborated in material particulars by the other evidence tendered
by the prosecution, is unsustainable. According to the learned
Special Public Prosecutor, every aspect of the evidence tendered by
PW1 as regards the complicity of the third accused has been
corroborated by the independent evidence let in by the prosecution.
The learned Special Public Prosecutor has also relied on the call data
records of the accused made available by PW41 to substantiate the
said contention.
40. Before examining the correctness of the
Crl Appeal Nos.827 & 943 of 2023 52 2025:KER:41744
submissions made by the learned Special Public Prosecutor, it is
necessary to note that once the Court of Session acquits the accused
in a case, the presumption of innocence in his favour is strengthened
and reinforced. As such, it is settled that the appellate court may
overrule or otherwise disturb the order of acquittal only if the
appellate court has substantial and compelling reasons for doing so.
It is also settled that if two reasonable or at least plausible views can
be reached on the facts and evidence, one that leads to acquittal
and the other that leads to conviction, the appellate court shall rule
in favour of the accused [See Dhanapal v. State, (2009) 10 SCC
401]. It is also settled that the appellate court ought not interfere in
the orders of acquittal, unless there is gross perversity in the
appreciation of evidence, or patent illegalities. Let us now consider
the sustainability of the submissions made by the learned Special
Public Prosecutor, keeping in mind the said principles.
41. No doubt, it was categorically deposed by PW1 that
he along with accused 1 to 3 went to the place called Periya on
16.01.2018 and that the deceased took them, on the said day, to a
vacant house as they pretended to her that they are in search of a
Crl Appeal Nos.827 & 943 of 2023 53 2025:KER:41744
house to be taken on rent and that she introduced to them PW6 for
the said purpose. It was also deposed by PW1 that on the following
day, PW1 along with accused 1 to 3 went to the house of the
deceased in a red swift car taken on rent by the third accused,
accused 1 and 2 entered the house of the deceased while he and the
third accused were remaining inside the car and they later took
accused 1 and 2 to ‘MS Jewellery’ after the occurrence from the
house of the deceased and sold the gold ornaments robbed from the
deceased in the said shop. As noted, the argument advanced by the
learned Special Public Prosecutor is that the said evidence tendered
by PW1 has been corroborated in material particulars by PW6, PW7,
PW9 and PW11. Among these witnesses, PW6 is Umbu. In Ext.D5
previous statement, the stand taken by PW6 was that when he
reached the vacant house as required by the deceased, two persons
were seen talking to the deceased outside the car in which they
came and one person was sitting inside the car. Identical is the stand
taken by PW6 in Ext.D7 also that there was only one person in the
car when the two persons found in the company of the deceased,
dropped him at his residence. However, the evidence of PW6 was
Crl Appeal Nos.827 & 943 of 2023 54 2025:KER:41744
that when he reached the vacant house, he saw two persons talking
to the deceased; that later when they offered to drop him at his
house in the car in which they came, he entered the back seat of the
car and saw two other persons sitting in the back seat. It is thus
established that the evidence tendered by PW6 as regards the
number of persons who accompanied the deceased to the vacant
house was not consistent with his previous statement namely,
Exts.D5. The matter does not end there. As noticed, the evidence of
PW35, the Judicial Magistrate who conducted the test identification
parades was that PW6 identified the first accused and PW1 in the
test identification parade conducted on 08.02.2018 and that PW6
also identified the second accused in the second test identification
parade conducted on 21.02.2018. PW6 also affirmed the said facts in
his evidence clarifying that among them, accused 1 and 2 were
standing outside the car. If as a matter of fact, there were only three
persons with the deceased on 16.01.2018 when PW6 reached the
vacant house, going by the evidence tendered by him, they were
accused 1, 2 and PW1. PW6 however deviated from the stand taken
in Ext.D5 and deposed that he saw the third accused sitting in the
Crl Appeal Nos.827 & 943 of 2023 55 2025:KER:41744
car when he entered inside the car. In the light of Ext.D5, according
to us, it may not be safe to place reliance on the evidence tendered
by PW6 that it was the third accused that he saw in the company of
the deceased on 16.01.2018. If that be so, it cannot be said that the
evidence tendered by PW1 as regards the presence of the third
accused in the company of the deceased on 16.01.2018 when PW6
arrived at the vacant house, has been corroborated by the evidence
tendered by PW6.
42. As noted, PW7 is a lady who was residing in the
neighbourhood of the house of the deceased during the relevant
period. Her evidence was that on 17.01.2018, while she was coming
from Periya, she saw a red car near the house of the deceased at
about 1.30 p.m and that there were two persons standing near that
car at the relevant time and she identified in court the third accused
as one among them. In cross-examination, PW7 clarified that she
had no previous acquaintance with the persons who were standing
near the car; that she did not inform the police their features and
that she is seeing the third accused thereafter only in the court. PW7
also admitted that it was reported in the newspapers later that the
Crl Appeal Nos.827 & 943 of 2023 56 2025:KER:41744
assailants of Subaida came in a red car and that it is based on the
said information in the newspaper that she is giving evidence in the
case. The relevant portions of the deposition of PW7 read thus:
“കാറിനു പുറത്തു നിൽക്കുന്നതായി കണ്ട രണ്ടു പേരെ മുന്പരിചയമില്ല.
അവരെ തിരിച്ചറിയാനുള്ള ശാരീരിക അടയാളങ്ങളൊന്നും അന്വേഷണ
ഉദ്യോഗസ്ഥനു പറഞ്ഞുകൊടുത്തില്ല ……….
നാട്ടുകാർ പറഞ്ഞാണ് കൊലപാതകത്തെപ്പറ്റി അറിയുന്നത് രണ്ടു മൂന്ന്
ദിവസം കഴിഞ്ഞാണ് പത്രം വായിക്കുന്നത് അപ്പോൾ ഒരു ചുവന്ന കാറിന്റെ
കഥ നിങ്ങൾ മനസിലാക്കി. അല്ലെ (Q) അതെ (A) പത്ര വാർത്തയുടെ
അടിസ്ഥാനത്തിലാണ് police ന് മൊഴി കൊടുക്കുന്നത്. A3 യെ അന്നു
കണ്ടശേഷം ഇന്നു കോടതിയിലാണ് കാണുന്നത്.”
It is seen that PW7 has given evidence about 4½ years after the
occurrence. As admitted by PW7, the third accused is not a person
with whom PW7 had any previous acquaintance. As conceded by
PW7, she had not stated to the police the features, if any, of the
third accused so as to enable her to identify him almost about 4 ½
years after the occurrence. That apart, as admitted by PW7, there
were newspaper reports about the assailants of the deceased, the
particulars of the car in which they came to the house of the
deceased etc. In the circumstances, we are of the view that in a case
of this nature, it may not be safe to place reliance on the evidence
tendered by PW7 to corroborate the evidence given by PW1 as
Crl Appeal Nos.827 & 943 of 2023 57 2025:KER:41744
regards the complicity of the third accused in the crime. The learned
Special Public Prosecutor brought to our notice the statement made
by PW7 in re-examination that it is almost two weeks after she saw
the car near the house of the deceased, that the newspaper report
referred to by PW7 has been read by her, to contend that her
statement in the cross-examination that she gave statement to the
police based on newspaper reports is of no consequence. We are
unable to accept this argument as the learned Special Public
Prosecutor herself admitted that the statement of PW7 has been
recorded by the police, long after the occurrence. If that be so, it
cannot be said that the evidence tendered by PW1 as regards the
presence of the third accused in front of the house of the deceased
at about 1.30 p.m. on 17.01.2018 has been corroborated by the
evidence tendered by PW7.
43. PW9 is the person, according to the prosecution,
who arranged the red swift car bearing registration number KL-14-S-
9486 for the use of the third accused on rental basis and he deposed
the said fact in his evidence. No doubt, the evidence of PW9 would
corroborate the evidence of PW1 to the limited extent that the swift
Crl Appeal Nos.827 & 943 of 2023 58 2025:KER:41744
car in which PW4 and others proceeded to the house of the
deceased on 17.01.2018 was one that was taken on rent by the third
accused from one Hamsa through PW9.
44. As noted, PW11 is the employee in the jewellery
shop to which the first accused sold the robbed gold ornaments. The
evidence given by PW11 was that the first accused came to his
jewellery shop on 17.01.2018 along with three others and that PW11
purchased from the first accused, MOs 1 to 4 gold ornaments. PW11
identified the third accused as one among the persons who
accompanied the first accused at the relevant time. Whereas, in the
cross-examination of PW1, he clarified that for the purpose of selling
the gold ornaments, only accused 1 and 2 had gone to the jewellery
shop and that he along with the third accused were sitting in the car
itself at a distance from where the shop could be seen. The relevant
evidence reads thus:
“ഞങ്ങൾ നാലുപേരും Jewellery shop ൽ പോയില്ല. അസ്സീസും (A2)
കാദറും (A1) ആണ് Jewellery യിൽ പോയത്. ഞങ്ങൾ shop ൽ
കാണാവുന്ന ദൂരത്തിൽ കാറിൽ ഇരിക്കുകയായിരുന്നു.”
If what is stated by PW1 is correct, the evidence given by PW11 that
the third accused who was identified by him in court, went to the
Crl Appeal Nos.827 & 943 of 2023 59 2025:KER:41744
shop along with the first accused, cannot be accepted as correct.
Needless to say, it is not safe to place reliance on the evidence
tendered by PW11 as regards the presence of the third accused in
his shop at the time when the first accused sold the robbed gold
ornaments to him.
45. In short, corroboration is available to the evidence
of PW1 insofar as it relates to the complicity of the third accused in
the crime, only to the limited extent of the evidence tendered by
PW9 that the car in which PW1 and others went to the house of the
deceased on 17.01.2018, was one taken on rent by the third
accused. Apart from the evidence of PW1, there is only the evidence
of PW41, the Nodal Officer of the Telecom Service Provider that
accused 1, 3 and PW1 were in frequent contact over phones on
16.01.2018 and 17.01.2018 and that the mobile number of the third
accused was at Periya between 12.28.56 hours and 13.25.28 hours
on 17.01.2018. If we eschew the part of the evidence tendered by
PW1 insofar as it relates to the complicity of the third accused in the
crime, which is not corroborated in material particulars, what
remains is the evidence that the car in which PW1 and others went
Crl Appeal Nos.827 & 943 of 2023 60 2025:KER:41744
to the house of the deceased on 17.01.2018 was one taken on rent
by the third accused; the evidence that the third accused was a
close associate of the first accused and PW4; the evidence that there
was frequent calls between accused 1, 3 and PW1 over phone during
the relevant period and the evidence that the mobile number
allotted to the third accused by the Telecom Service Provider was
within the telecom tower covering the area ‘Periya’. Inasmuch as the
prosecution relies on circumstantial evidence to prove the guilt of
accused 1 and 3, it is trite that the facts established by the
circumstances shall form a chain of evidence so 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
circumstances aforesaid, according to us, do not form a chain of
evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and are not
sufficient to hold that in all human probability, the act must have
been done by the third accused. Needless to say, the view taken by
the Court of Session to acquit the third accused is a possible view
Crl Appeal Nos.827 & 943 of 2023 61 2025:KER:41744
and the same does not call for interference in the appeal. Point (iii) is
answered accordingly.
In the light of the findings rendered on the points,
Criminal Appeal No.943 of 2023 is dismissed and Criminal Appeal
No.827 of 2023 is allowed in part. The conviction of the first accused
under Section 302 IPC is altered to Part II of Section 304 IPC and he
is sentenced to undergo rigorous imprisonment for a period of ten
years and to pay a fine of Rs.25,000/- and in default of payment of
fine, to undergo simple imprisonment for three months.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
Mn