Kerala High Court
Krishnan Nair vs Raneesh T on 11 June, 2025
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 11
DAY OF JUNE 2025 / 21ST JYAISHTA,
1947
CRL.A NO. 1086 OF 2022
AGAINST THE JUDGMENT DATED 31.05.2022 IN SC NO.651 OF 2018 OF
THE PRINCIPAL SESSIONS COURT, KASARAGOD
APPELLANT
/ACCUSED NO.3:
RUN KUMAR.K @ ARUNI
A
AGED 30 YEARS
S/O KARUNAKARAN, ALLARAT HOUSE, CHEERKULAM, PULIYANNUR,
KASARAGOD DISTRICT, PIN - 671313
Y ADVS.
B
SRI.P.K.VARGHESE
SHRI.M.T.SAMEER
SRI.P.S.ANISHAD
SRI.K.R.ARUN KRISHNAN
SHRI.JERRY MATHEW
SHRI.BIJU KUMAR
SHRI.DHANESH V.MADHAVAN
SHRI.REGHU SREEDHARAN
SHRI.RAMEEZ M. AZEEZ
SMT.NAMITHA K.S.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 2
RESPONDENT/STATE:
TATE OF KERALA
S
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
PIN - 682031
BY SR.PUBLIC PROSECUTOR, RANJITH T.R. & SMT.NEEMA.T.V.
THIS
CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
0.05.2025,
3 ALONG
WITH
CRL.A.Nos.124/2023, 358/2023&Crl.
A(V)
No. 29/2022, THE COURT ON 11.06.2025 DELIVERED THE FOLLOWING:
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 11
DAY OF JUNE 2025 / 21ST JYAISHTA,
1947
CRL.A NO. 124 OF 2023
AGAINST THE JUDGMENT DATED 31.05.2022 IN SC NO.651 OF 2018 OF
THE
PRINCIPAL SESSIONS COURT, KASARAGOD
APPELLANT
/ACCUSED NO.1:
ISHAK V.V
V
AGED 33 YEARS
S/O. RAMACHANDRAN, VALIYA VEETTIL HOUSE, CHEERKULAM,
PULIYANNUR, CHEEMENI VILLAGE, KASARGOD DISTRICT,
PIN - 671313
BY ADV SRI.VISHNUPRASAD NAIR
RESPONDENT
/STATE:
TATE OF KERALA
S
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 4
Y SR.PUBLIC PROSECUTOR, RANJITH T.R. &
B
SMT.NEEMA.T.V.
THIS
CRIMINAL APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
0.05.2025,
3 ALONG
WITH
CRL.A.1086/2022 AND
CONNECTED
CASES,
THE
COURT ON 11.06.2025 DELIVERED THE FOLLOWING:
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 11
DAY OF JUNE 2025 / 21ST JYAISHTA,
1947
CRA(V) NO. 29 OF 2022
AGAINST THE JUDGMENT DATED 31.05.2022 IN SC NO.651 OF 2018 OF
THE
PRINCIPAL SESSIONS COURT, KASARAGOD
APPELLANT
/ACCUSED NO.1:
KRISHNAN NAIR
*
AGED 85 YEARS
AMBU, KALATHYERA HOUSE, PULIYANNUR,PADAVOOR PO,
KASARAGODE DISTRICT,, PIN – 671313
NAME OF THE APPELLANT IS CORRECTED AS ‘KRISHNAN’
*
INSTEAD OF ‘KRISHNAN NAIR’ AS PER ORDER DATED
11.06.2025 IN CRL.M.Appl.No.1/2024 in CRA(V) No.
29/2022)
Y ADVS.
B
SRI.M.DEVESH
SHRI.THAREEQ ANVER
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 6
RESPONDENT/2nd ACCUSED/STATE:
1
ANEESH T
R
AGED 24 YEARS
S/O RAMACHANDRAN, THALAKKAT HOUSE, CHEERAKULAM,
PULIYANNUR, CHEMENI VILLAGE, KASARAGOD DISTRICT,
PIN – 670511
2
TATE OF KERALA
S
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
PIN – 682031
BY SR.PUBLIC PROSECUTOR, RANJITH T.R. & SMT.NEEMA.T.V.
THIS
CRL.A
BY
VICTIM
HAVING
COME
UP
FOR
FINAL
HEARING
ON
0.05.2025
3 ALONG
WITH
CRL.A.1086/2022
AND CONNECTED CASES,
THE
COURT ON 11.06.2025 DELIVERED THE FOLLOWING:
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 11
DAY OF JUNE 2025 / 21ST JYAISHTA,
1947
CRL.A NO. 358 OF 2023
AGAINST THE JUDGMENT DATED 31.05.2022 IN SC NO.651 OF 2018 OF
THE
PRINCIPAL SESSIONS COURT, KASARAGOD
APPELLANT/
COMPLAINANT
TATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR
S
AGED 1 YEARS
HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031
BY SR.PUBLIC PROSECUTOR, RANJITH T.R. & SMT.NEEMA.T.V
RESPONDENT/
ACCUSED NO.2:
ANEESH .T
R
AGED 24 YEARS
S/O RAMACHANDRAN.C, THALAKKATT HOUSE, CHEERKULAM,
PULIYANNUR, CHEEMENI VILLAGE, KASARGOD DISTRICT,
PIN – 670511
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 8
Y ADVS.
B
SRI.C.R.SIVAKUMAR
SMT.SUBHAJA P.
SMT.S.SOORYA GAYATHRY
SMT.VIJITHA V.S.
SMT.BINI KRISHNA
THIS
CRIMINAL APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
0.05.2025,
3 ALONG
WITH
CRL.A.1086/2022 AND
CONNECTED
CASES,
THE
COURT ON 11.06.2025 DELIVERED THE FOLLOWING:
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 9
”CR”
J U D G M E N T
[CRL.A Nos. 1086/2022, 124/2023, 358/2023, & Crl.A.(V) No.29/2022]
Raja Vijayaraghavan, J.
Thepresentcasearisesfromaspine-chillingandgruesomeincidentthat
occurredinthequietvillageofPuliyannurwithinthelimitsofCheemeni.Anelderly
couple, Krishnan and Janaki - both retired school teachers - were residing in
House No. VI/553, when three masked men forcibly entered their home after
about9p.m.on13.12.2017.Theintrudersassaultedthecoupleandrobbedthem
of their money and gold ornaments.Janaki,whowasinherseventies,sustained
fatalinjuriesandsuccumbedtothesame.Krishnan,aged80yearsasperrecords,
was tied up and attacked, suffering serious injuries to his neck. Despite his
condition, he managed to free himself and alert the police.
1.1. Based on the information provided by Krishnan, the police
registered Crime No.403 of 2017 of the Cheemeni Police Station under Sections
449, 394, 397 and 302 r/w. Section 34 of the IndianPenalCode,arrayingthree
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 10
persons as the accused. Initially, the identity of the assailants was unknown.As
theinjuredhadsufferedinjuriestotheneck,whichwereserious,hewasnotina
position to narrate various aspects of the incident that he had observed at the
time of lodging the First InformationStatementabout3hoursaftertheincident.
PW1 was initially shifted to the Pariyaram Medical College and then to the
Kasturba Medical College, Manipal. On 16.12.2017, an additional statement was
recorded, wherein PW1 furnished additional details that he remembered of the
incident. On 15.12.2017, the statement of PW2, the son of the informant, was
recorded,whoprovidedinformationabouttheitems,includinggoldandcash,that
werefoundmissingfromthehouse.Inthemeantime,Ext.P62scenemahazarwas
prepared by PW94, the Investigating Officer, whereinhenotedthetell-talesigns
of robbery and the presence ofbloodalloverthehouse.Hefoundstrewnpillow
covers and other clothes containing blood, open jewellery boxes and also found
thatsomeshelvesandalmirahshadbeenopenedforcefully.Piecesofblackcloth,
which could have been used by the assailants to mask their identity, were also
seized from the precincts of the house.
1.2. The police, however, was not able to obtain any indication of the
identity of the assailants who had committed the gruesome act till the 21st of
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 11
February, 2018.
1.3 On21.02.2018,thepolicereceivedinformationthatoneVishak.V.V.,
a nearby resident, who was later arraigned as the 1st accused, had sold gold
ornamentsatajewelleryshopinKannur.Asearchwasconductedathisresidence
after complying withtheformalities,andareceiptforthesaleofoldgoldfroma
shop named ”Krishna Jewels” was seized. The jewellery shop owner thought it
propertoissueachequeinVishak’sname,whichhedulydepositedinhisaccount
and obtained a sum ofRs.1,29,970/-on19.02.2018.Thisprovidedastronglead
to the police.
1.4. Vishak.V.V.wasarrested,andduringinterrogation,hedisclosedthe
involvement of accused Nos. 2 and 3. Accused No. 2 was arrested on thesame
day. Accused No. 3 had fled the country and wasinBahrain.Uponlearningthat
the police were trying to secure his presence, he returned to India and was
arrestedatKozhikodeAirporton23.02.2018.ASamsungMobilephone,whichwas
being used by accused No.1 was seized by the police. They wereabletoobtain
valuable digital information from the mobile phone (MO49).
1.5. The investigation revealed that the 1st accused had gone to a
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 12
jewellery shop at Payyanur by name ’Puthiya Valappil Gold’ and had made an
attempt to sell Pavithra Mothiram (MO9), belonging to PW1 and Thali (MO10),
which was allegedly worn by the deceased, claiming that he found it. The shop
ownerdecidedtointimatethepolicewhichpromptedthe1staccusedtoflee.The
ring and Thali were entrusted with the Payyanur Police, which wereseizedafter
making a prompt General Diary entry. Based on the disclosure made by the 1st
accused pointing to ’Puthiya Valappil Gold’, which later reached the Payyanur
Police, they were able to seize the Pavithra Mothiram and Thali.
1.6. A Bombay model Necklace owned by the wife of PW2 was also
found to havebeenrobbed.The1staccusedisallegedtohavedisclosedthathe
made an attempt to sell the Gold at a jewellery store by name ”Gold Point” at
Taliparamba, but he wasunsuccessful.Thepolicefoundthathehadmanagedto
sell thenecklaceweighing5½ sovereignsinKrishnaJewelsatKannur.Basedon
the disclosure made by the 1st accused, the gold ornament, which was melted
into an ingot was recovered.
1.7. The investigating agency also came to theconclusionthatthe1st
accused sold the three bangles weighing approximately 2 sovereigns each
belongingtothewifeofPW2intheJewelHouse,Hampankatta,Mangalorebased
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 13
on the disclosure made by the accused. The gold in the form of ingot was
recovered.
1.8. The 1st accusedmadeadisclosurethathehadsoldthegoldchain
and bangle belonging to Janaki Teacher in the Arshith Jewellery at Kannur and
received₹66,000/-towardssaleconsideration.Basedontheabovedisclosure,the
entire cash kept in an envelope, was seized from house bearing No.VI/508
wherein his mother’s elder sister resided.
1.9. The police also seized knives, which were allegedly used by the
accusedforthecommissionoftheoffenceandmasks,whichwereallegedlyworn
by the accused for trespassing into the house and keeping their identity
concealed.
1.10. The mobile phones of the accused were seized, and the same
were subjected to analysis. The tower location details of the phones of the
accusedrevealedthatthe1staccusedwasseeninthelocalityoftheplaceswhere
he had sold the gold or had attempted to sell the same. The call records also
revealed to the police that the accused were in constant touch with each other.
1.11. To connect the 2nd accused (Reneesh.T) with the Crime, the
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 14
prosecution placed materials to substantiate that he had gone foraDrivingTest
with the 1st accused and after that they had gone together to purchase the
masks. Evidencewasalsoadducedtoshowthatthe2ndaccusedhadpurchased
a mobile phone with the assistance of his friends using the ill-gotten cash.
1.12. To link the 3rd accused with the crime, the prosecution placed
materials to show that the mobile phone owned by the 1st accused was taken
away by the 3rd accused and the same was thrown into a pond. Based on the
disclosurestatementofthe3rdaccused,themobilephonewasseizedfromabrick
pond.A”Cherakkathy”(MO15)allegedtohavebeenusedbythe3rdaccusedfor
opening the Almirah, is stated to have been recovered from the bushes near
Puliyannoor River. Based on the disclosure statement given by the 3rd accused,
the knife, which was allegedly used for inflicting fatal injuriesonJanakiTeacher,
was seized. At the time of preparation of the scene mahazar, a Tracksuit Pants
(MO18), which was allegedly used for tying thehandsofPW1,hadbeenseized.
The said tracksuit pants was sent for DNAanalysis,andthereportrevealedthat
thesamplecontainedanadmixtureofthebloodofthe3rdaccusedandPW1.This
was found to be another serious incriminating circumstance against the 3rd
accused. Another circumstance linking the 3rd accused with themurderwasthe
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 15
seizureoftheIDcardbelongingtothemotherofthe3rdaccusedentrustedwith
the Jewellery Shop at Hampankatta while selling the gold. PW34, a close friend
andco-workerofthe3rdaccused,cameforwardandstatedtothepolicethatthe
3rd accused, while theyweredrinkingtogether,disclosedtheinvolvementofhim
and his two friends inthemurderofJanakiTeacher.Thisextrajudicialconfession
was presented as an incriminating circumstance.
1.13.Evidencewasalsocollectedtoprovethattheaccusedhadhatched
a conspiracy at various places and times, and also had purchased masks and
masking tapes from “Binale Fancy” and hid them underneath a culvert.
2. PW94,whoconductedtheinvestigation,completedthesameandlaid
the final report before the Court.
The Charge:
3. As per the charge laidbeforetheCourtofSessions,thecaseofthe
prosecution is that the accused Nos. 1 to 3, in furtherance of their common
intention to commit robbery in the house of PW1 bearing Door No.VI/553 of
Kayyur - Cheemeni Grama Panchayat, criminally conspired and met at various
places and thereafter purchased masking tapes from ”Binale Fancy”, Neeleswar
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 16
and on 13.12.2017 at 9.45 p.m. trespassed into the house of PW1 and stabbed
him and his wife Janaki Teacher and robbed 17 sovereigns of gold and
Rs.92,000/- and therebycommittedtheoffencespunishableunderSections120B
302, 307, 392, 397, 394 and 449 r/w. Section 34 of the IPC.
Committal proceedings:
4. The learned Sessions Judge, before whom the case wascommitted
fortrial,followedtheprocedureandframedthechargeagainsttheaccused.They
pleadednotguiltywhenthechargewasreadoverandclaimedthattheybetried
in accordance with law.
5. Before the Trial Court, the prosecution examined PW1 to PW94 to
proveitscase.Exts.P1toP212wereexhibitedandmarked.MO1toMO55series
were produced and identified. After the close of prosecution evidence, the
incriminating materials were put to the accused under Section 313 Cr.PC. They
maintainedtheirinnocence.Separatestatementswerefiledbytheaccusedstating
theirversion.AstherewasnoscopeforacquittingtheaccusedNos.1to3under
Section 232 of theCr.PC,theywerecalledupontoenterontheirdefence.Indira
V.V., the mother’s elder sister of the 1st accused, was examined as DW1.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 17
Findings of the learned Sessions Judge:
6. The learned Sessions Judge,afteracomprehensiveevaluationofthe
evidence,concludedthattheprosecutionreliedondirectaswellascircumstantial
evidence to prove the offences allegedly committedbyaccusedNos.1to3.The
following conclusions were arrived at:
a)ThefactthatPW1sustainedgrievousinjuriesinanattemptonhislife,
andthathiswife,JanakiTeacher,lostherlifeduringarobberycommittedattheir
residence on the night of 13.12.2017, by three masked assailants, has been
established beyond doubt by the prosecution.
b) The evidence tendered by PW1 with respect to the incidentandthe
specificovertactscommittedbytheassailantsduringtherobberywasfoundtobe
credible. The robbery, the murder, and the attempted murder committed on the
night of 13.12.2017 at the residence of PW1 were held to be part of the same
transaction.
c) The recoveryofMO9(PavithraMothiram)andMO10(Thali)pursuant
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 18
to the disclosure statement made by the 1st accused was held to be a strong
circumstance pointing to the involvement of the 1st accused in the robbery.
d)The evidence let inbytheprosecutionthatthe1staccusedhadsold
thechainandbangleofdeceasedJanakiTeacherintheArshithJewellery,Kannur
and a Bombay model necklace chain was sold in Krishna Jewels, Kannur, was
found tobeclinching.Thedisclosurestatementofthe1staccusedleadingtothe
recovery of the gold ingots was found to be eminently believable.
e)The saleconsiderationforthegoldsoldfromKrishnaJewelsgivento
the 1st accused by way of Ext.P43 cheque which was later encashed to the
accountofthe1staccusedmaintainedinSBI,CheemeniBranch,washeldtobea
strong link to connect 1st accused. Thedefenceevidenceadducedbyexamining
DW1 was found untrustworthy and an attempt to exculpate himself.
f )Theevidencethat1staccusedsoldornamentsstolenfromthehouse
of PW1 in various jewellery shops and the consequent recovery of the ingots
establishes theinvolvementofthe1staccusedintheoffenceofrobbery,andthe
individualstowhomtheornamentswereentrusted.Itwasheldthattheevidence
tendered was admissible under Section 114(a) and Section 27 of the Indian
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 19
g) Insofar as the 3rd accused (Arun Kumar. K.@Aruni)isconcerned,
the oral and documentary evidence adduced by the prosecution through PW87
(AssistantDirector(DNA))washeldsufficienttoprove,beyondreasonabledoubt,
thepresenceof3rdaccusedinthehouseofPW1on13.12.2017duringthecourse
of the robbery and assault. The recovery of MO11,amobilephonebelongingto
PW1, based on the disclosure statement made by the 1st accused from a brick
pond,wasyetanotherstrongcircumstancesupportingtheinvolvementofthe3rd
accused in the alleged robbery. The recovery of MO16, aknifeallegedlyusedto
inflict injuries on Janaki Teacher at the instance of the 3rd accused, was
considered another strong circumstance establishing his presence and
participation in the crime. MO15 Cherakathi (knife) recovered pursuant to the
disclosure statement made by the 3rd accused for breaking open the shelf was
found to beacorroborativecircumstancesupportingthecaseoftheprosecution.
Finally,Ext.P12copiesofIDproofpertainingtothe1staccusedandthemotherof
the 3rd accused entrusted with the Jewellery Shop at Hampankatta, Mangalore,
wereheldtobeconclusiveenoughinprovingthenexusbetweenthe1staccused
and the 3rd accused in the commission of the offence of robbery.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 20
h) The evidence let in by the prosecution by examining PW34, a
colleagueandfriendofthe3rddaccusedregardinghisinvolvementinthemurder
ofJanakiTeacherandtherobberycommittedinthehouseofPW1washeldtobe
relevant as an extra-judicial confession.
i) The Court, however, held that the prosecution had failed to prove
that the 1st accused had purchased MO2seriesmaskson05.12.2017orthathe
hadmanagedtoconcealthemasksina”paramba”.Theevidencetenderedbythe
prosecution regarding the recovery of MO2 series masks pursuant to the
confession statement of the 2nd accused was held to be doubtful.
j) The evidence tendered by the prosecution through PW1 was held
thoroughly insufficient to establish the identity of the 2nd accused. Though the
prosecution has set up a case that the 2nd accused purchased a mobile phone
through the online platform using the proceeds of the crime, the evidence
adduceddidnotestablishthesaidfact.Itwasheldthattheevidenceadducedwas
insufficient to link the 2nd accused with the crime.
The offences found to have been committed and the sentence imposed:
7. ThelearnedSessionsJudgefoundtheaccusedNos.1and3guiltyand
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 21
proceeded to convictandsentencethemtoundergoimprisonmentforlifeandto
pay a fine of ₹50,000/- (Rupees fifty thousand only) and in default to undergo
rigorousimprisonmentforaperiodofthreeyearsfortheoffencepunishableunder
Section 302 r/w. Section 34 of theIPC.Theywerefurthersentencedtoundergo
rigorous imprisonment for two years and to pay a fine of ₹25,000/- (Rupees
twenty five thousand only) and in default to undergo simple imprisonment fora
periodofsixmonthsfortheoffencepunishableunderSection452r/w.Section34
oftheIPC.Heisfurthersentencedtoundergorigorousimprisonmentforaperiod
of10yearsandtopayafineof₹25,000/-(Rupeestwentyfivethousandonly)and
indefaulttoundergosimpleimprisonmentforaperiodofoneyearfortheoffence
punishable under Section 394 r/w. Section 34 of the IPC. They were further
sentencedtoundergorigorousimprisonmentforaperiodoffiveyearsandtopay
afineof₹25,000/-(Rupeestwenty-fivethousandonly)andindefaulttoundergo
simple imprisonment for a period of one year for the offence punishable under
Section 307 r/w. Section 34 IPC.
8. The 2nd accused was acquitted of all charges.
9. Crl.ANo.124of2023ispreferredbythe1staccused,Crl.ANo.1086
of 2022 is preferred by the 3rd accused, Crl. A No. 358 of 2023 is filed by the
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 22
State against the order of acquittal of the 2nd accused and Crl. A(V)No.29of
2022 is filed by PW1, the victim, challenging the order of acquittal of the 2nd
accused.
10. WehaveheardSri.VishnuPrasadNair,thelearnedcounselappearing
for the 1st accused, Sri. Varghese, the learned counsel appearing for the 3rd
accused, Sri.Toufeeq, the learned counsel appearing for the victim, Sri. Siva
Kumar, the learned counsel appearing for the acquitted accusedandthelearned
Public Prosecutor.
Contentions raised by the appellants:
11. Weshallconsidertheappealsfiledbytheconvictedaccusedandthen
deal with the appeal filed by the victim. We shall deal with the evidence while
considering the contentions advanced by the learned counsel.
12. Sri.Vishnuprasad,thelearnedcounsel,submittedthatthecourterred
inplacingrelianceontheevidenceofPW1,thevictim,toconvictthe1staccused.
Though in the FI Statement furnished within a few hours of the alleged
occurrence,PW1hadnocasethatmaskedintrudershadcommittedtheoffenceof
robbery and murder, later, such a case was introduced. The appellants are
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 23
persons residing intheimmediatelocalityandknowntoPW1,and,ifthatbethe
case, he would certainly have stated their names and details at the earliest
opportunity. Thecourt,aftercarefulevaluationoftheevidence,disbelievedPW1
with regard to the identification of the accused with reference to their physical
features and the dresses worn by them. If that bethecase,theversionofPW1
oughttohavebeenseenwithsuspicion.Thefailureoftheinvestigatingagencyto
conductatestidentificationparadebasedonthedressesandphysicalfeaturesof
the accused was argued as fatal. According to the learned counsel, thoughthe
very same evidence was let in to rope the 2nd accused, the learned Sessions
Judge has disbelieved the same and has acquitted the said accused. This,
according to the learned counsel, is illegal. It was argued that mererecoveryof
currency from the house of a relative of the 1st accused ought not have been
taken as a circumstance to link him with the crime, particularly in view of the
absenceofanyconcreteevidencethatthecashrecoveredinfactbelongedtothe
1staccused. Evenotherwise,whilethecaseoftheprosecutionisthattherobbery
wascommittedonaccountoffinancialstringency,theallegedrecoveryofasumof
Rs.66,000/-morethantwomonthsaftertheincidentthrowsseriousdoubtsonthe
case of the prosecution. Recovery of ingots from various jewellery without
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 24
provingthatthegoldthatwasmeltedbelongedtocertainspecificindividualswas
argued as fatal. Non-examination of CW3 (Chandana), the wife of PW2, whose
bangleswereallegedlysoldinajewelleryshopatMangaloreandCW32(Habeeb),
theowneroftheJewelleryshop,wouldmaketherecoverydoubtful,contendsthe
learned counsel. It is urged that the recovery of MO9 (Pavithra Mothiram) and
MO10 (Thali) from the Payyanur Police Stationhasbeenconcoctedtoprobablise
the prosecution case and to link the 1st accused with thecrime. Thewitnesses
were tutored, and the bills and other documents were fabricated to rope in the
accused. Thediscrepancybetweentheweightsoftheornamentsrobbedandthe
ingots recovered was also highlighted by the learned counsel to bring home his
point that a conscious attempt was madebytheprosecutiontocreateevidence.
He would urge that the mere fact that the presence of accused Nos. 1 to 3 in
various parts of the Districts was seeninthetowerdumpdetailsisnoreasonto
conclude that they are the persons responsible for the robbery and murder.
Admittedly,accusedNos.1to3areresidingintheverysameneighbourhood,and
they are pursuing their respectiveavocationsinlife.Itisurgedthattherecovery
oftheornamentsaswellastheknivesattheinstanceofthe1staccusedhasnot
been proved in accordance with law. In order to substantiate his contentions,
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 25
reliancewasplacedontheobservationsinRamanandaliasNandlalBhartiVs.
State of Uttar Pradesh1 and in Subramanya v. State of Karnataka2. After
havingconclusivelyheldthattherecoveryofmasksanditsconcealmenthavenot
beenprovedandafterextendingthebenefitofthesametothe2ndaccused,the
learnedSessionsJudgehaserredinrelyingonotherpiecesofevidencetofindthe
accused Nos. 1 and 3 guilty of the offences.
13. Sri. Varghese, the learned counsel appearing for the 3rd accused,
pointed out that the learned Sessions Judge has erroneously found the said
accused guilty of the offence. He would urgethattheversionoftheprosecution
regardingthesequenceofeventswhichresultedinthedeathofJanakiTeacheris
diametrically opposite to the version of PW1 giveninExt.P1.Itisurgedthatthe
prosecution claim that the 3rd accused stole the mobile phone of PW1, and the
samewasrecovered,basedonthedisclosurestatementofthe3rdaccusedcannot
be believed. Itissubmittedthatitwasbroughtoutwhilecross-examiningPW15,
the mahazar witness, that the police were present atthespotfromthemorning
itself. In thatviewofthematter,therecoveryofthephonebasedonthealleged
disclosure statement given by the 3rd accused loses its authenticity. It is urged
1
[2022 SCC OnLine SC 1396]
2
[2022 SCC OnLine SC 1400]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 26
thattheallegedconfessionstatementwasnotprovedinaccordancewithlaw,and
furthermore, a perusal of the same would reveal that there is no authorship of
concealment.InsofarasMO15(Cherakathy),whichwasallegedlyusedbythe3rd
accused for opening the almirah is concerned, it was argued by the learned
counsel that the absence of paint or other remnants on it would falsify the
recovery. It cannot be believed that MO15 was struck on a bush, and thesame
was recovered at the instance of the 3rd accused. Hewouldalsochallengethe
recovery of MO16 (knife) alleged to have been used by the 3rd accused for
inflicting injuries on Janaki Teacher. It is urged by the learned counsel that the
failure of the forensic expert to detect the presence of blood on the knife
establishes in no uncertain terms that the recovery of the knife was
stage-managed.Thelearnedcounselwouldseriouslyobjecttothefindingsofthe
learned Sessions Judge as to the presence of DNA of the 3rd accused in MO18
tracksuit pants seized from theplaceofoccurrence.Thelearnedcounselpointed
out that though in the seizure mahazar it is stated that the blood sample taken
was sealed, when PW50, the staff nurse, who drew the sample, was examined,
has no suchcase.Itisurgedthatthebloodsamplewasinthepossessionofthe
InvestigatingOfficerforafewdays,and,ifthatbethecase,hecouldhaveeasily
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 27
manipulated the sample before forwarding the same to thelabforanalysis.Itis
urgedbythelearnedcounselthatbyinsistingthattheaccusedshouldfurnishan
explanation for the presence of manipulated DNA, serious injustice has been
caused.
14. Sri. Toufeeq, the learned counsel appearing for the victim, submitted
that the learned Sessions Judge has erred in acquitting the 2nd accused. It is
submitted that the statement of PW1 furnished immediately after the incident
disclosed the presence of three assailants. It is urged that the 2ndaccusedhad
conspiredwiththeotheraccusedtocommithousetrespass,robberyandmurder,
andhisrolewasclearlyrevealedfromhisassociationwiththe1staccusedandhis
joininginpurchasingthemasks.Hehadconcealedthemasks,andthesamewas
recovered based on his confession. He had purchased a mobilephoneusingthe
proceeds of the crime. He argued that the learned Sessions Judge ignored
relevant pieces of evidence while ordering the acquittal of the 2nd accused.
Though recovery could not be effected of the knife and torch based on the
disclosure statement of the 2nd accused, in view of the overwhelming evidence
linking him with the crime, such minor glitches in the evidence were to be ignored.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 28
15. The learned Public Prosecutor also challenged the order of acquittal
passed by the learned Sessions Judge in favour of the 2nd accused. It is
submitted that while the learned Sessions Judge properly appreciated the
evidence concerning accused Nos. 1 and 3, when it came to 2nd accused, very
vital aspects were ignored. She would point out thatthelearnedSessionsJudge
ought to haveheldasvalidtherecoveryofthemasksattheinstanceofthe2nd
accused,andthepurchaseofphonesusingtheill-gottencashhadbeenprovenin
accordance with law.
16. Sri. C.R. Sivakumar, the learned counsel appearing for the 2nd
accused, submitted that the learned Sessions Judgehadmeticulouslyconsidered
the prosecution allegations against the 2nd accused and, after a detailed
evaluation of the materials, had come to the conclusion that the evidence
presentedbytheprosecutioncannotbeaccepted.Itissubmittedthattherewere
serious discrepancies with regard to the purported identification of the 2nd
accusedbyPW1,andtherecoveryofMO2maskandalsotheknifeandheadlight,
allegedtohavebeenthrownbythe2ndaccusedintotheriver.Itissubmittedthat
the appeals filed by the State and the victim are meritless. The learnedcounsel
would also refer to the judgments rendered by the Apex Court in State of
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 29
Rajasthanv.RajaRam3,anditwasarguedthatthoughthereisnoembargoon
the Appellate Court reviewing the evidence upon which an order of acquittal is
based, generally, the order of acquittal shall not be interfered with because the
presumption of innocence of the accused is further strengthened by acquittal.
Eveniftwoviewsarepossibleontheevidenceadduced,onepointingtotheguilt
oftheaccusedandtheothertohisinnocence,theviewwhichisfavourabletothe
accused should be adopted.
17. We have carefully considered the submissions advanced and have
gone through the entire record.
Evaluation of the evidence:
18. WhetherthedeathofJanakiTeacherwasHomicidalandwhetherPW1
suffered injuries as alleged by the prosecution?
18.1 The first question that needs to be answered is whether the
prosecution has established by way of reliable evidence thatthedeathofJanaki
TeacherwashomicidalandwhetherPW1sufferedseriousinjuriesinthecourseof
an incident which took place after 9.45 p.m. on 13.12.2017. We may, at this
3
[A
IR 2003 SC 3601]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 30
stage, state that the defence is not seriously disputing the fact that Janaki had
died a homicidal death or that PW1 had suffered serious injuries. On theother
hand, the contention feebly advanced by them is that there were disputes
between PW1 and Janaki Teacher, and there is a distinct possibility that the
injurieswereinflictedbyPW1.Theirexplanationfortheinjuriesfoundonthebody
ofPW1isthattheyareself-inflicted.Toanswertheabovequestion,weshalldeal
with the evidence let in. PW52 (Jomi Joseph), the Senior Civil Police Officer,
reachedthehouseofPW1immediatelyaftertheincident,andinhisevidence,he
stated that he saw a lady sitting on a sofa in a pool of blood. She was found
bleeding from her neck, and her mouth was found tapedwithmaskingtape.He
statedthatPW1wasalsopresentinthehouse,andhewassittingonabedinthe
southwesterncornerbedroom.Hewasfoundbleedingfromhisneck. Onenquiry,
PW1toldtheofficerthatthreepersonshadrushedintothehouseandcommitted
robbery and attacked himandhiswife. TheevidencerevealsthatPW51(Prajith
P.V.) had also come to the house hearing the incident.
18.2. PW1,inhisevidence,statedthatthreeassailantshadtrespassedinto
hishouselateintheeveningon13.12.2017andcommittedthemurderofhiswife
andinflictedinjuriesonhim. HestatedthathemanagedtocallthePoliceStation
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 31
at Cheemeni and gave information. PW41 (Vinod K.V.), the Supervisor of the
Company run by PW2 (Mahesh K.), son of the deceased, had also reached the
spot on receiving information from PW2. PWs 41, 51 and 52 stated in graphic
detail what they had seen after arriving at the house of PW1. The evidence
tendered by PW41revealsthathewasaskedbythepolicepersonneltoshiftthe
injured to the hospital. Both PW1 and his wife were initially taken to the
Co-operative Hospital, Payyanur. The Doctor, after examining Janaki Teacher,
pronounced her dead. The records, however, disclosed that PW1 and Janaki
Teacher were then shifted to the Medical College Hospital, Pariyaram, in an
Ambulance. Treatment was provided to PW1 while the body of Janaki Teacher
was shifted to the mortuary.
18.3. PW75, the Professor of Forensic Medicine,PariyaramMedicalCollege
Hospital,conductedthepostmortemexaminationofJanaki. Henotedtwoincised
penetratingwounds;oneonthefrontofthelowerpartoftheneckjustabovethe
innerendoftherightcollarbone. Thesaidinjuryhadperforatedtheupperpartof
theupperlobeofthelung. Thesecondinjurywasanincisedpenetratingwound
whichcutthecarotidartery. TheDoctorhadopinedthatJanakihaddiedofstab
injuries to the neck involving the right lung and a major artery of the neck.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 32
Ext.P101 is the postmortem report proved through PW75. The defence hasnot
been able to challenge the evidence tendered by the Doctor. In view of the
findingsinExt.P101postmortemcertificateandtheevidencetenderedbyPW75,it
can be held withoutanysemblanceofdoubtthatJanakiTeacherdiedduetothe
stab injuries inflicted on her neckinthelatehoursof13.12.2017,andherdeath
was homicidal.
18.4. With respect to the injuries sustained by PW1, he has categorically
statedinhisevidencethatthesaidinjurieswereinflictedbythemaskedassailants
during the course of the incident. It is relevant to note that PW1 wasnearly80
years old at the time of the occurrence. PW76, the Assistant Professor in the
Department of EmergencyMedicineatPariyaramMedicalCollege,examinedPW1
andissuedthewoundcertificatemarkedasExt.P104.Thewoundcertificate,duly
proved through the testimony of PW76, records three incised wounds on PW1.
PW76deposedthatthewoundswerenotsurgicallyexploredashesuspectedthe
possibilityofamajorvesselinjuryintheneckregion.Heunequivocallystatedthat
all the injuries observed were grievous in nature. During cross-examination, a
specificsuggestionwasputforthbythelearneddefencecounselthattheinjuries
sustainedbyPW1wereself-inflicted.Thewitnessfirmlydeniedthesuggestionand
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 33
explained that the injuries were long and deep, andinhismedicalopinion,such
injuriescouldnothavebeenself-inflicted.Hefurtheropinedthattheinjuriescould
have been caused by any weapon similar to MO17(a).
18.5. Anotherwitnessexaminedbytheprosecutiontoestablishthenature
andextentoftheinjuriessustainedbyPW1isPW42,theCasualtyMedicalOfficer
at KMC Hospital, Mangalore. The Doctor deposed that he had examined PW1at
5:20a.m.on14.12.2017andhadissuedExt.P33WoundCertificate.Heobserved
extensivelacerationsontheneck,measuringapproximately25cminlength–deep
on the left side and superficial on the right. He further noted that the thyroid
cartilage was exposed, with the notch being visible and fractured. During
cross-examination,whenquestionedastowhethertheinjuriesweresuperficialin
nature, the Doctor categorically denied the suggestion, stating that the wounds
were not superficial,astheyhadpenetrateddeepenoughtodamagethemuscle
andveinontheleftsideoftheneck.Althoughthedefencehasadvancedatheory
thattheinjurieswereself-inflicted,itispertinenttonotethatnosuchsuggestion
wasputtothetreatingDoctorduringhisexamination.Intheabsenceofanysuch
confrontation, the contention lacks evidentiary value. In light of the medical
evidenceandtheunimpeachedtestimonyofPW42,itcanbesafelyconcludedthat
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 34
PW1 had sustained grievous stab injuries to his neck. The uncharitable and
implausible suggestion that an 80-year-old man murdered his wife and inflicted
suchseriousinjuriesuponhimselfisdevoidofmeritanddeservestobeoutrightly
rejected.
19. We shall now proceed to consider the evidence adduced by the
prosecution,beginningwiththetestimonyofPW1,inrelationtotheincidentthat
culminated in the robbery at the residential premises bearing No. VI/553 within
the limits of Kayyur-Cheemeni Panchayat,whichfurtherresultedinthehomicidal
death of Janaki Teacher and grievous injuriesuponPW1.Theevidencetendered
by PW1 is critical, as it forms the foundation of the prosecution’s narrative
regarding the sequence of events and the identity of the assailants.
19.1. This is a case in which the prosecution primarily relies on direct
evidence,namelytheoraltestimonyofPW1,whoisaninjuredeyewitness.Atthe
time of the incident, PW1 was present in the house along with his wife, Janaki,
when a robbery and brutal assault occurred at approximately 9:50 p.m. on
13.12.2017.Inhisdeposition,PW1statedthathewas82yearsoldatthetimeof
tendering evidenceinAugust2019,implyingthathewasaround81yearsofage
on the date of the incident.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 35
19.2 PW1 recounted that he and his wife had watched television until
around8p.m.,followingwhichhewentforabath.Theyhaddinnerandretiredto
theirrespectivebedroomsbyabout9p.m.Sometimethereafter,uponhearingthe
doorbell, both he and his wifecameoutintothecentralhall.Janakiswitchedon
the light, and PW1 went to open the door. He found three masked men,armed
with knives, who forcibly entered the house. One of the assailants, who was
slightlytallerthantheothers,pushedPW1totheground,heldaknifetohisneck,
andthreatenedtokillhimifhemadeanynoise.TheothertwostoodnearJanaki,
whocriedandpleadedwiththemtoleaveheralone.WhenPW1askedwhatthey
wanted, the taller assailant demanded money and asked him to reveal where it
was kept. The othertwoutteredthewords”Swarnam”(gold)andaskedinHindi
about the location of the money.
19.3 PW1 was then led to the bedroom. The assailant usedtheflashlight
on his mobile phone to guide theway.PW1tookakeyfromahandbaghanging
onthewall,switchedonthelight,openedadrawer,andhandedoverRs.50,000/-
incashandagoldring(PavithraMothiram)giftedtohimuponhisretirement.The
assailant then opened an iron shelf and awoodenboxbutfoundnothinginside.
Angered by this, he demanded more money and issued further threats. PW1
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 36
stated that the shortest of the three stood neartheroomwheretherefrigerator
was located. The taller assailant asked whether anyone was present upstairs.
WhenPW1saidno,hewasaskedforthelockerkeytotheshelfonthetopfloor.
PW1 replied that there was no locker, and the shorter man proceeded upstairs.
19.4 The tall assailant then ordered PW1 to lie onthebed,whichhedid.
Anothertallassailantenteredthebedroom,tookapairoftracksuitpantshanging
nearby, and tied PW1’s hands. The other man tied PW1’s legs with a ’thorthu’
(towel). Theyboththenlefttheroom.Atthispoint,theshortermanenteredthe
bedroom and stood guard.
19.5 Soon after, the first assailant who had pushed PW1 returned to the
room.Thepersonwhohadtiedhishandsdidnotreappear.Suddenly,PW1heard
hiswifescream,”Cheyyallappa!”Hethenrealizedthathiswifehadbeenattacked.
According to PW1, the tall assailant inflicted injuries on his neck with a small
knife–twocutsontheleftside.Whentheassailanttriedtostabhiminthechest,
PW1 cried out and begged for his life. The assailant relented and withdrew.
19.6 The intruders then took PW1’s mobile phone and a torch from the
bedside.PW1didnothearanyfurthernoises.Despitebleedingprofuselyfromthe
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 37
neck,hemanagedtofreehimself.Findinghisphonemissing,hewenttoJanaki’s
room and retrieved her phone. He then called the Cheemeni Police Station,
informed them of the incident, and requested immediate assistance. He madea
secondcalltothepoliceat11p.m.HealsocontactedPW2,hisyoungerson,who
informed him that he had alerted Vinod and Prajith and that they would be
arriving shortly.
19.7 The police arrived soon thereafter. When PW1 stepped outside, he
sawJanakilyingonthesofawithinjuriestoherneck.ThebystandersrushedPW1
totheCo-operativeHospital,Payyanur.Ontheway,PW41(Vinod)askedwhathad
happened, and PW1 narrated that three masked men had entered the house,
committed robbery, and inflicted injuries on both him and his wife.Hewaslater
transferred totheMedicalCollegeHospital,Pariyaram,wherehewasinformedof
Janaki’s demise.
19.8 PW1statedthatbythen,hewasextremelyfatigued.Whenthepolice
recorded his statement, he was unable to provide clear responses and mostly
nodded in reply. He added that he could not recall whether he specifically
mentioned that the assailants were masked, attributing this to his mental state,
advanced age,andthetraumaofwitnessinghiswife’sdeath.Hebelievedatthat
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 38
point that he, too, would die.
19.9. Subsequently, he was taken to KMC Hospital, Mangalapuram, where
he underwent surgery. His statement was recorded again later. Heidentifiedthe
masks shown to him by the police, as well as theThali(Mangalsutra),whichhe
recognised. He then identified the accused persons standing in the dock, along
withtheclothestheyworeduringtheincident.Healsoidentifiedvariousmaterial
objects recovered in the case, including: MO15 (cherakathi - sickle), MO9
(Pavithra Mothiram), MO10 (Thali), MO11 (Mobile Phone),MO12(Blouse),MO13
(Saree), MO14 (Skirt), MO17 series (Knives), MO18 (Tracksuit Pants),andMO19
(Thorthu).
19.10. He further stated that his statement was recorded by the learned
Magistrate. He clarified that while Ext.P1 recorded that he had witnessed the
assault on his wife, what he meant was that he heard her screams and was
convinced she had been stabbed, though he had not actually witnessed the
stabbing.
20. To corroboratetheversionofPW1,theprosecutionexaminedseveral
supporting witnesses. PW2, Mahesh, is the son of PW1. He deposed that he
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 39
receivedatelephonecallfromhisfather(PW1)onthenightof13.12.2017,made
fromhismother’smobilephone,informinghimabouttheincidentandrequesting
him to come home urgently. He confirmed PW1’s testimony regarding the said
callsandstatedthatheimmediatelyalertedPW41(VinodK.V.)andPW51(Prajith
P.V.), who are his friends andassociates.PW2furtherstatedthaton15.12.2017,
hereturnedtothefamilyhomeandconductedaninspection.Duringthecourseof
theinspection,hediscoveredthatcertainjewelleryitems,whichhehadpreviously
placedontheshelfoftheupstairsroom,weremissing.TheseincludedaBombay
model necklace weighing approximately 5¾ sovereigns and three bangles, each
weighingabout2sovereigns.Additionally,henoticedthathismother’sThalichain,
weighingaround2¾sovereigns,andabangleweighing1½sovereignswerealso
missingfromthehouse.Thiswasinadditiontohisfather’sPavithraMothiramand
a cash amount totalling Rs.92,000/-. He clarified that his parents were unaware
that he had kept his jewellery in the upstairs shelf. He also stated that his
statement was recorded by the police on 15.12.2017.
20.1. PW4(ShabinChand)isthegrandsonofPW1.HedeposedthatMO11
phone was given by him to his grandfather, and the same was stolen by the
assailants.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 40
20.2. PW41 (Vinod K.V.) is the company supervisor of PW2. He testified
thathereceivedacallfromPW2atabout11p.m.on13.12.2017aboutatheftin
the house of PW1. He immediatelyrushedtothehouseofPW1inhiscar.When
he reached there, PW51 (Prajith P.V.) and the Policemen werepresentthere.He
found Janaki Teacher with masking tape on her mouth and bleeding injuries on
her neck, and PW1 with bleeding injuries on hisneck,uponreachingthehouse.
OnthewaytothehospitalinthecardrivenbyRajan,PW1toldhimthatmasked
men entered the house with knives and committed robbery and assault.
20.3. PW51 (Prajith.P.V.) stated that he received information about the
incident from Ramachandran, PW1’s son-in-law. He reached PW1’s house in his
carwithhisfriendRajanand,asdirectedbythepolice,tookPW1andhiswifeto
Co-operativeHospital,Payyanur,inhiscar.HecorroboratedtheaccountsofPW41
regardingfindingtheinjuredhusbandandwifeandthesubsequentjourneytothe
hospital.HestatedthatheoverheardPW1tellingPW41aboutthetrespassbythe
masked intruders and the robbery and assault committed by them.
20.4. PW52(JomiJoseph)istheSeniorCivilPoliceOfficerattheCheemeni
PoliceStation.Hetestifiedthathewasonnightdutyon13.12.2017.Whilehewas
about to commence his duty, he was informed by the duty policeman that one
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 41
Krishnan Master had called and informed about the robbery. He, along with his
party,reachedPW1’shouse.Onenteringthehouse,hefoundthatJanakiTeacher
sitting in a pool of blood with her mouth taped shutbymaskingtape.PW1was
also found inside the house bleeding with injuries.Hestatedthatbareminimum
information was furnished by PW1 as he appeared to be very tired. He did not
probemuch.Theinjuredwasorderedtobeshiftedtothehospital,andheplaced
guards on duty.
20.5. PW90 (K.N. Ramanan) was the Sub Inspector of Police, Cheemeni,
who recorded the First Information Statement (Ext.P1) of PW1 fromtheMedical
College Hospital, Pariyaram, and registered the First Information Report
(Ext.P122). Hestatedthat,asdirectedbyaSuperiorOfficer,hehadinspectedthe
scene on 14.12.2017. He was also present when the expert from the Forensic
Science Lab and the Finger Print Bureau inspected the scene of crime. The nail
clippings and nail blood collected by the Doctor were seized as per Ext.P34
mahazar. Incross-examination,itisbroughtoutthatinExt.P1FIStatement,PW1
did not mention that the assailants wore masks. Certain omissions in the
statement of PW1 were marked through the said witness.
20.6. Seriouscontentionswereraisedbythelearnedcounselappearingfor
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 42
theappellants,challengingtheveracityoftheevidencetenderedbyPW1.Oneof
the principal arguments advanced was that there existed material discrepancies
and inconsistencies between the testimony of PW1 and the First Information
Statement. It was contended that PW1didnotmentionintheFIStatementthat
the intruders were wearing masks. Further, there was no reference in the said
statement to the robbery of Rs.42,000/-, the theft of his mobile phone, or the
torchlight. Although inhisoralevidence,PW1statedthattheassailantssnatched
thegoldchainwornbyhiswife,thisfactwasalsoomittedfromtheFIStatement.
TheFIStatement,recordedwithinhoursoftheincident,wasadmittedlybriefand
cryptic,whereashisdeposition,recordedmorethanayearlater,containedgreater
detail andelaboration.Additionally,whilePW1statedintheFIStatementthathe
saw the accused stabbinghiswife,duringhistestimony,heclarifiedthatheonly
heard her screams and inferred that she had been stabbed.
20.7. While assessing the significance of these omissions, it is crucial to
considerthephysicalandmentalconditionofPW1attherelevanttime.PW1was
81yearsoldon13.12.2017.Though,aspointedoutbySri.VishnuPrasad,theage
of PW1 is noted as 70 years in Ext.P104–Accident Register cum Wound
Certificate–PW1himselfclarifiedduringhisdepositionthathewasinhis80s,and
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 43
thisassertionwasnotchallengedincross-examination.PW1explainedthatatthe
time of giving the FI Statement to PW90, within three hours of the incident,he
was mentally traumatisedandphysicallyexhausted.Hestatedthatheresponded
to most of the questions merely by nodding. This is consistent with themedical
evidence: PW1hadsufferedmultipleneckinjuries,includingonedeeplaceration,
andPW42,theCasualtyMedicalOfficeratKMCHospital,Mangalore,hadtestified
that the Thyroid cartilagewasexposed,withthenotchvisibleandfractured.The
combined testimony of PW1 and PW90 reveals that the FI Statement was
recordedwhilePW1wasintheIntensiveCareUnit,shortlybeforehewasshifted
to Pariyaram Medical College and then to KMC Hospital, Mangalore. There is no
reason to doubt the account given by this octogenarian that he was enduring
intensepainandphysicaldistresswhenthestatementwasrecorded.Itmustalso
be remembered that his hands and legs had been tied by the assailants, and it
was only after they had left that PW1 managed to free himself and contact the
police using his wife’s mobile phone. Even a young andhealthyindividualwould
finditdifficulttoengageinadetailedconversationaftersustainingsuchgrievous
injuries, as documented in the woundcertificate.Furthermore,PW1hadbythen
receivedthedevastatingnewsofhiswife’sdeath.Giventhetraumaticandhorrific
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 44
nature of the incident, which had taken place only hours earlier, it would be
unrealistictoexpectadetailedandcoherentnarrationofeveryaspect.Thereisno
reasontodisbelievePW1’sversionthatherespondedbygesturesandthatPW90
recorded the same in his own words. On 16.12.2017, after PW1’s medical
condition had improved, he furnished a morecomprehensivestatement.Wealso
findnoreasontodiscreditthetestimoniesofPWs41and51,whostatedthatPW1
had toldthemaboutthemaskedintruderswhilebeingtakentothehospital.The
caserecordsshowthatthestatementsofbothPW41andPW51wererecordedon
15.12.2017, and in their depositions before the court, they confirmed that PW1
had disclosed to PW41 enroutetothehospitalthattheassailantsweremasked.
The additional statement of PW1 was recorded on 16.12.2017 while he was
undergoing treatment at KMC Hospital.
20.8. In Rattan Singh v. State of HP4, the Apex Court had held that
criminal courts should not be fastidious with mere omissions in the first
information statement, since such statements cannot be expected to be a
chronicleofeverydetailofwhathappened,nortocontainanexhaustivecatalogue
of the events which took place. The person who furnishes first information to
4
[(1997) 4 SCC 161]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 45
authoritiesmightbefreshwiththefacts,butheneednotnecessarilyhavetheskill
or ability to reproduce details of the entire story without anything missing
therefrom.Somemaymissevenimportantdetailsinanarration.Quiteoften,the
police officer, who takes down the first information, would record what the
informant conveys to him without resorting to any elicitation exercise. It is the
voluntarynarrativeoftheinformantwithoutinterrogation,whichusuallygoesinto
such a statement. So any omission therein has to be considered along with the
other evidence to determine whether the fact so omitted never happened at all.
20.9. Itwouldbewhollyunreasonabletoexpectanoctogenarian,whohad
just lost his wife and suffered grievous injuries to his neck,tofurnishadetailed
andall-encompassingaccountofanincidentthathadoccurredmerelythreehours
prior.Ext.P1wasrecordedatatimewhenPW1wasexperiencingprofusebleeding
from a deep neck injury and was in no physical or mental condition to provide
material particulars regarding the occurrence. As observed by the Hon’ble
Supreme Court in State of Rajasthan v. Kalki5, discrepancies may arise from
normal errors of observation,lapsesinmemoryowingtothepassageoftime,or
the mental state of the witness–suchasshock,trauma,orhorroratthetimeof
5
[(1981) 2 SCC 752]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 46
theevent.Suchinconsistenciesarenaturalandtobeexpectedinthetestimonyof
all witnesses, however honest or truthful they may be.
20.10. We are also not inclinedtoacceptthesubmissionthattheomission
on the part ofPW1tomentionspecificdetailsregardingthegoldornamentsand
cash at the earliest stage would render his testimony doubtful oruntrustworthy.
WithrespecttoMO1(PavithraMothiram),PW1,clearlystatedinhisevidencethat
it was gifted to him by his colleagues upon his retirement. This version stands
corroboratedbythetestimonyofPW45(BalakrishnanMaster),whoconfirmedthe
same. As for the sum of Rs.42,000/- allegedly robbed during the incident, the
prosecution has adduced supporting evidence by producing Ext.P71–Janaki
Teacher’s Treasury Savings Bank account details–and by examining PW62, the
Sub Treasury Officer, who deposed that a sum of Rs.42,000 was withdrawn by
chequeshortlybeforetheoccurrence.InrelationtoMO10(Thali),itcontainedthe
inscription ”OM” and was positively identified by both PW1 and PW2. Being the
husband and son of the deceased Janaki, it is only natural that they would be
familiar with the distinctive features of the Thali worn by her. As for the mobile
phone and the headlight, PW1 mentioned these items in his subsequent
statement, after he had regained some degree of composure. PW4 (Shabin
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 47
Chand),thegrandsonofPW1,corroboratedthisversionbystatinginhisevidence
that he had given MO11 (mobile phone) to PW1.
20.11. Much argument was advanced by the learned counsel that the
learned Sessions Judge, having disbelieved the version of PW1 with regard to
identificationoftheassailantsbytheirphysicalfeaturesandbythedresswornby
them, his entire evidence is to be eschewed. In essence, thesubmissionwasto
applytheprincipleof”falsusinunofalsusinomnibus”meaningfalseinonething
false in everything. As held by the Apex Court in Sayed Ibrahim v. State of
A.P.6,itisthedutyofthecourttoseparategrainfromchaff.Wherechaffcanbe
separated from grain, it would be open to the court to convict an accused
notwithstanding the fact that evidence has been found to be deficient, or to be
not wholly credible. The doctrine merely involves the question of weight of
evidence which a court may apply in a given set of circumstances, but it is not
what may be called a mandatory rule of evidence (See: Nisar Ali v. State Of
Uttar Pradesh7). Witnesses just cannot help in giving embroidery to a story,
however, true in the main. Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of acceptance, and merely because insome
6
[(2006) 10 SCC 601]
7
[AIR 1957 SC 366]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 48
respectsthecourtconsidersthesametobeinsufficientforplacingrelianceonthe
testimony of a witness, it does not necessarily follow as a matter of law that it
mustbedisregardedinallrespectaswell.Onlyincaseswhereitisnotfeasibleto
separatetruthfromfalsehood,andintheprocessofseparationanabsolutelynew
case has to be reconstructed by divorcing essential details presented by the
prosecution completely different from the context and the background against
which they are made, can the evidence be discarded in toto. (See: Zwinglee
Ariel v. State of M.P8, Balaka Singh v. State ofPunjab9) .
20.12. In light of theprinciplesdiscussedabove,wehavenohesitationin
concluding that the sequence of events that transpired after 9:00 p.m. on
13.12.2017, the overt acts committed by the masked assailants, and theassault
that tookplaceduringthecourseoftherobberyarewhollycredible.Noneofthe
contentions raised on behalf of the defence, which seek to cast doubt on this
version,canbeaccepted.Further,theevidencetenderedbyPW1,PW2,andPW4,
when read in conjunction with the testimony of the Treasury Officer (PW62),
clearlyestablishesbeyondreasonabledoubtthattheassailantscommittedrobbery
involving Rs.92,000/- incash,agoldring(PavithraMothiram),amobilephone,a
8
[A IR 1954 SC 15]
9
[( 1975) 4 SCC 511]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 49
headlight, and a Thali chain belonging to Janaki Teacher. As for the veracity of
PW1’s statement that all theassailantswerearmedwithknives,itispertinentto
notethatExt.P1explicitlymentionsthattheassailantsusedknivestoassaultboth
PW1andhiswife.ThisaccountiscorroboratedbyPW41,whodeposedthatPW1
informedhimduringtheirjourneytothehospitalthattheassailantswerecarrying
knives and had stabbed them. The testimony of PW51, who overheard this
conversation, further corroborates the same. Such contemporaneous utterances
made by PW1 form part oftheresgestaeandareadmissibleunderSection6of
the Indian Evidence Act, 1872. In our considered view, the prosecution has
succeeded in adducing cogent and reliable evidence through the testimonies of
PW1,PW41,andPW51,toestablishthatthethreeassailantswerewearingmasks
and were armed with knives at the time of the incident.
20.13. It would be apposite to take note of the fact that the learned
Sessions Judge declined to place reliance on the portion of PW1’s evidence
wherein he purported to identify accused Nos. 1 to 3 based on their physical
featuresandtheclothesallegedlywornbythematthetimeoftheincident.Upon
a thorough re-appreciation of the evidence on record, we find no reason to
interfere with this finding.
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Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 50
20.14. The primary reason for such a conclusion stems from PW1’s own
consistent assertion that the assailants were wearing masks when they forcibly
enteredthehouse.WhilePW1deposedthathecouldidentifyaccusedNos.1to3
by their physical features, it is evident from his earlier statements that the only
distinguishing features he mentioned were that one of the assailants was taller
and another was shorter than the rest. The learned Sessions Judge rightly held
that height alone cannot be considered a sufficient physical attribute for
identification, particularly when PW1 himself admitted that all the assailantshad
their faces covered with masks during the incident.
20.15. TheSessionsCourtfurthernotedthatPW1wasnotinapositionto
observe any other distinctive physical features that could enable a reliable
identification. Moreover, accused Nos. 1 to 3 were apprehended nearly 70 days
after the incident, and it is significant that prior to their arrest, PW1 did not
harbour any suspicion regarding their involvement in the offence.
20.16. The learned Sessions Judge also observed that the failure of the
prosecutiontoconductaproperTestIdentificationParadewasaseriouslacunain
the investigation. Although the prosecution contends that PW1 identified the
accused at the Police Station, such identification lacks evidentiary value in the
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 51
absence of a duly conducted Test Identification Parade. A proper identification
parade, wherein the suspects and non-suspects were directed to wear similar
masks to neutralise suggestibility, was not conducted. This procedural lapse, as
rightly noted by the Trial court, undermines the credibility of the purported
identification. We, therefore, find ourselves in agreement with the conclusions
arrivedatbythelearnedSessionsJudgeonthiscountandholdthatthefailureto
conduct a valid Test Identification Parade vitiates the evidentiary value of PW1’s
identification of accused Nos. 1 to 3 in court.
20.17. The learned Sessions Judge declined toaccepttheidentificationof
the accused based on the clothes allegedly worn by them at the time of the
occurrence. Wefindnoreasontodifferfromthisconclusion.Followingthearrest
oftheaccused,therecoveryofMOs3to8waseffectedpursuanttoconfessional
statements made by the accused under Section 27 of the Indian Evidence Act.
MO3(kavimundu)andMO4(blackshirt)allegedlywornbythe1staccusedatthe
time of the incident, were recovered based on Ext.P165–the confessional
statementgivenbythe1staccused–fromanalmirahinthebedroomofabuilding
bearingDoorNo.VI/508.Similarly,MO5andMO6,comprisingacheckshirtanda
lungi purportedly worn by the 2nd accused, were recovered by PW94 based on
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 52
Ext.P163,theconfessionalstatementofthe2ndaccused,fromaclothesstandin
the bedroom of ahousebearingDoorNo.VI/527atCheerkkulam.MOs7and8,
being a pair of black Puma brand tracksuit pants and a red Polo T-shirt, were
recovered from the bedroom situated in the north-western corner of the house
bearing Door No.VI/520 of Kayyur-Cheemeni Grama Panchayat, pursuant to
Ext.P170, the confessional statement of the 3rd accused. To corroborate the
recoveryofMOs3to8,theprosecutionexaminedPW10(ShyjuP.V.),PW8(Manoj
K.A.), and PW14 (Rijin Krishna T.P.), who supported the testimony of PW94
regarding the recoveries.
20.18. WhenPW1wasexamined,hestatedthathehadbeensummonedto
the Police Station and was able to identify accused Nos. 1 to 3 based on their
physical features. However, aclosereadingoftheFirstInformationStatementas
wellashisoraltestimonyrevealsnoindicationthatPW1hadobservedanyspecific
or peculiar physical features of the intruders that would have enabled him to
identify them at a later point in time. Apart from his vague reference to one
assailant being taller than the others and another being shorter, his statement
lacks any meaningful descriptive detail. The fact that all three assailants were
wearing masks during the incident significantly undermines the reliability of any
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 53
subsequentidentification.Furthermore,PW1wasaseniorcitizenatthetime,and
his advanced age and the trauma he had suffered may have affected his
perceptive faculties, making accurate identification even less likely.
20.19. In Ramanathan v State of Tamil Nadu10, the Apex Court had
occasion to lucidly observe the purpose for which Test Identification Parade is
held. Itwasheldthatidentificationparadeshavebeenincommonuseforavery
long time, for the object of placing a suspectinaline-upwithotherpersonsfor
identification is to find out whether he istheperpetratorofthecrime.Thisisall
the more necessary where the name of the offender is not mentioned by those
who claim to be eye-witnesses of the incident but theyclaimthatalthoughthey
did not know him earlier, they could recall his features in sufficient details and
wouldbeabletoidentifyhimifandwhentheyhappenedtoseehim.Theholding
ofatestidentificationinsuchcasesisasmuchintheinterestoftheinvestigating
agency or the prosecution as in the interest of the suspect or the accused. For
while itenablestheinvestigatingofficertoascertainthecorrectnessorotherwise
of the claim of those witnesses who claim to have seen the perpetrator of the
crimeandtheircapacitytoidentifyhimandtherebyfillthegapintheinvestigation
10
[(1978) 3 SCC 86]
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Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 54
regarding theidentityoftheculprit,itsavesthesuspectortheaccusedfromthe
sudden risk of being identified in the dock by the same witnesses during the
course of the trial. The line-up of the suspect in a test identification parade is
thereforeaworkablewayoftestingthememoryandveracityofwitnessesinsuch
cases and has worked well in actual practice.
20.20. In Sampat Tatyada Shinde v. State OfMaharashtra11,itwas
held that the evidence of test identification is admissible under Section 9 of the
Evidence Act is, at best, supportingevidence.Itcanbeusedonlytocorroborate
the substantive evidence given by the witnesses inCourtregardingidentification
of the accused as thedoerofthecriminalact.Theearlieridentificationmadeby
thewitnessesatthetestidentificationparade,byitself,hasnoindependentvalue.
Noristestidentificationtheonlytypeofevidencethatcanbetenderedtoconfirm
theevidenceofawitnessregardingidentificationoftheaccused,inCourt,asthe
perpetrator of the crime.
20.21. It is by now settled that the purpose of a prior Test Identification
Parade is to test and strengthen the trustworthiness of that evidence. Courts
generallylookforcorroborationofthesoletestimonyofthewitnessesincourtso
11
[1
974 AIR SC 791]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 55
as to fix the identity of the accused who are strangers to them in the form of
earlier identification proceedings. This rule of prudence, however, is subject to
exceptions, when, for example, the courtisimpressedbyaparticularwitnesson
whosetestimonyitcansafelyrely,withoutsuchorothercorroboration.Ithasalso
to be borne in mindthattheaspectofidentificationparadebelongstothestage
ofinvestigation,andthereisnoprovisionintheCodeofCriminalProcedurewhich
obliges the investigating agency to hold, or confers a right upon the accusedto
claim,atestidentificationparade.Merefailuretoholdatestidentificationparade
wouldnotmakeinadmissibleevidenceofidentificationincourt.Whatweightisto
beattachedtosuchidentificationisamatterforthecourtsoffacttoexamine.In
appropriate cases, it may accept the evidence of identification even without
insisting on corroboration (See:Malkhansingh v. Stateof M.P12 ).
20.22. Applying theprincipleslaiddownabove,wefinditdifficulttoplace
reliance on the identification of the accused by PW1 at the Police Station,
particularly in view of the fact that the Investigating Officer did not consider it
necessarytoconductaTestIdentificationParadetoconfirmthewitness’sabilityto
identify the accused as theperpetratorsofthecrime.Insuchcircumstances,the
12
[(2003) 5 SCC 746].
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 56
identification made by PW1 at the Police Station cannot be assigned significant
evidentiary value. Furthermore,MOs3to8compriseordinaryclothingcommonly
wornbythegeneralpublic,andthereisnothingdistinctiveorpeculiaraboutthese
garmentsthatwouldenablePW1toidentifytheaccusedafteralapseofoneand
a half years from the date of the incident. It is also relevant to note that the
description of the clothing allegedly worn by the accused was furnishedbyPW1
only in his additional statement recorded on 16.12.2017, several days after the
incident. Moreover,althoughtherecoveredclothesweresentforforensicanalysis
todetectthepresenceofblood,Ext.P116report,provedthroughthetestimonyof
PW87,confirmsthatnobloodstainsweredetectedonthegarments.Inlightofthe
foregoing, we are of the considered viewthatitwouldnotbesafetoacceptthe
prosecutioncaseregardingtheidentificationofaccusedNos.1to3basedonMOs
3to8,beingtheclothesallegedtohavebeenwornbytheaccusedatthetimeof
the occurrence.
Seizure of Stolen Property, proceeds and Weapons Based on the
Confessional Statements of the 1st accused:
21. As already noted, the gruesome crime was committed onthenightof
13.12.2017, and the identity of the perpetrators remained unknown in the
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 57
immediate aftermath. However, given the substantial quantity of gold that had
been stolen, the investigating team, as part of routine investigative measures,
alerted jewellerswithinandoutsidetheDistricttoreportanysuspiciousattempts
to sell old gold. A breakthrough was secured when PW94, the Investigating
Officer, received discreet information on21.02.2018indicatingthatoneVishak,a
resident of Puliyannoor, had sold gold ornaments at a jewellery store in Kannur.
Acting on this intelligence, and after preparing Ext.P154–Advance Search
Memorandum–andforwardingthesametotheCourt,asearchwasconductedat
House No. VI/509, Cheerkkulam, within Cheemeni GramaPanchayat.Thesearch
wasconductedinthepresenceofSathiV.V.,wifeofRamachandranandmotherof
the1staccused.Duringthesearch,areceiptwasrecoveredfromasteelalmirah,
which revealed that Vishak hadsold46.170gramsofgoldto”KrishnaJewels”at
Kannuron15.02.2018.Ext.P3isthesearchlist,andExt.P3(a)bearsthesignature
of Sathi, acknowledging the same. Ext.P2 is the copy of the said invoice, and
Ext.P155(FormNo.15preparedunderRule263oftheCriminalRulesofPractice)
confirms that the invoice was produced before the jurisdictional court without
delay. Followingthis,Vishakwastakenintocustodyon21.02.2018,asevidenced
byExt.P68(ArrestMemo)andExt.P156(InspectionMemo).Duringtheinspection,
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 58
a Samsungmobilephone(MO49),whichwasbeingusedbythe1staccusedwas
seized and produced before the Court. This seizure is supported by Ext.P157.
21.1. PW94, the Investigating Officer, deposed that upon the arrest and
custodialinterrogationofthe1staccused,hedisclosedtheinvolvementofaccused
Nos.2and3inthecrime.Basedonthisdisclosure,2ndaccusedwasarrestedon
21.02.2018, as evidenced by Ext.P69 (Arrest Memo). At the time of his arrest,
MO28–anHonormobilephone–wasfoundinhispossessionandwasseized.The
seizure was documented under Ext.P160 (Property List). In addition, a certain
amount of cash was also recovered from the 2nd accused during the search.
Further, Ext.P161 is the report submitted by PW94 to the jurisdictional court on
21.02.2018, furnishingtheresidentialaddressesofaccusedNos.1to3.Thesaid
report was duly received by the Court on 22.02.2018.
21.2. Now we shall consider the evidence relating to the seizure of gold,
cash, and other stolen articles, and examine whether the prosecution has
establishedtherecoveriesinaccordancewithlaw.Attheoutset,itisnecessaryto
bear in mind that the case of the prosecution hinges on the recovery of these
items based on disclosure statements made by the accused under Section27of
theIndianEvidenceAct.Thiscaseinvolvesacoordinatedactbyagroupofyoung
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 59
men who trespassed into a residence occupied by senior citizens, committed
robbery,andinflictedabrutalassault,resultinginthedeathofoneoccupantand
grievous injuries to the other. The prosecution has specifically pleaded that the
acts of robbery and murder formed part of the same transaction, and that the
material objects recovered, such as gold ornaments, cash, and other personal
belongings, are closely and integrally connected to the said incident.
21.3. In Baiju AliasBharosav.StateOfMadhyaPradesh13,theApex
Courthadoccasiontoobservethatiftheprosecutionsucceedsinprovingbeyond
anydoubtthatthecommissionofthemurdersandtherobberyformedpartofone
transaction,thentherecentandunexplainedpossessionofthestolenpropertyby
theaccusedwilljustifythepresumptionthatitwashe,andnooneelse,whohad
committed the murders and the robbery. The question whether a presumption
should be drawn under Illustration (a) of Section 114 of the Evidence Act is a
matterwhichdependsontheevidenceandthecircumstancesofeachcase.Thus
the nature of the stolen article, the manner of its acquisition by the owner, the
nature of the evidence about its identification, the manner in which itwasdealt
with bytheappellant,theplaceandthecircumstancesofitsrecovery,thelength
13
[1
978 AIR SC 522]
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Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 60
of the intervening period, the ability or otherwise of the appellant toexplainhis
possession, are factors which havetobetakenintoconsiderationinarrivingata
decision.Thequestionthatistobeconsiderediswhetherthereisanyjustification
for reaching the most important conclusion that it was the accused before the
court and no one else who had committed the murder and the robbery.
21.4. In Earabhadrappa v. State of Karnataka14, the question was
whether in a case where murder and robbery had been proved to have been
integral parts of one and the same transaction, whetherthepresumptionarising
under Illustration (a)toSection114oftheEvidenceActcouldbeapplied.Itwas
heldthatiftheaccusedhadnosatisfactoryexplanationtoofferforhispossession
ofthestolenproperty,andifafalsedenialismadeabouttherecoveriesmadeat
the instance of the accused, it by itself is an incriminating circumstance. The
nature of presumption under Illustration (a) to Section 114 would depend upon
the nature of the evidence adduced. No fixed time limit can be laid down to
determine whether possession is recent or otherwise, and each case has to be
judged on its own facts. The question as to what amounts to recentpossession
sufficienttojustifythepresumptionofguiltvariesaccordingasthestolenarticleis
14
[(1983) 2 SCC 330 ]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 61
or is not calculated to pass readily from hand to hand.
21.5. InSanjayandOrs.vs.TheState(NCC.T.ofDelhi)15,itwasheld
that besides Section 27, the courts can draw presumptions under Section 114,
Illustration (a) and Section 106 of the Evidence Act.
21.6. InGulabChandv.StateofM.P.16,theApexCourtheldthatsimply
on the recovery of stolen articles, no inference can be drawn that a person in
possessionofthestolenarticlesisguiltyoftheoffenceofmurderandrobbery.But
culpabilityfortheaforesaidoffenceswilldependonthefactsandcircumstancesof
the case and the nature of evidence adduced. ReferringtoSanwatKhanand
KalooKhanv.StateofRajasthan17, itwasheldthatinacaseofrecoveryof
stolen articles inacaseofrobberyandmurder,nohardandfastrulecanbelaid
down as to what inference should be drawn from such circumstances. It was
observed that where only evidence against the accused is recovery of stolen
properties, then although the circumstances may indicate that the theft and
murder might have been committed at the same time, it is not safe to drawan
15
(2001) 3 SCC 190
16
[1995] 3 SCR 27
17
[A
IR 1956 SC 54]
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Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 62
inferencethatthepersoninpossessionofthestolenpropertyhadcommittedthe
murder.AnoteofcautionwasgivenbytheApexCourtbyindicatingthatsuspicion
should not take the place of proof.
21.7. Inthelightoftheprinciplesabove,weshalldealwiththeevidencelet
in by the prosecution to prove the complicity of the accused. Insofar as the 1st
accused is concerned, these are the circumstances that are projected by the
prosecution. We shall deal with the same one by one.
Recovery of MO9 and MO10 at the instance of the 1st accused:
22. PW94, the InvestigatingOfficer,deposedthaton16.02.2018,the1st
accused attempted to sell MO9 (Pavithra Mothiram) and MO10 (Thali) at a
jewellery shop in Payyanur named ”Puthiya Valappil Gold.” To establish thisfact,
theprosecutionexaminedPWs11,13,56,57,69,and94.PW11,theownerofthe
said jewellery shop, testified that the 1st accused came to his shop and, after
handing over MOs 9 and 10, asked him whether the ornaments were made of
gold. Upon verifying their purity, PW11 inquired about their source. The 1st
accusedvaguelystatedthathehad”found”theornamentswhichapparentlywas
an attempt to pass them off as abandoned property. Sensing something
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suspicious, PW11 advised the 1st accused to hand them over to the police and
promptly informed PW13, the local Ward Councillor. PW13, in turn, alerted the
police. PW11 stated that duringtheinterregnum,the1staccusedsteppedoutof
the shop on the pretextofdrinkingwaterandabsconded.PW57,theSeniorCivil
Police Officer (SCPO) at Payyanur Police Station, collected the ornaments from
PW11 and returned to the Station. He handed them over to the Station House
OfficeraftermakingnecessaryentriesintheStationGeneralDiary(Ext.P60).The
relevantentryatSerialNo.17wasmarkedseparatelyasExt.P60(a).PW57further
statedthatheweighedtheornaments.MO9wasfoundtoweigh7.200grams,and
MO10, which bore the inscription “OM,” weighed 2.330 grams.
22.1. PW94furthertestifiedthat,whileincustody,the1staccusedmadea
disclosure statement which led the police to the jewelleryshop”PuthiyaValappil
Gold”andconfirmedthefailedattempttosellthegold.Adefencecontentionwas
raised that the disclosure made by the 1st accused was involuntary and thatno
recovery was effected based on the same. It was also argued that it was
inconceivable that the Payyanur Police, despite receiving information of an
attemptedsaleofgoldundersuspiciouscircumstances,didnotregisteraseparate
crime.
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22.2. Wearenotpersuadedbythisargument.PW11clearlystatedthatthe
goldornamentswerebroughtinbyaself-identified”finder,”andwhenadvisedto
inform the police, the 1st accused did not object or demand the articles back.
There is every likelihood that the 1st accused was taken aback when PW11
suggestedthatthegoldbehandedovertothepoliceandinformedtheCouncillor
then and there. The finder had no other option but to flee as he risked being
identifiedbythepoliceandlinkedtothecrime.Thepolice,inturn,madeanentry
in the General Diary, possibly anticipating that the true owner might later come
forward. We do not find that the failure to register a separate crime, in these
circumstances, weakens the case of the prosecution.
22.3. Inthiscontext,itwouldbepertinenttonotethattheprosecutionhas
examinedPW69,theNodalOfficer,BSNL,toprovethatthe1staccusedwasfound
in and around the Payyanur area on 16.02.2018, the day on which the attempt
wasmadetosellthegold.Payyanurisaplaceabout20kmawayfromCheemeni,
the place where the1staccusedresides.PW69gaveevidence,andthroughhim,
Ext.P87 Customer Application Form and an ID proof of Mobile phone bearing
Number ”9447246141″, were marked as Ext.P87. He has also produced the Call
DataRecordsandTowerDumpDetailsoftheabovemobilephone,andthesame
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wasmarkedasExt.P86.Ext.P88isthecertificateissuedunderSection65Bofthe
Indian Evidence Act. PW94 gave evidence that the tower location of the above
mobile phone used by the 1st accused was Payyanur New Bus Stand.
22.4. We arenotpersuadedbythedefencesubmissionthatMOs9and10
are ordinary ornaments with no distinguishing features and that they were
fabricated by the police to falsely implicate the accused. The prosecution
examinedPW45(E.V.BalakrishnanMaster),whodeposedthathewasacolleague
of PW1 and that MO9 (Pavithra Mothiram) was presented to PW1 upon his
retirementinMarch1993.Notably,thereceptacleinwhichthePavithraMothiram
was stored was seized andrecordedintheSceneMahazarpreparedimmediately
after the incident.PW1reaffirmedthatMO9belongedtohimandthatitwasthe
same ring that ultimately came into the custody of the Payyanur Police. As for
MO10(Thali),PW1identifieditastheThaliwornbyhislatewife,JanakiTeacher.
PW2, their son, also corroborated that MO10 belonged to his mother. Thus, the
combined evidence of PWs 1, 2, 11, 13, 45, 56, 57, and 94 clearly establishes
beyond reasonable doubt that MOs 9 and 10–ornaments belonging toPW1and
thedeceasedandrobbedfromtheirhome–wereattemptedtobesoldbythe1st
accusedon16.02.2018and,inthemannernarratedbytheprosecution,cameinto
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policecustody.Thisversionofeventsisfurthercorroboratedbythemobiletower
locationevidencetenderedbyPW69,whichplacesthe1staccusedinandaround
the scene. We hold that the recovery of MOs 9 and 10 based on the disclosure
made by the 1st accused constitutes a strong and reliable link in the chain of
circumstantial evidence connecting the said accused to the offences of robbery
and murder.
Recovery of MO25 gold ingot at the instance of the 1st accused:
23. ThenextlinkistherecoveryofaBombaymodelgoldchainweighing
about 5½ sovereigns at the instance of the 1st accused. PW2, inhisevidence,
statedthatthegoldornamentsbelongingtohiswifewererobbedbytheaccused.
In his evidence, he had stated that, on 15.12.2017, he went back to the house
where the incident had happened and foundthattheornamentsbelongedtohis
wife such as a Bombay model chain weighing 5¾ sovereigns and 3 bangles
weighing 2 sovereigns each were found missing from the shelf in the upstair
room, where the samewaskept.TheevidencetenderedbyPW49,theSecretary
of Cheemeni Service Co-operative Bank, reveals that PW2 was maintaining a
locker.Throughhim,Ext.P52Ledgerextractwasmarked,whichrevealedthatthe
locker had been opened by PW2 on 18.11.2017. The extract reveals that the
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locker is maintained by PW2 and his wife, Chandhini. PW94, in his evidence,
reveals that the 1staccusedattemptedtoselltheBombaymodelgoldchainina
Jewellery Shop by the name ”Gold Point” at Taliparamba. PW26(BabuP.K.),the
owner of Gold Point, stated in his evidence that the 1st accused had brought a
Bombay model gold chain to sell the same. When he asked about his
whereabouts, the 1st accused toldhimthathewasfromCheemeni.Heenquired
as to why a person residing in a far-off place would want to sell the gold at
Taliparamba.Tothesaidquery,the1staccusedrespondedbystatingthathehas
a relative residing in the area, and stated that the chain belonged to his wife.
PW26 then asked him to share his wife’s phone number. In response, the 1st
accusedstatedthathiswifewasstudyinginaCollegeandwouldnotbeavailable
on the phone. Since the 1st accused was not apersonfromthearea,andsince
thejewelleryshopownerdidnotrequirecashtopurchasethe5.5sovereigngold
chain,hesuggestedthatthegoldbesoldat”KunjikannanJewellery”atKannur,as
the inscription in the gold chain revealed thatthesamewaspurchasedfromthe
saidjewellery.Thoughthesaidwitnesswascross-examined,thedefencewasnot
able to shake his evidence.
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23.1. PW94 also testified that the 1st accused, during interrogation,
confessed to having sold the gold chain at ”Krishna Jewels,” Kannur (formerly
Kunjikannan Jewellery). Acting on Ext.P191, the disclosure statement, the police
accompaniedthe1staccusedtoKrishnaJewels.PW27,theManageroftheshop,
confirmed that the 1st accused visited on 15.02.2018 and sold aBombaymodel
goldchainweighing46.170grams.TheornamentwasvaluedatRs.1,29,970/-,for
whichanaccountpayeechequewasissuedinthenameofthe1staccused.PW27
testified that the cheque was later presented at the State Bank of Travancore
(SBT),CheemeniBranch.Bythen,thegoldhadalreadybeenmeltedintoaningot,
which was marked as MO25. Through PW27, Ext.P2 (purchase invoice) and
Ext.P21 (computer-generated copy) were produced. Ext.P2 listed the customer
name as ”Vishak V.V., Valiyaveedu House, Cheemeni,” with the amount as
Rs.1,29,970/-. The property list was marked as Ext.P192.
23.2. Tocorroboratethepresenceofthe1staccusedinKannuronthedate
of the sale, the prosecution examined PW69, the Nodal Officer of BSNL. He
confirmed that mobile number 9447246141 seized from the 1st accused at the
time of his arrest was located under tower coverage at Kannur New Bus Stand,
BPCL, and S.K. Complex on 15.02.2018. PW48, the Manager of SBT, Cheemeni
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Branch,furtherconfirmedthatthecheque(Ext.P43),dated15.02.2018andissued
by Krishna Jewels, was presented by the 1st accused, and Rs.1,29,970/- was
credited to his account on 19.02.2018.
23.4. The defence examined DW1 (Indira V.V.), the elder sister of the
motherofthe1staccused,tosuggestanalternativeexplanation.Accordingtoher,
she had entrusted two gold chains to the 1st accused for sale, as she was in
urgent need of funds to rebuild her dilapidated house. She claimed the cheque
and invoiceremainedwithheruntiltheywereallegedlytakenawaybythepolice
after the arrestofthe1staccused.Wearenotinclinedtoaccepttheversionput
forth by DW1. Her testimony, recorded on 10.01.2020, suffers from inherent
inconsistencies.Whilesheclaimedthepolicetookawaythedocumentsafewdays
after the arrest of the 1st accused on 21.02.2018, thechequehadalreadybeen
presentedandencashedbythe1staccusedon19.02.2018.Ifthechequeindeed
belongedtoherandwasobtainedundersuchcircumstances,itisimplausiblethat
she would not have lodged a complaint when the funds were withdrawn. Her
silence and lack of action cast serious doubt on the credibility of her version. It
appears that DW1’s testimonywasdesignedtoprojectanalternativenarrativein
the face of overwhelming evidence against the 1st accused.
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23.5. A feeble argument was also advanced that the non-examination of
PW2’s wife was fatal to the prosecution. It was contended that only she could
identify her jewellery. We find no merit in this submission. PW2’s testimony
regarding the jewellery is cogent, credible, and sufficiently detailed. There is no
legal principle that bars a husband from testifying to the ownership of property
jointly maintained in the household.
23.6. In view of theabove,wearesatisfiedthattheevidencetenderedby
PWs 2, 26, 27, 48, and 69, taken together,establishesbeyondreasonabledoubt
thataBombay-modelgoldchainbelongingtoPW2’swifewasrobbedfromPW1’s
house and subsequently sold by the 1st accused at Krishna Jewels,Kannur.The
proceedsofthesalewerecreditedtotheaccountofthe1staccused,formingyet
another strong link in the chain of circumstantial evidence that connectsthe1st
accused to the offences of robbery and murder.
Recovery of gold ingot (MO22) at the instance of the 1st accused:
24. The next piece of evidence projected by the prosecution to
demonstrate the strong involvement of the 1staccusedistherecoveryofagold
ingot (MO22), alleged to have been formed from three gold bangles sold at a
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jewellery shop in Hampankatta, Mangalore. PW94, the Investigating Officer,
deposed that during custodial interrogation, the 1st accused made a disclosure
regarding the sale of the bangles in Mangalore. The relevant portion of the
confessional statement was marked as Ext.P183. Acting on this statement, the
police, led by the 1st accused, proceeded to a jewellery shop named ”Jewel
House” in Hampankatta, Mangalore. The prosecution examined PW17, the
Manager of the said jewellery shop. He testified that accused Nos. 1 and 2 had
visited the shop on 04.01.2018 with three gold bangles and stated that they
required money for themedicaltreatmentofthemotherofthe1staccused.The
owneroftheshop,Habeeb(CW32),wasalsopresentatthetime.Astheaccused
failedtoproduceidentityproofduringtheinitialvisit,thegoldwasnotpurchased.
However, about four days later, accused Nos. 1 and 2 returned to the shopand
produced identity cards–one belonging to the 1st accused and the other to
Devaki K. (the mother ofthe3rdaccused).Ext.P12seriesarecopiesoftheseID
cards, which were retained by the shop after verifying with the originals. PW17
furtherstatedthatthebangleswerethenmeltedandconvertedintoasingleingot
(MO22).
24.1. Tofurthercorroboratethepresenceoftheaccusedneartheshop,the
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prosecution examined PW91, the Nodal Officer of Vodafone-Idea Ltd., Kerala
Circle.HeconfirmedthatmobileNo.”8606156141″wasregisteredinthenameof
Vishak V.V., S/o Ramachandran K.P., Valiyaveedu, Cheerkulam. He also testified
that multiple calls had been exchanged with mobile Nos. ”8304936733″ and
”8281578464″. The tower location dataforthenumber”8606156141″placedthe
1st accused in the Uppala region, adjacent to Hampankatta,Mangalore,onboth
04.01.2018and08.01.2018,thedatescorrespondingtothevisitstothejewellery
shop.
24.2. The defence raised strong objections to the recovery of MO22 on
multiple grounds. One of the principal contentions was the non-examination of
Chandini(CW3),thewifeofPW2,andHabeeb(CW32),theowneroftheshop.It
wasalsoarguedthatsincethegoldbanglesweremeltedintoaningot,itwouldbe
impossibletoascertainwhetherMO22hadanyconnectiontothespecificbangles
allegedly robbed. These submissions, however, are devoid of merit.
24.3. Upon evaluating the evidence of PW94, we find no reason to
disbelievethecircumstancessurroundingtherecovery.Ext.P193,theconfessional
statementofthe1staccused,wasdulyproved,andtherecoverywasestablished
throughconsistentandcorroboratedtestimony.Theabsenceoftheshopowneras
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a witnessdoesnotrenderthetestimonyofPW17,theManagerandacompetent
witness to the transaction, unreliable.
24.4. We hold that the prosecution has successfully established, beyond a
reasonable doubt, that the 1st accused sold three gold bangles at Jewel House,
Hampankatta, Mangalore, and received a sum of Rs.1,18,000 in return. The
productionoftheIDcardsofthe1staccusedandDevakiK.,themotherofthe3rd
accused, is another incriminating link that connects the 1st accused to the sale
and, by extension, to the offence. The question of the involvement of the 2nd
accused in this transaction shall be considered separately at a later stage.
Recovery of gold ingot (MO26) at the instance of the 1st accused:
25. The next incriminating circumstance projected by the prosecution
relates to the sale of a gold chain and a bangle at Arshith Jewellery, Kannur.
PW94, the Investigating Officer, deposed that during custodial interrogation, the
1st accused made a disclosure to the effect thathehadsoldagoldchainanda
gold bangle at Arshith Jewellery. Acting on the disclosure statement (Ext.P164)
and led by the 1st accused, the police party proceeded to the said jewellery shop.
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25.1. PW28,theproprietorofArshithJewellery,testifiedthatapproximately
twoweekspriorto01.03.2018,the1staccusedhadcometohisshopwithagold
bangle and a chain weighing just under foursovereigns.Hestatedthatthegold
articles were valued at Rs.66,000/-, andtheamountwashandedovertothe1st
accused in a weddinginvitationcover.On01.03.2018,thepoliceteamvisitedhis
shopalongwiththe1staccused.PW28identifiedthe1staccusedastheindividual
whohadearliercometotheshoptosellthegold.Healsoidentifiedthewedding
cover used to hand over the cash, marked as MO21, and confirmed that the
handwritten markings on the cover weremadebyhim.PW28furtherstatedthat
the ornaments were melted and converted into an ingot, which was marked as
MO26.
25.2. With respect to the cash received on the sale of Gold ornaments,
PW94 deposed that pursuant to the confessional statement made by the 1st
accused, the police proceededtoHouseNo.VI/508,situatedinKayyur,Cheemeni
Grama Panchayat, and recovered Rs.66,000/- in cash, marked as MO20 series.
TheamountwasseizedfromtheresidenceofDW1(Indira),theeldersisterofthe
mother of the 1st accused.
25.3. The prosecution examined PWs 1 and 2, who clearly identified the
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gold chain and bangle as belonging to Janaki Teacher and stated thatthesame
hadbeenrobbedon13.12.2017.Notably,DW1admittedduringcross-examination
thatthe1staccusedusedtoresideinherhouse,whichisthesamepremisesfrom
which Ext.P2 (invoice) was earlier seized. This sequence of evidence
unambiguouslyestablishesthatthe1staccusedsoldthegoldchainandbangleat
ArshithJewellery,Kannur,andreceivedRs.66,000/-asproceeds,whichwerelater
recovered from a location linked to him.
25.4. A contention was advanced by the learned counsel for the defence
thattheweightoftheingot(MO26)didnotexactlycorrespondtothedescription
ofthegoldornamentsallegedtohavebeenstolen.Wearenotpersuadedbythis
argument.
25.5. It is a matter of common metallurgical experience that when gold
ornaments are subjected tomeltingandtransformedintoingots,thereisoftena
marginallossinweight.Thisslightreductionisattributabletofactorssuchasthe
quality and composition of the gold, evaporation or burning off of soldering
material or non-metallic inclusions, and incidental loss during melting, handling,
and solidification processes. Such diminution is inherent and inevitable in the
transformation of gold ornaments into bars or ingots. Moreover, the individual
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from whom the gold was stolen cannot reasonably be expected to recall with
absolute precision the exact weight or purity of the ornament, particularlywhen
such items may have been acquired several years, if not decades, prior to the
incident. In the present case, except for minor and scientifically explainable
discrepancies, the weight of the recovered ingot substantially tallies with the
description of the stolen articles. We are therefore satisfied that the argument
raised by the defence lacks merit.
Seizure of MO17 knives:
26. ThenextmajorcircumstancerelatestotheseizureoftheMO17series
of knives. To establish the origin and procurement of these weapons, the
prosecution examined PW39, an ex-serviceman and immediate neighbour of the
3rdaccused.PW39statedthatthe3rdaccusedhadreturnedtoIndiafromabroad
inoraroundNovember2017.Accordingtohim,the3rdaccusedhadgiftedhima
knife,claimingitwaspurchasedfromtheGulf.Healsostatedthatthe3rdaccused
had distributed similar knives to other neighbours. PW39 further deposed that
PW94, the Investigating Officer,hadvisitedhishousealongwiththe1staccused
andhadseizedaknife,whichwaslatermarkedaspartoftheMO17series.PW40,
another neighbour, corroborated PW39’s version and stated that he too had
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received a knife from the 3rd accused. He testified that the knife gifted to him
resembled MO17 series knives.
26.1. However, PW37, the mother of the 3rd accused, didnotsupportthe
case of the prosecution. Although she was confronted with her prior statement
during cross-examination, she denied having made any such statement. PW38
wasexaminedtoprovetheactualproductionofknivesMO17(a)andMO17(b)by
PW37. Ext.P31 is the seizure mahazar prepared at the time of the recovery.
26.2. The learned Sessions Judge, after a thorough evaluation of the
evidence, concluded that the prosecution had failed to establish that the 3rd
accusedhadprocuredadozenknivesfromabroadandthatthesewerethesame
weapons that were used during the commission of the offence. Upon a
re-appreciation of the materials on record, we find no reason totakeadifferent
view.
26.3. This conclusion is further supported by the fact thattheprosecution
primarily relies on the direct testimony of PW1 to establish the overt acts
committed by the accused. As already discussed, PW1, being an elderly person
whohadsustainedgrievousinjuriesandwitnessedahorrificcrime,couldnothave
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been expected to observe and recall intricate details such as the exact nature,
design, or make of the weapons used. All that PW1 stated was that one of the
assailants, a taller individual, used a smaller knife, and the person who inflicted
injuries on his wife used a longer one.
26.4. Inviewoftheselimitations,weconcurwiththefindingofthelearned
Sessions Judge that the prosecution has not succeeded in proving that the 3rd
accusedprocuredadozenknivesfromabroadandthatsomeofthosekniveswere
used in the commission of the crime. The evidence on record is insufficient to
establish this link with the degree of certainty required in a criminal trial.
Amount deposited in the bank account of the 1st accused:
27. Thenextincriminatingcircumstancerelieduponbytheprosecutionto
connect the 1st accused to the crime is the depositofRs.40,000/-intohisbank
account on 07.02.2018. To establish this, the prosecution examined PW48, the
ManageroftheStateBankofTravancore,CheemeniBranch.PW48deposedthata
substantial sum of cash had been deposited into the accountofthe1staccused
shortlybeforeheencashedthechequeissuedbythejewellerforthesaleofstolen
gold. Ext.P42, thestatementofaccount,confirmsthatthe1staccuseddeposited
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Rs.40,000/- in cash on 07.02.2018. Further, Ext.P42(a) reveals that an account
payeechequeissuedbyKrishnaJewels,Kannur–correspondingtothesaleofthe
Bombay-modelgoldchain–wasencashedbythe1staccusedon19.02.2018.This
financial transaction, occurring in close proximity to the attempted and actual
sales of stolen gold ornaments, forms yet another link in the chain of
circumstantialevidencepointingtowardtheinvolvementofthe1staccusedinthe
robbery and disposal of stolen property.
Recovery and seizure of Masks:
28.Thenextcircumstancerelieduponbytheprosecutiontoconnectthe1st
accused with the crime is the recovery of the MO2 series (masks), allegedly
purchased and used by the accused during the commission of the offence.
Accordingtotheprosecution,the1staccusedhadpurchasedthemasks,withthe
2nd accused, who was 18 years old at the time, playing a supporting role. To
substantiate this allegation, the prosecution examined PW35, who deposed that
on05.12.2017,he,alongwithaccusedNos.1and2,hadparticipatedinadriving
test. After the test concluded, the driving instructor dropped them at the
Neeleswaram bus stand. While they were waiting, PW35 overheard the 1st
accused telling the 2nd accused that he intended to buy masks for use during
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Christmas for holding carols. The 1staccusedlaterreturnedcarryingmasks,and
according to PW35, had also purchased cello tapes. PW63, the Assistant Motor
Vehicle Inspector, corroborated that accused Nos. 1 and 2 had taken part in a
driving test on the said date. This was further supported through Ext.P72, the
official report of the driving test. PW29, a salesman at ”Binale Fancy,” a fancy
goodsshoplocatedattheNeeleswaram BusStand,testifiedthatthe1staccused
purchased the MO2 series (masks) and MO27 (cello tape) from the shop. He
identified the 1st accused as the purchaser. To establish the existence and
licensing of the shop, the prosecution examined PW81, Secretary of the
Neeleswaram Municipality, who confirmed that Ext.P108 was the shop license
issued in the name of Chandrasekaran K., the father-in-law of PW29.
28.1.Thecaseoftheprosecutionfurthersuggeststhatafterpurchasingthe
masks, the 1st accused initially concealed them in a property adjacent to the
residence of PW1. PW30 (T.P. Bharathan) testified that he had gone with one
Ragavan to pluck coconuts in the property belonging to one Gopi, where
Raghavandiscoveredabagcontainingthreemasks.Believingittobediscardedby
children,theyleftitthere.PW30identifiedtheMO2seriesasthesamemaskshe
had seen at the location.
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28.2. PW94,theInvestigatingOfficer,deposedthatthe2ndaccused,during
custodial interrogation, disclosed that the masks worn by the accused had been
concealedinthe”KottaramBuilding.”Actingonthisdisclosure,thepolicewereled
by the 2nd accused tothelocation,whereheallegedlyretrievedthemasksfrom
the top of awallattherearofthebuilding.Ext.P162isthedisclosurestatement
made by the 2nd accused, and the seizure was recorded in Ext.P4, the seizure
mahazar.Curiously,PW30alsoclaimedtohavebeenpresentatthetimewhenthe
2nd accused retrieved the masks on 20.02.2018, raising questions about the
independence and reliability of his earlier testimony. The prosecution thus
attempted to establish (i) that the 1st accused purchased the masks and tape
from ”Binale Fancy” with the 2nd accused present, (ii) that the 1st accused
concealed them prior to the offence, and (iii) thatthe2ndaccusedre-concealed
them post-incident in the ”Kottaram Building.” However, the learned Sessions
Judge,afteracarefulevaluationoftheevidence,declinedtoacceptthissequence
of events. Upon re-appreciation, we find no reason to take a different view.
28.3. ThetestimonyofPW35,thatthemasksweretakenoutandshownto
him on 05.12.2017 so he could identify them, later appears inherently artificial.
Moreover, Raghavan, who allegedly first saw the masks in the property,wasnot
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examined. The credibility of PW29’s identification of the 1st accused as the
purchaser of the masks is also doubtful, particularly as he had no prior
acquaintance with the 1st accused.Theprosecutionclaimsthattheidentification
was based on a confessional statement by the 1st accused, who allegedly led
PW94totheshop.However,thiswasnotprovedinaccordancewithlaw,andthe
absence of a Test Identification Parade renders PW29’s in-court identification
unsafe to rely upon.
28.4. Inviewoftheseinconsistenciesandprocedurallapses,weagreewith
the learned Sessions Judge that the prosecution hasfailedtosatisfactorilyprove
the purchase and use of the MO2 series masks and tapes by the accused.
Presence of DNA of the 3rd accused on MO18:
29. We now turntotheevidencethatseekstoestablishtheinvolvement
of the 3rd accused in the commission of the crime. As already discussed in the
contextofPW1’stestimony,whilehisevidencemaynotbesufficienttoidentifythe
individual assailants based on their physical features or clothing, since all three
weremasked,itdoesunequivocallyestablishthatthreeassailantsforciblyentered
thehouse,committedrobbery,andinflictedfatalinjuries,resultinginthedeathof
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 83
Janaki and grievous injuries to PW1.
29.1.Toconnectthe3rdaccusedwiththeincident,theprosecutionprimarily
relies on forensic evidence in the form of DNA analysis. PW1 had deposed that
duringtheattack,oneoftheassailantsforcedhimtolieonthebed,tiedhislegs
with a bath towel,andtiedhishandswithatracksuitpantstakenfromthecloth
stand.Hefurtherstatedthatheeventuallymanagedtofreehimselfbyuntyingthe
knot.
29.2. PW94, the InvestigatingOfficer,statedthatMO18(apairoftracksuit
pants) was recovered from the scene of the crime. Blood samples of all the
accused, including the 3rd accused, were collected shortly after their arrest and
sent for comparison.
29.3. PW87, Smt. Sreevidya, Assistant Director of the Biology and DNA
Division, deposed that three setsofpacketspertainingtoCrimeNo.403/2017of
Cheemeni Police Station were received at the laboratory on 19.12.2017,
30.01.2018, and 01.03.2018. The forwarding note for the various samples
collected from the scenewasmarkedasExt.P141.TheDNAanalysisreportdated
20.03.2018 was marked as Ext.P118.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 84
29.4. ItemNo.8,asreferredtointhereport,isacowdunggreen-coloured
tracksuit pants with a white cord and knot, which hadvisibledarkbrownstains.
This item was identified as the one used to tie PW1’s hands. Item No. 16 of
Ext.P115 contained the blood sample of PW1 (Krishnan), while Item No. 20
contained hair and blood samples of the 3rd accused(AnilKumar).Accordingto
theanalysis,theDNAprofileobtainedfromtheknotinItemNo.8(specifically8b)
wasfoundtobeamixtureoftheDNAprofilescorrespondingtoItemNos.16and
20(a). The AnalystconcludedthattheDNArecoveredfromtheknotincludedthe
profiles of both Krishnan and Anil Kumar. Despiteextensivecross-examinationof
PW87, the defence could not impeach the credibility orscientificaccuracyofher
testimony.
29.5. Thelearnedcounselforthe3rdaccusedraisedanobjectionbasedon
thechainofcustodyofthesample.ItwasarguedthatPW50,theNursewhodrew
thebloodsample,didnotexplicitlymentioninhisdepositionthatthesamplewas
storedinasealedcontainer.Itwasfurthercontendedthatthesamplereachedthe
Magistrate Court only on 28.02.2018, two days after it wasdrawn,duringwhich
time it remained in the custody oftheInvestigatingOfficerandcouldhavebeen
tampered with.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 85
29.6. We are not persuaded by this submission. Ext.P54 is the seizure
mahazar prepared contemporaneously at the time ofsamplecollection.Itclearly
records that the samplewasdrawn,packed,andsealed.Moreover,Ext.P115,the
forensic report, notes unequivocally that the samples were received in sealed
condition. The Assistant Director, who receivedthesample,hascertifiedthatthe
seals were intact.
29.7. In light of these facts,wearesatisfiedthatthechainofcustodyhas
beenproperlymaintained,andthepossibilityofmanipulationortamperingisruled
out.Accordingly,theobjectionraisedbythelearnedcounselforthe3rdaccusedis
liable to be rejected.
29.8 DNA profile is generated from the body fluids, stains, and other
biologicalspecimensrecoveredfromevidence,andtheresultsarecomparedwith
theresultsobtainedfromreferencesamples.Thus,alinkamongvictim(s)and/or
suspect(s) with one another or with the crime scene can be established. DNA
profilingisacomplexprocessofanalysesofsomehighlyvariableregionsofDNA.
The variable areas of DNA are termed genetic markers. The current genetic
markers of choice for forensic purposes are Short Tandem Repeats (STRs).
Analysis of a set of 15 STRs employing Automated DNA Sequencer givesaDNA
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 86
profileuniquetoanindividual(exceptmonozygotictwin).Itisbeyondanymatter
of doubt that if DNA evidence is not properly documented, collected, packaged,
and preserved, it will not meet the legal and scientific requirements for
admissibilityinacourtoflaw.Inthecaseonhand,Ext.P115,acopyofwhichhas
been supplied to the defence,containsdetailsofthevaluesandthemannerand
the methodology by which the calculations have been carried out. The expert
enteredtheboxandadducedevidenceoftheDNAcomparisonstogetherwithhis
calculations of the random occurrence ratio. The DNA evidence, when viewed
cumulatively with the surrounding circumstances, provides a compelling link
connecting the 3rd accused to the sceneofoccurrenceandsupportsthecaseof
the prosecution that he participated in the robbery and assault on the night of
13.12.2017.
Recovery of the Mobile Phone of PW1:
30. Thenextincriminatingcircumstancerelieduponbytheprosecutionto
link the 3rdaccusedwiththecrimepertainstotherecoveryofMO11,theMobile
phone belonging to PW1, which was allegedly robbed during the course of the
incident and later recovered based on a disclosure statement made by the 3rd
accused.PW1,inhisdeposition,statedthathismobilephonewastakenawayby
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 87
the assailants on the night of the occurrence and that he had used his wife’s
mobilephonetocontactthepolice.PW4,thegrandsonofPW1,corroboratedthis
version bytestifyingthathehadgiftedamobilephonetohisgrandfather.PW94,
the Investigating Officer, deposed that during custodial interrogation, the 3rd
accused confessed to having thrown the stolen mobile phone into a brick pond.
Acting on this disclosure,andasledbythe3rdaccused,thepoliceproceededto
the location, and the mobile phone was retrieved from the pond by PW30 on
23.02.2018.PW30confirmedthathewaspresentwhenthepolicepartyarrivedat
the brick pond along with the 3rd accused and that it was he who entered the
pondandrecoveredthemobilephoneafterconsiderableeffort.Therecoverywas
documented under Ext.P10, the seizure mahazar.Theprosecutionalsoexamined
PW13 and PW15 to corroborate the recovery. While the learned counsel for the
3rd accused argued that therecoverywasstagedandhighlightedthatthepolice
were seen at the location earlier in the day, suggesting the possibility of
fabrication, we find no merit in this contention. It is relevant to note that the
accused were arrested on 21.02.2018, more thantwomonthsaftertheincident,
and the disclosure regarding the disposal of the mobile phone emerged only
during interrogation. The delay in recovery is thus naturally accounted for and
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 88
cannot,byitself,suggestmanipulation.Havingcarefullyevaluatedthetestimonies
ofPWs1,4,15,30,and94,wearesatisfiedthattheprosecutionhasestablished
beyondreasonabledoubtthatthe3rdaccusedtookawayPW1’smobilephoneon
the night of 13.12.2017 and subsequently disposed of it by throwing it into the
brick pond. The recovery of MO11 pursuant to the disclosure made by the 3rd
accused forms a strong and cogent link in the chain of circumstantial evidence,
conclusively connecting the third accused to the commission of the offence.
Recovery of MO15 Knife at the instance of the 3rd accused:
31. The next circumstance relied upon by the prosecution to link the 3rd
accused with the offence is the recovery of MO15, a knifeallegedlyusedbythe
3rd accused to open the wooden shelf located in the upstairs room of PW1’s
house. PW94, the Investigating Officer, deposed that following the arrest of the
3rd accused, a confessional statement was made by him during custodial
interrogation, pursuant to which MO15 was recovered. According to PW94, the
knifewaslocateddanglinginthebushessituatedonthebanksofariverandwas
seized underExt.P11,theseizuremahazar.Theknifewassubsequentlyproduced
before the Court as per the property list marked as Ext.P181. PW16, who was
presentatthetimeofrecovery,corroboratesthetestimonyofPW94regardingthe
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 89
seizure of MO15.
31.1. Both PW1 and PW4 identified MO15 as the knife regularly used for
cutting grass in their household. Furthermore, Ext.P62, the scene mahazar,
recordsthedamagecausedtothewoodenshelf,therebycorroboratingthecaseof
the prosecution that a tool was forcibly used to gain access to the storage
compartment.
31.2. The learned counsel for the defence arguedthattherecoveryofthe
knife should not be givenevidentiaryweightduetotheabsenceofpaintresidue
or other forensic traces linking it to the damaged shelf. However, in light of the
consistentandcorroboratedtestimoniesofPWs1,4,16,and94,wearesatisfied
that the prosecution has established, beyond reasonable doubt, that the 3rd
accused had specific knowledge of the location where the knife was discarded.
31.3. The recovery of MO15 pursuant to the disclosure made by the 3rd
accused is, in our view, yet another strong and credible link in the chain of
circumstantialevidenceconnectingthe3rdaccusedtotherobberyandthemurder
that occurred on 13.12.2017.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 90
Recovery of MO16 knife at the instance of the 3rd accused:
32. ThenextincriminatingcircumstancepertainstotherecoveryofMO16,
the knife allegedly used by the 3rd accused to inflict fatal injuries on Janaki
Teacher. PW1, in his evidence, stated that he had heard his wife’s scream and
immediatelyrealisedthatshehadbeenstabbed.Whilehedidnotdirectlywitness
the assault, the case of the prosecution is that it was the 3rd accused who
inflicted the fatal injuries. PW94, the Investigating Officer, deposed that during
custodialinterrogation,the3rdaccusedconfessedthathehadthrowntheweapon
used to stab Janaki into the Tejaswini River, whichflowsonthenorthernsideof
the property. Pursuant tothisdisclosure,theprosecutionexaminedPW18,aCivil
Police Officer attached to the Coastal Police Station, who had received formal
trainingindiving.PW18testifiedthathewassummonedbytheInspectorofPolice
toassistintherecoveryoftheweapon.Hereachedthesiteataround10:43a.m.,
where the police party and the 3rd accused were already present. The 3rd
accused, whom PW18 identifiedincourt,pointedouttheapproximatelocationin
theriverwherehehadthrowntheknife.PW18,alongwithoneChandranMaster,
dived into the river and successfully recovered MO16, which was seized in the
presence ofwitnesses.PW94provedExt.P14,theseizuremahazar,andExt.P187,
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 91
the property list documenting the recovery of MO16. The prosecution also
examined PW19 (Surendran K.), who attested Ext.P14 and corroborated the
events surrounding the recovery. The learned counsel appearing for the 3rd
accusedcontendedthattheabsenceofbloodstainsontherecoveredkniferenders
the prosecution’s case suspect. We find no merit in thisargument.Therecovery
was effected on 27.02.2018, more than two months after the incident of
13.12.2017,anditisplausiblethatanybiologicaltraceswouldhavebeenwashed
away, considering that the knife had remained submerged in the river for a
considerable period. Furthermore, PW75, the Doctor who conducted the
postmortemexamination,categoricallyopinedthattheinjuriessustainedbyJanaki
Teacher could have been caused by aweaponsuchasMO16.Thecrucialaspect
remainsthatthe3rdaccusedpossessedspecificknowledgeregardingthelocation
where the weapon was discarded, and he led the police to its recovery. Such
knowledge, not accessible to a third party, is relevant under Section 27 of the
32.1. Inlightoftheabove,weareoftheconsideredviewthattherecovery
ofMO16attheinstanceofthe3rdaccusedformsastrong,significantandreliable
linkinthechainofcircumstantialevidenceconnectinghimwiththecommissionof
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 92
the crime.
Extra Judicial Confession of the 3rd accused:
33. The next circumstance projected by the prosecution to implicatethe
3rd accused is the alleged extra-judicial confession made by him to PW34, a
co-worker, admitting his involvement in the robbery and murder.
33.1. PW34deposedthathewasoriginallyaresidentofMadikkalPanchayat
andwasemployedasaSalesmaninBahrain.The3rdaccusedhadalsoworkedin
the same company as astorekeeperandresidedintheaccommodationprovided
bytheCompany.AccordingtoPW34,theCompanyfacedfinancialdifficulties,and
the workers were not being paid regularly. The 3rd accusedreturnedtoIndiain
November 2017 and subsequently wentbacktoBahraininFebruary2018.PW34
stated that while they were conversing in Bahrain about a robbery and murder
that had taken placeinhisnativeplace,the3rdaccusedconfidedinhimthathe
and two of his friends had committed the said crime. The 3rdaccusedallegedly
stated that they went to the house of Janaki Teacher with the intention of
committing theft, and when the deceased identified him, he was compelled to
eliminate her. The confession, according to PW34, was made in the presence of
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 93
their mutual friend, Faris. PW34 further testified that he returned to India on
12.02.2018, and upon arrival, he was summoned by the Circle Inspector,
Neeleswaram, who asked him to meet in person and bring his passport. During
cross-examination, PW34 admitted that he and the 3rd accused sharedpersonal
information and were close. When asked why he had not informed the police
earlier, he explained that the 3rd accused had asked him to keep the matter
confidential and that he feared potential repercussions given the seriousness of
thecrime.Hedeniedthesuggestionthathehadbeenpressuredbythepoliceinto
making a false statement.
33.2. Thequestionthatarisesforconsiderationiswhetheranyreliancecan
be placed on the alleged extra-judicial confession and whether the testimony of
PW34 is credible and trustworthy.
33.3. It is a settled principle of criminal jurisprudence that extra-judicial
confession is a weak piece of evidence. Wherever the court, upon due
appreciationoftheentireprosecutionevidence,intendstobaseaconvictiononan
extra-judicial confession, it must ensurethatthesameinspiresconfidenceandis
corroborated by other prosecution evidence. If, however, the extra-judicial
confessionsuffersfrommaterialdiscrepanciesorinherentimprobabilitiesanddoes
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 94
notappeartobecogentaspertheprosecutionversion,itmaybedifficultforthe
courttobaseaconvictiononsuchaconfession.Insuchcircumstances,thecourt
wouldbefullyjustifiedinrulingsuchevidenceoutofconsideration.(Sahadevan
And Another v. State Of Tamil Nadu18)
33.4. In Pakkirisamy v. State of T.N19, the Hon’ble Supreme Courthas
observed that it is a rule of caution where thecourtwouldgenerallylookforan
independent reliable corroboration before placing any reliance upon such
extra-judicial confession.
33.5. In Kavita v. State of T.N20, it was held that though there is no
doubt that convictionscanbebasedonextra-judicialconfession,itiswellsettled
thatintheverynatureofthings,itisaweakpieceofevidence.Itistobeproved
just like any other fact, and the value thereof depends upon the veracity of the
witnesses to whom it is made.
33.6. While explaining the dimensions of the principles governing the
admissibility and evidentiary valueofanextra-judicialconfession,theApexCourt
18
[(2012) SCC OnLine SC 422]
19
[(1997) 8 SCC 158]
20
[( 1998) 6 SCC 108]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 95
in State Of Rajasthan v. Raja Ram21, observed that an extra-judicial
confession, if voluntary and true and made in a fit state of mind, can be relied
uponbythecourt.Theconfessionwillhavetobeprovedlikeanyotherfact.The
valueoftheevidenceastoconfession,likeanyotherevidence,dependsuponthe
veracityofthewitnesstowhomithasbeenmade.Suchaconfessioncanberelied
uponandconvictioncanbefoundedthereoniftheevidenceabouttheconfession
comes from the mouth of witnesses who appear to be unbiased, not even
remotely inimical to the accused, and inrespectofwhomnothingisbroughtout
whichmaytendtoindicatethathemayhaveamotiveofattributinganuntruthful
statement to the accused.
33.7. In Aloke Nath Dutta and Others v. State of W.B22, the Apex
Court observed as under:
”87. Confession ordinarily is admissible in evidence. It is a
relevantfact.Itcanbeactedupon.Confessionmayundercertain
circumstances and subject to law laid down by the superior
judiciary from time to time form the basis for conviction. It is,
however, trite that for the said purpose the court has to satisfy
itself in regard to: (i) voluntariness of the confession; (ii)
21
[(2003) 8 SCC 180]
22
[( 2007) 12 SCC 230]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 96
truthfulness of the confession; and (iii) corroboration.
89. A detailed confession which would otherwise be within
the special knowledge of the accused mayitselfbenotsufficient
to raise a presumption that confession is a truthful one. Main
features of a confession are required to be verified. If it is not
done, no conviction can be based only on the sole basis thereof.”
33.8. In Sahadevan (supra), the Apex Court has laid down the broad
principles which would make an extra-judicial confession an admissible piece of
evidencecapableofformingthebasisoftheconvictionofanaccused.Itwasheld
that the precepts laid down are toguidethejudicialmindwhiledealingwiththe
veracity of cases where the prosecution heavily relies upon an extra-judicial
confession alleged to have been made by the accused. The principles laiddown
can be culled down as under:
(i) Theextra-judicialconfessionisaweakevidencebyitself.Ithas
to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and
evidentiary value if it is supported by a chain of cogent
circumstancesandisfurthercorroboratedbyotherprosecution
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 97
evidence.
(v) For anextra-judicialconfessiontobethebasisofconviction,it
should notsufferfromanymaterialdiscrepanciesandinherent
improbabilities.
(vi) Suchstatementessentiallyhastobeprovedlikeanyotherfact
and in accordance with law.
33.9. Having understood the principles that are to be kept in mindbythe
court while examining theacceptabilityandevidentiaryvalueoftheextra-judicial
confession, we shall now consider the contentions advanced by the learned
counsel.
33.10. PW34isadmittedlyaco-workerofthe3rdaccused.Thereisnothing
on record to suggest that he bore any animosity or ill will towards the 3rd
accused.Nosuchsuggestionwasevenputtohimduringcross-examination.Both
individualswereworkingabroadinthesameCompanyand,asisevidentfromthe
testimony, shared a close personal rapport. Being from the same locality and
workinginproximity,itisentirelyplausiblethatthe3rdaccused,burdenedbyguilt
oremotionalturmoilfollowingthecommissionoftheoffence,confidedinPW34,a
trustedfriend.PW34clearlystatedinhisdepositionthatthe3rdaccusedwaslucid
and voluntarily disclosed his involvement in the crime while they were having a
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 98
conversation. Importantly, the statement of PW34 was also recorded by the
learned Magistrate, lending further credibility to his version. Despite extensive
cross-examination, no material contradiction orinconsistencycouldbeelicitedby
the defence. Upon an overallassessmentofevidenceofPW34inthelightofthe
legal principles laid downbytheHon’bleSupremeCourtontheevidentiaryvalue
of extra-judicial confessions, we find his testimony to becogent,consistent,and
worthy of credence. There appears to be no reason or motive for PW34 to
fabricate a false narrative to implicate the 3rd accused.
33.11. Moreover,thisisnotacasewheretheprosecution’scaserestssolely
on the extra-judicial confession. The said confession is buttressed by a chain of
independent and corroborative circumstances established through reliable
prosecution evidence. In our considered view, theextra-judicialconfessionmade
by the 3rd accused to PW34, read in conjunction with the other incriminating
material on record, forms a strong and compelling link in the chain of
circumstances pointing to the guilt of the 3rd accused.
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 99
RecoveryofIDcardofPW37,themotherofthe3rdaccused,fromJewel
House:
34. Thenextcircumstancerelieduponbytheprosecutionistherecovery
oftheElectoralIDcardofPW37,Devaki,themotherofaccusedNo.3,fromJewel
House, Hampankatta, Mangalore. PW17, Ibrahim Shameem, a salesman at the
saidjewelleryshop,deposedthaton08.01.2018,the1staccusedvisitedtheshop
andhandedovertwoElectoralIDcards,onebelongingtohimselfandtheotherto
PW37, Devaki. PW17 stated that during an earlier visit on 04.01.2018, the 1st
accused had attempted to sell gold, but the shop refused to proceed with the
transaction in theabsenceofproperidentification.Itwasonlyuponreturningon
08.01.2018 withtheoriginalIDcardsthatthetransactionwascompleted.Copies
of the IDs were taken, and the originals were returned. It is not disputed that
PW37isthemotherofthe3rdaccused.Theprosecutioncontendsthattheuseof
her ID card inconnectionwiththetransactioninvolvingthesaleofstolengoldis
yetanotherincriminatingcircumstancethatpointstowardthecomplicityofthe3rd
accused in the incident that occurred on 13.12.2017. The learned counsel
appearingforthe3rdaccusedsubmittedthatthemereproductionofaphotocopy
of the ID card of the mother of the 3rd accused by the 1st accused does not
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 100
constituteareliableorcogentlinkimplicatingthe3rdaccusedintheoffenceand,
standingalone,cannotbetreatedasacircumstanceofprobativevalue.Whilewe
are mindfulthattherecoveryofanIDcardpersemaynotconclusivelyestablish
the involvement of the 3rd accused, we are equally of the view that such a
circumstance cannot be dismissed as trivial, particularly when it forms part of a
larger chainofincriminatingfacts.ThefactthattheIDcardofthemotherofthe
3rd accused was used by the 1staccusedtofacilitateatransactioninvolvingthe
sale of gold ornaments, which the prosecution alleges were robbed during the
incident, assumes significance in light of other material evidence linking the 3rd
accused to the crime.
Circumstantial evidence- guiding principles:
35. Having considered the entireevidenceinsofarasitconcernsaccused
Nos.1and2,wefindthatthecaserestsonthedirectevidenceletinbyPW1and
the various links of circumstantial evidence presented by the prosecution. It is
settled that the court can draw an inference of guilt when all the incriminating
factsandcircumstancesarefoundtobetotallyincompatiblewiththeinnocenceof
theaccused.Ofcourse,thecircumstancesfromwhichaninferenceastotheguilt
isdrawnhavetobeprovedbeyondreasonabledoubtandhavetobeshowntobe
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 101
closely connected with the principal fact sought to be inferred from those
circumstances.Itwouldbeappositetohaveabrieflookattheprecedentswherein
the guiding principles have been reiterated.
35.1. InHanumantGovindNargundkarv.StateofM.P23,whichisone
of the earliest decisions on the subject, the Apex Court observed as under:
”10.…Itiswelltorememberthatincaseswheretheevidenceisofa
circumstantialnature,thecircumstancesfromwhichtheconclusionofguilt
is to be drawnshouldinthefirstinstancebefullyestablished,andallthe
facts so established should be consistent only with the hypothesis of the
guilt of the accused. Again, the circumstances should be of a conclusive
nature and tendency and they should be such as to exclude every
hypothesisbuttheoneproposedtobeproved.Inotherwords,theremust
be a chain of evidence so far complete as not to leave any reasonable
groundforaconclusionconsistentwiththeinnocenceoftheaccusedandit
must be such as to show that within all human probability the act must
have been done by the accused.”
35.2. InPadalaVeeraReddyv.StateofA.P24,theApexCourtheldthat
when a case rests upon circumstantial evidence, the following tests must be
satisfied:
23
AIR 1952 SC 343
24
[1 989 Supp (2) SCC 706]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 102
”(1) the circumstances from which an inference of guilt is sought to be drawn,
must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing
towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form achainsocompletethat
there is no escape from the conclusion that within allhumanprobabilitythe
crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete
andincapableofexplanationofanyotherhypothesisthanthatoftheguiltof
theaccusedandsuchevidenceshouldnotonlybeconsistentwiththeguiltof
the accused but should be inconsistent with his innocence.”
35.3. In Sharad Birdhichand Sarda v.StateofMaharashtra25,itwas
heldbytheHon’bleSupremeCourtthattheonuswasontheprosecutiontoprove
thatthechainiscompleteandfalsityoruntenabilityofthedefencesetupbythe
accused cannot be made basis for ignoring serious infirmity or lacuna in the
prosecutioncase.TheCourtthenproceededtoindicatetheconditionswhichmust
be fully established before conviction can be based on circumstantial evidence.
These are:
(1) the circumstances from which the conclusion of guilt is to be drawn shouldbe
25
[(1984) 4 SCC 116]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 103
fully established. The circumstances concerned ’must’ or ’should’ and not ’may
be’ established;
(2) thefactssoestablishedshouldbeconsistentonlywiththehypothesisoftheguilt
of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and
(5) there must be a chain of evidence so complete as nottoleaveanyreasonable
groundfortheconclusionconsistentwiththeinnocenceoftheaccusedandmust
show that in all human probability the act must have been done by the accused.
35.4. In State of U.P v.AshokKumarSrivastava26,itwaspointedout
by the Apex Court that great care must be taken in evaluating circumstantial
evidence, and if the evidence relied on is reasonably capable of two inferences,
the one in favour of the accusedmustbeaccepted.Itwasalsopointedoutthat
the circumstances relied upon mustbefoundtohavebeenfullyestablished,and
the cumulative effect of all the facts soestablishedmustbeconsistentonlywith
the hypothesis of guilt.
35.5. In Ramreddy Rajesh Khanna Reddy and Another v. State of
26
(1 992) 2 SCC 86
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 104
A.P27, the Apex Court, while reiterating the settled legal position, observed:
”26.Itisnowwellsettledthatwithaviewtobaseaconviction
on circumstantial evidence, the prosecution must establish all the
pieces of incriminating circumstances by reliable and clinching
evidenceandthecircumstancessoprovedmustformsuchachainof
events as would permit noconclusionotherthanoneofguiltofthe
accused.Thecircumstancescannotbeonanyotherhypothesis.Itis
alsowellsettledthatsuspicion,howevergraveitmaybe,cannotbea
substitute for a proofandthecourtsshalltakeutmostprecautionin
finding an accused guilty only on the basis of the circumstantial
evidence.”
35.6. Viewed cumulatively with the recoveries, forensic evidence, and
extra-judicialconfession,therecoveryoftheIDandotherlinksdiscussedindetail
above,weholdthatthecircumstancesfromwhichtheconclusionofguiltissought
tobedrawnhavebeenfullyestablishedandthesameisconsistentonlywiththe
hypothesisoftheguiltoftheappellants.Thechainofcircumstancesinthiscaseis
complete so as not to leave anyreasonablegroundfortheconclusionconsistent
with the innocence of the appellants/ accused Nos. 1and3.Thefindingofguilt
arrived by the learned Sessions Judge for the offencesunderSections452,392,
394, 302, 307, and 397 r/w. Section 34 of the IPC does not warrant any
27
(2006) 10 SCC 172
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 105
interference.
Crl. A No. 358 of 2023 and Crl. A (V) No. 29 of 2022:
36. We shall now deal with theappealsfiledbytheStateandthevictim
against the acquittal of the 2nd accused. Having evaluatedtheentireevidence,
we find that there are a few circumstances projected by the prosecution linking
the 2nd accused with the robbery and murder.
36.1. We have already concurred with the finding of the learned Sessions
Judge that the oral evidence let in by PW1 cannot be relied upon to fix the
identification of accused Nos. 1 to 3 in court based ontheirphysicalfeaturesor
the clothes alleged to have been worn by the accused at the time of the
occurrence.
37. We shall now deal withthecircumstantialevidencepresentedbythe
prosecution to connect the 2nd accused.
The purchase, concealment and recovery of MO2 series masks:
38. The prosecution asserts that on 05.02.2017, accused Nos. 1 and 2
attended a driving test and thereafter, they, along with PW35, travelled to
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 106
NeeleswaramJunctioninthecardrivenbythedrivinginstructor. Whiletheywere
waiting for the bus, the 1st accused went to ”BinaleFancy”andpurchasedMO2
seriesmasksandarolloftape. WehavealreadydiscussedtheevidenceofPW35
and have concluded that no reliance can be placed on the same.
38.1. The next piece of evidence projected by the prosecution to link the
2nd accused with the crime is the recovery of the MO2 series masks, allegedly
wornbytheaccusedduringthecommissionoftherobberyandmurder.PW94,the
InvestigatingOfficer,deposedthatduringcustodialinterrogation,the2ndaccused
made a disclosure that the masks had been concealed in the Kottarambuilding,
and he offeredtopointouttheplaceofconcealment.Actingonthisinformation,
thepoliceparty,ledbythe2ndaccused,proceededtothesaidbuilding.The2nd
accused is stated to have climbed the wall on the rearsideofthestructureand
retrieved three masks that were concealed above the ceiling, and handed them
over to PW94. The disclosure statement was marked as Ext.P162, and the
recovery was recorded underExt.P4seizuremahazar.PW30,whowaspresentat
the time of recovery, corroborated this version, and PW7 was examined to lend
further credencetotheeventsnarratedbyPW30.BothPW7andPW30identified
the 2nd accused in court as the individual who retrieved the masks from the
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 107
ceiling of the Kottaram building and produced them before the police.Whilethe
recovery of the MO2 series masks at the instance of the 2nd accused stands
proven beyond doubt, the evidentiary value of this recovery must be viewed in
light of the other evidence with regard to MO2 series masks. We have already
foundthattheprosecutionhasfailedtoestablish,withreliableevidence,thatthe
1st accused had purchased these specific masks from ”Binale Fancy” on
05.12.2017, orthatthe2ndaccusedhadaccompaniedhimatthetime.Likewise,
the alleged concealment of the masks prior to the incident in the paramba
adjacenttothepropertyofGopihasalsonotbeenproved.Inviewofthefactthat
theprosecutionhasnotbeenabletocrediblyestablishthechainofcustodyofthe
MO2 series masks, specificallytheirorigin,purchase,andinitialconcealment,the
recovery of the masks alone, without these foundational factsbeingestablished,
creates some doubt regarding their recovery attheinstanceofthe2ndaccused.
Thefailureoftheprosecutiontoprovethepurchaseandpriorconcealmentofthe
masksbythe1staccusedcastsseriousdoubtonthegenuinenessoftherecovery
and its relevance to the crime. Accordingly, we are of the view that while the
recovery of the MO2 seriesmasksattheinstanceofthe2ndaccusedisfactually
established,itis,inisolation,insufficienttoconclusivelyprovethatthesaidmasks
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 108
were the ones purchased prior to the crime and actually used during its
commission. Even otherwise, the Apex Court in Vinobhai v State of Kerala28
hasheldthatthedisclosurestatementsandtherecoveryeffectedonitsbasisare
notsostrongapieceofevidencesufficientonitsownandwithoutanythingmore
to bring homethechargesbeyondreasonabledoubt.Theprosecution,therefore,
has failed to prove this circumstance beyond reasonable doubt.
38.2. The next circumstance relied on by the prosecution to link the 2nd
accusedwiththeoffenceisthat,usingtheshareoftheproceeds,hepurchaseda
mobile phone (MO28). According to the prosecution,the2ndaccusedpurchased
an ’Honor’ brand mobile phone online, and PW31hadtakenthe2ndaccusedon
his motorcycle to collect the phone from the Blue Dart courier office located at
Perumba,Payyanur.PW31deposedthatthe2ndaccusedinformedhiminJanuary
2018 that the mobile phone had arrived at the said courier office.PW31further
identifiedthemobilephonebyitsbrandasMO28.Tosubstantiatethisallegation,
theprosecutionsetupachainofeventsinvolvingPWs68and65.Itwasalleged
that the 2nd accused had approached PW68 in January 2018 and requested
assistance in placing an online order for the phone. PW68, in turn, contacted
28
[( 2025 SCC OnLine SC 178)]
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 109
PW65tocompletethepurchase.PW68transferredRs.7,000/-toPW65’saccount,
and subsequently, another Rs.1,000/- was also transferred at PW65’s request.
PW65 then allegedly placed the order, and once the phone arrivedatBlueDart,
the2ndaccusedandPW31wenttocollectit.WefindthatbothPW68andPW65
testified in support of this version. However, during cross-examination, they
admitted that the mobile phone had been ordered in the name and addressof
PW65. Crucially, the prosecution failed to lead any evidence explaining how a
mobile phone booked under PW65’s name and address wasreceivedbythe2nd
accused at the courier office. There isnodocumentationorindependentwitness
to establish the delivery to the 2nd accused. Moreover, there is a complete
absence of credible evidence to establish that the 2nd accused had, in fact,
requested PW68 to arrange the purchase of the mobile phone on hisbehalf.No
direct proof was adduced to show that the funds used for the purchase were
derivedfromtheproceedsoftherobbery.Inlightoftheabovediscussion,weare
oftheviewthattheprosecutionhasfailedtoestablish,throughreliableevidence,
that accused No.2 ordered the MO28 mobile phone after the incident using his
alleged share of the loot. The prosecution has also failed to explain how the
mobile phone, purchased under the name and address of PW65, came into the
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 110
possessionoftheaccusedNo.2.Assuch,thiscircumstancedoesnotadvancethe
caseoftheprosecutionandisinsufficienttolinkthe2ndaccusedtothecrime.We
agree with the learned Sessions Judge that the evidence about the purchase of
the mobile phone cannot be used to link the 2nd accused with the crime.
38.3. Though the prosecution attempted to bring in evidence that the
weapon used for commissionoftheoffencebythe2ndaccusedwasthrowninto
the Tejaswini Riverandthoughanattemptwasmadetorecoverthesamebased
on the disclosure statement given by the 2nd accused, no recovery could be
effected. The same is the case with the torchlight allegedly robbed by the 2nd
accused from the house of PW1.
38.4. In that view of the matter, we are of the view that the learned
Sessions Judge had correctly appreciated the evidence and had come to the
finding that there is no credible evidence to connect the 2nd accused with the
case of robbery and murder committed in the house of PW1 on 13.12.2017.
Furthermore,anappealagainstacquittalhasalwaysbeenaltogetheronadifferent
pedestalfromthatofanappealagainstconviction.Inanappealagainstacquittal
where the presumption of innocence in favour of the accused is reinforced, the
Appellate Court would interfere with the order of acquittal only when there is
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 111
perversity of fact and law.
38.5. InSambasivanv.StateofKerala29, itwasheldbytheApexCourt
as under:
”The principles with regard to the scope of the powers of the
appellatecourtinanappealagainstacquittal,arewellsettled.Thepowers
oftheappellatecourtinanappealagainstacquittalarenolessthaninan
appeal against conviction. But where on the basis of evidence on record
twoviewsarereasonablypossibletheappellatecourtcannotsubstituteits
viewintheplaceofthatofthetrialcourt.Itisonlywhentheapproachof
the trial court in acquittinganaccusedisfoundtobeclearlyerroneousin
its consideration of evidence on record and in deducing conclusions
therefrom that the appellate court can interfere with the order of acquittal.”
38.6. HavingconsideredthefindingsoftheTrialCourtinsofarasitconcerns
the2ndaccused,weareoftheviewthatthelearnedSessionsJudgehadproperly
evaluated the evidence and ordered an acquittal. The findings arrived at by the
learned Sessions Judge cannot be held to be perverse.
39. In view ofthediscussionabove,wearenotinclinedtointerferewith
thefindingofguiltpassedbythelearnedSessionsJudgeasagainstaccusedNos.
1 and 3.Wefindnoreasontointerferewiththeorderofacquittalpassedbythe
29
(1
998) 5 SCC 412
2025:KER:40388
Crl.A.Nos. 124/2023, 1086/2022, 358/2023 &
Crl. A (V) No. 29 of 2022 112
learned Sessions Judge acquitting the 2nd accused.
Crl.ANo.124of2023andCrl.ANo.1086of2022aredismissedconfirming
the finding of guilt, conviction and sentence against the 1st and 3rd accused.
Crl.A.No. 358 of 2023 and Crl.A.(V)No.29of2022aredismissedupholdingthe
order of acquittal of the 2nd accused.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
JUDGE
PS&APM/10/06/2025