Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(Ker) 530

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.HARIPRASAD, N.ANIL KUMAR, JJ.
Jithesh S/o. Kunjikannan, Morkothe Veedu – Appellant
Versus
The State Of Kerala – Respondent
Crl.Appeal Nos.567, 576, 665, 800 of 2014, 1121 of 2015, 129 of 2016 and 609 of 2016, Crl.Appeal (V) No.21 of 2019 & Crl.Revision Case No.5 of 2016
Decided on : 12-08-2020

Advocates:
Advocate Appeared:
For the Appellant : SRI.SASTHAMANGALAM S. AJITHKUMAR, SRI.V.S.THOSHIN
For the Respondent: MR.ALEX M. THOMBRA, MR S U NAZAR

IMPORTANT POINTS
The order passed under the provision do not conclude a right or title to the property, the trial Judge is not to decide intricate questions of ownership of property which is in the domain of a competent civil court-The courts have no discretion to avoid imposition of fine when it sentences an offender under Section 302 IPC-In the matter of sentence imposable also, there is a distinction between Sections 302 and 396 IPC-All the ingredients in Section 302 IPC are included in Section 396 IPC because it is trite, no two provisions exist in the Penal Code are for the same purpose.

Headnote:
Code of Criminal Procedure, 1973- Section 235(1);; The Indian Penal Code, 1860- Sections 120B, 396, 302, 201, 328, 465 ,471 and Section 34- Trial of a criminal case-Right or title to a property -Question as to who is the title holder of a particular property, involved in a criminal case, is a matter to be decided in an appropriate civil proceeding. Section 452 Cr.P.C. does not enable a criminal court to decide question regarding title to property- The courts have no discretion to avoid imposition of fine when it sentences an offender under Section 302 IPC- failure to impose a sentence is illegal.
Statement of facts:
Six accused persons were charge-sheeted for offences punishable under Sections 120B, 396, 302, 201, 328, 465 and 471 read with Section 34 of the Indian Penal Code, 1860 - After examining 72 witnesses on the prosecution side and eight witnesses on the defence side and also after considering 244 documents exhibited for the prosecution, 25 documents for the defence, X1 series court exhibits and 143 material objects, the trial court came to a conclusion that the accused 1 to 5 are guilty of criminal conspiracy for committing murder, dacoity, forgery, using as genuine a forged document which is known to be forged, administering a stupefying drug on the deceased with intent to cause hurt and causing disappearance of evidence of the offence committed. Apart from the above, they found to have committed grave offences of murder and dacoity pursuant to the conspiracy hatched. Imprisonment for life, other sentences for different terms and fine have been imposed on them. 6th accused was found to be not guilty of any of the offences alleged by the prosecution and he is acquitted under Section 235(1) of the Code of Criminal Procedure, 1973.
Finding of the court:
The accused 1 to 4 are criminally liable for hatching a conspiracy for committing robbery and murder. It is seen that they have committed the offence of robbery. It is also seen that they have committed murder in the course of committing robbery. Therefore, they are liable to be punished under Sections 120B, 394 and 302 IPC. Besides, they are liable for an offence of causing hurt by administering chloroform, a stupefying substance, with an intent to commit an offence, punishable under Section 328 IPC. That apart, accused 1 and 3 are liable for an offence of forgery punishable under Section 465 IPC and also for using as genuine a forged document, punishable under Section 471 IPC.
Deceased Varma established a relationship with the appellant for acting as a surrogate mother through artificial insemination-The court below is justified in allowing PW2 to receive back the gems and stones after trial of the case-At the time of death, Varma was residing with PW2. Viewing from any angle- PW2 has a better claim for possession of the articles than the appellant.
Result: Criminal revisions and appeals are disposed of

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points summarized:

The court emphasized that orders passed under certain provisions do not determine rights or titles to properties. Questions regarding ownership are to be resolved in civil courts, and criminal courts do not have jurisdiction to decide on property titles or ownership issues (!) (!) (!) (!) (!) (!) .
The disposal of property after trial is at the discretion of the court and does not involve adjudication of ownership rights. The court’s order is limited to the immediate possession and not to establish ownership or title (!) (!) (!) (!) (!) .
The evidence shows that the property in question, including gems and stones, was recovered from the accused and in their possession. The prosecution successfully proved that the accused had no lawful explanation for their possession of these valuables, which belonged to the deceased (!) (!) .
The testimonies of witnesses, including those who saw the accused in and around the scene, were found credible and reliable despite cross-examination and the absence of formal identification procedures such as Test Identification Parades (TI Parade) (!) (!) (!) (!) .
The forensic evidence, including chemical analysis and postmortem reports, established that the death of Varma was caused by homicidal means, specifically smothering and strangulation, with evidence of chloroform administration and blunt force injuries (!) (!) (!) (!) (!) (!) (!) .
The circumstantial evidence, including mobile call data records, movement of accused persons, seizure of gems, and their possession, collectively supported the inference of conspiracy, presence at the scene, and participation in the crime (!) (!) (!) (!) .
The court found that the accused shared a common intention to commit robbery and murder, which justified their joint liability under principles of criminal conspiracy and Section 34 IPC. The evidence demonstrated their active participation and planning, leading to the commission of the crimes (!) (!) .
The legal distinction between murder and culpable homicide not amounting to murder was clarified, emphasizing that the intent, knowledge, and nature of injuries determine the appropriate charge and punishment (!) (!) (!) .
The court held that the accused’s actions, including administration of chloroform, infliction of injuries, and participation in the conspiracy, satisfied the legal criteria for murder, and they were liable accordingly (!) (!) .
The court reiterated that every conviction must be followed by a sentence, and failure to impose a sentence is illegal. The sentences for the convicted accused were accordingly imposed, with some modifications to ensure proper legal compliance (!) (!) (!) .
Regarding the acquittal of certain accused, the court noted the importance of re-evaluating evidence and the presumption of innocence, emphasizing that appellate courts should only interfere if the original judgment is found to be perverse or based on incorrect appreciation of evidence (!) (!) (!) .
The court clarified that orders regarding property disposal do not decide ownership rights but only pertain to the immediate possession, and civil proceedings are to determine ownership if necessary (!) (!) (!) (!) (!) (!) .
The evidence supported the conclusion that the accused conspired and planned the offence, with corroborative testimonies and forensic analysis reinforcing their involvement. The absence of explanations from the accused regarding possession of valuables further substantiated their guilt (!) (!) (!) .
The procedural aspects, including the conduct of police investigations, identification procedures, and collection of forensic evidence, were found to be proper and in accordance with legal standards, despite some procedural lapses pointed out by the defense (!) (!) (!) .
The court dismissed the appeals and revisions challenging the convictions and acquittals, affirming the findings of guilt for the accused involved in conspiracy, murder, and robbery, and upheld the legal principles governing such cases (!) (!) (!) .

Please let me know if you need further elaboration or specific legal advice based on these points.

JUDGMENT :

Hariprasad, J.

This batch of criminal appeals and a revision petition arise out of the judgment in S.C.No.550 of 2013 on the file of the Additional Sessions Court-VI, Thiruvananthapuram. Six accused persons were charge-sheeted for offences punishable under Sections 120B, 396, 302, 201, 328, 465 and 471 read with Section 34 of the Indian Penal Code, 1860 (in short, "IPC"). After examining 72 witnesses on the prosecution side and eight witnesses on the defence side and also after considering 244 documents exhibited for the prosecution, 25 documents for the defence, X1 series court exhibits and 143 material objects, the trial court came to a conclusion that the accused 1 to 5 are guilty of criminal conspiracy for committing murder, dacoity, forgery, using as genuine a forged document which is known to be forged, administering a stupefying drug on the deceased with intent to cause hurt and causing disappearance of evidence of the offence committed. Apart from the above, they found to have committed grave offences of murder and dacoity pursuant to the conspiracy hatched. Imprisonment for life, other sentences for different terms and fine have been imposed on them. 6th accused was found to be not guilty of any of the offences alleged by the prosecution and he is acquitted under Section 235(1) of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”).

2. For the sake of convenience, the appellants, who challenged the conviction and sentence, are described hereunder in their respective ranks before the trial court. 1st accused preferred Crl.Appeal No.567 of 2014 assailing the conviction and sentence. 2nd accused filed Crl.Appeal No.1121 of 2015 disputing correctness of his conviction and sentence. Similarly, Crl.Appeal No.576 of 2014 is filed by the 3rd accused, Crl.Appeal No.665 of 2014 is filed by the 4th accused and Crl.Appeal No.800 of 2014 is filed by the 5th accused. Crl.Appeal No.129 of 2016 is filed by the State, challenging correctness of the acquittal of 6th accused. For the same purpose, another appeal, bearing number Crl.Appeal (V) No.21 of 2019, has been filed by a lady, who was examined as PW2 in the trial and who claimed to be the wife of deceased Harihara Varma (in short “Varma”, hereafter). She filed the appeal under proviso to Section 372 read with Section 2(wa) of Cr.P.C. Crl. Appeal No.609 of 2016 is filed under Section 454(1) Cr.P.C. by a third party claiming to be the wife of deceased Varma. She is aggrieved by the direction in the trial court's judgment to handover movable properties to PW2, including the precious stones, belonged to Varma on a finding that she is his legally wedded wife.

3. Though the trial court found the accused 1 to 5 guilty of murder under Section 302 IPC and also of dacoity with murder defined under Section 396 IPC, it made an observation that there need be no separate punishment under Section 302 read with Section 120B IPC. This reasoning, according to a bench of this Court, which heard the appeals at the time of admission, was clearly illegal. The bench observed that the trial court ignored the fundamental principle that every conviction should be followed by a sentence. No doubt, whether the convict should suffer the sentence consecutively or concurrently is a matter to be judiciously decided by the court. Hence this Court suo motu registered Crl.Revision Case No.5 of 2016.

4. Heard Sri.B.Raman Pillai, learned senior counsel appearing for accused 3 to 5, Sri.Sasthamangalam S.Ajithkumar, learned counsel appearing for 1st accused, Sri.P.K.Varghese, learned counsel appearing for 2nd accused, Sri.R.Anil, learned counsel appearing for 6th accused, Sri.P.Vijayabhanu, learned senior counsel appearing for appellant-victim (PW2), Sri.C.S.Manu, learned counsel appearing for appellant in Crl.Appeal No.609 of 2016 and Sri.P.K.Mohanan, learned counsel appearing for 2nd respondent (PW2) in C

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2020 Supreme(Ker) 530

Cases Referred (50)