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2021 Supreme(Ker) 233
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. VINOD CHANDRAN, M.R. ANITHA, JJ.
Jaseer M.K. S/o Kunhu Maraikar – Appellant
Versus
State of Kerala, Rep. by the Public Prosecutor, High Court of Kerala – Respondent
Crl. Appeal Nos. 1019, 1025, 1232 of 2014, 40 of 2015, 960 of 2020
Decided On : 09-04-2021
Advocate Appeared:
For the Appellants : Sri. P. Vijaya Bhanu, Sri. P.M. Rafiq, Sri. V.C. Sarath, Sri. M. Revikrishnan, Sri. Ajeesh K. Sasi, Sri. Vipin Narayan, Sri. Thomas J. Anakkallunkal, Smt. Pooja Pankaj, Sruthy N. Bhat.
For the Respondent: Sri. Nicholas Joseph.
Point of Law: Criminal Law - Testimony of three witnesses - Ocular testimony of three witnesses, wife and children of deceased and clear identification made are enough to convict A2 and A4 to A7 - Recoveries made are additional circumstances against those, whose recoveries court found proved - A2 is proved to have pledged MO-12 to MO-18 ornaments with PW-30, A2 and A4 sold ornaments to PW-19, which was melted and ingot recovered.
Headnote:
Indian Penal Code, 1860 - Sections 120B, 342, 324, 396, 302, 449, 402 201 r/w 149 - Criminal Procedure Code, 1973 - Section 161 - Offence of Criminal conspiracy and Unlawful assembly - Circumstantial evidence - Murder and house-trespass - Convicted Accused 1 to 7 And Acquitted to Accused No. 8 - Appeal against - Test identification parade.
Finding of the Court:
The theory and practice of identification was examined threadbare, to ascertain principles which could help make the appropriate law and procedure more uniform and thereby serve as a definite guide to Bar and Subordinate Courts in State - Identification proceedings were held to be as much in the interest of the prosecution as in the interest of the accused - A2 and A4 absconded and were arrested from Allahabad, which is another incriminating circumstance against them - A7’s confession led to recovery of laptop bag pieces and series ATM cards belonging to deceased - As far as A1 and A3 are concerned evidence of their having operated behind scenes is clear from purchase of SIM cards, mobile phones in which those cards were used, all of which were used just before crime proper and immediately thereafter abandoned - They were found to be in frequent communication with each other, their close association and their being together on crucial day is a very incriminating circumstance. Coupled with this are recoveries made on confession - A1’s confession led Police to MO-8 Control Panel Box of security system installed in pillar of gate of house of deceased. A3 led Police to school bag, Note book as also ID, all belonging to PW-3 - These recoveries were made before arrest of others, who physically were present at crime scene, who removed these items from the subject house - A1 and A3 also had contact with A2 and A5 as revealed from call details - No one would have suspected A1 and 3, close relatives of deceased and the others were total strangers - Every crime, however well planned have certain chinks which eventually result in truth coming out - The effort of criminals were not only frustrated by minimal loot, but their planning came to naught for reason of technological aid employed by investigator - Prosecution succeeded in proving guilt of accused from evidence led, both direct and circumstantial; latter cleverly unearthed by to meticulous examination of call details in and around area has brought culprits to book, who otherwise would have eluded detection.
Result: Appeal dismissed.
The term "454 IPC" refers to Section 454 of the Indian Penal Code, which pertains to "house-trespass in order to commit an offence." Based on the provided legal document, the relevant information regarding this section can be summarized as follows:
- The case involved a well-planned house trespass that resulted in murder, violence, theft, and destruction of evidence within the residence of the deceased (!) (!) .
- The evidence established that the accused entered the house unlawfully with the intent to commit theft and other offences, which aligns with the offense under Section 454 IPC.
- The prosecution demonstrated that the accused trespassed into the house, used violence, and committed murder, which constitutes a clear case of house-trespass with the intent to commit an offence (!) (!) (!) .
- The recovery of items such as the control panel, hard disc, and other materials from the house further supports the conclusion that the accused entered with criminal intent, fulfilling the criteria of Section 454 IPC (!) (!) .
In essence, the evidence indicates that the accused unlawfully entered the house with the purpose of committing theft and other crimes, which satisfies the ingredients of Section 454 IPC. The case confirms that such house-trespass, especially when accompanied by violence and criminal acts, constitutes an offence under this section.
JUDGMENT :
K. VINOD CHANDRAN, J.
The best laid schemes of Mice and Men oft go awry, an 'lea'e us nought but grief an' pain, For promis'd joy!
[Robert Burns]
1. A seemingly well planned loot motivated by avarice turned sour with death, nay murder of the house owner. Technology led to the arrest of the accused; both the perpetrators and the conspirators, who are left counting the bars. ‘Foresight in vain’ argues the prosecution relying on the direct evidence as also the circumstantial to plug the guilt on the accused, seven in number. The eighth accused was acquitted by the trial Court.
2. The charges are under Sections 120B [criminal conspiracy], 143 [unlawful assembly], 402 [assembly for committing dacoity], 449 [house-trespass for commission of offence punishable with death] 342 [wrongful confinement], 324 [voluntarily causing hurt with dangerous weapons], 396 [dacoity with murder], 302 [murder] and 201 [disappearance of evidence] read with Section 149 of the IPC. A1 and A3 were convicted under Section 120B and Section 302 and the other accused for the offences herein above mentioned except Section 302. The prosecution examined 140 witnesses, marked 266 exhibits and produced 50 material objects. The defence marked D1 to D4 contradictions and exhibits. The accused were handed down appropriate sentences, which are to run concurrently. The conviction and sentence are challenged in the appeals.
For and Against Acquittal:
3. Sri. B. Raman Pillai, learned Senior Counsel assisted by Advocate Sri. Sujesh Menon V.B. appearing for A2 and A4, pointed out various contradictions from the FIS, S.161 statements and depositions of PWs. 1 to 3. The test identification parade [for brevity ‘TIP’] was seriously assailed pointing out that the Magistrate [PW-98], who carried out the same, has not deposed to the identification proper. The accused were taken to various places for investigation before the TIP. The conspiracy is not proved and the mere presence of A2 and A4, as spoken of by PW-104, at Kasaragod does not implicate them in the crime. The mobile phones of A2 and A4 were stationary and in Trichur, where they ordinarily reside. The FIS does not speak of PW-1 being able to identify the accused and in the context of his statement that the trespassers had their face covered; it is a very remote possibility. PWs. 1 and 2 could not have identified A2 and A4 and PW-3, a child, is definitely a tutored witness. Many of the overt acts spoken of against the accused have not come out in the FIS, which makes the direct evidence weak for grounds of obvious embellishments. The inconsistencies in direct evidence and improbability of the circumstantial evidence including the recoveries, make this a fit case for acquittal of the accused.
4. Sri. P. Vijayabhanu, learned Senior Counsel assisted by Advocate Ms. Pooja Pankaj, appearing for A5 to A7, took us through the evidence to pick-holes in the incriminating material against each of the said accused. The recovery as against A3 and 5 to 7 even as per the evidence led by the prosecution falls on its face for reason of it being obvious plants carried out by the Investigating Officer [IO]. The confessions said to have been made by the accused as marked by the prosecution includes that of involvement in the crime, which causes prejudice to the accused for reason of the bias created in the mind of the Judge trying the case. For that sole reason, the accused are to be acquitted. The TIP is challenged on the ground that the objections raised by each of the accused having not been considered by the trial Court. The IO's [PW-114] evidence in Court also is to the effect of the accused having been taken to the scene of occurrence prior to the commencement of trial; facilitating easy identification in Court. There is absolutely no scientific evidence linking the recoveries with the crime and though the blood sample taken from A6 is said to have matched the DNA detected from the piece of gloves recovered from the scene of occur
