Point of Law: Section 114 of Indian Evidence Act which enables Court to presume existence of certain facts provides that “Court may presume existence of any fact which it thinks likely to have happened, regard being had to common course of natural events, human conduct and public and private business, in their relation to facts of particular case.”

JUDGMENT :

(P. B. Suresh Kumar, J.)

The first accused in S.C. No.107 of 2014 on the files of the Additional District and Sessions Court – IV, Pathanamthitta who stands convicted and sentenced for having committed the offences punishable under Sections 457, 342, 397 and 302 of Indian Penal Code (IPC), challenges in this appeal his conviction and sentence in the said case.

2. Body of one Muhammed Kunju who was working as a security guard in a residential house was found in a partly decomposed state in the outhouse of the said residential house on 16.01.2012. A case was registered in connection with the death of Muhammed Kunju on 16.01.2012 by Adoor Police, on the basis of the information furnished by the son in law of the deceased, and a final report has been filed in the case, after investigation, against the accused alleging commission of the offences punishable under Sections 457, 342, 397, 302 and 120(b) of IPC. The accused, four in number, are natives of Nepal. Among them, the second accused was residing in a rented house near the house where the occurrence took place.

3. The accusation in the case is that in furtherance to a criminal conspiracy hatched between the accused to murder Muhammed Kunju and commit robbery in the house where he is working as security guard, accused Nos.1, 3 and 4 trespassed into that house at about 1 a.m. on 13.01.2012, strangulated Muhammed Kunju to death using clothes, and after keeping the dead body in the outhouse, the accused broke open the kitchen door of the house using screwdriver, iron rods, hacksaw blades etc. and committed theft of a silver lamp, gold ornaments weighing 45.400 grams and silver ornaments weighing 66.500 grams.

4. As accused Nos.3 and 4 could not be apprehended, the final report as against them was split up and accused Nos.1 and 2 were committed for trial. As accused Nos.1 and 2 pleaded not guilty of the charges framed against them, the prosecution examined 26 witnesses as PW1 to PW26 and proved 44 documents through them as Exts.P1 to P44. MOs 1 to 13 are the material objects in the case. After the prosecution tendered its evidence, when the accused was questioned under Section 313 of the Code of Criminal Procedure (the Code), they denied the incriminating circumstances brought out in evidence against them and maintained that they are innocent. Since the Court of Session did not consider the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. The accused, however chose not to adduce any evidence.

5. The Court of Session, in the circumstances, on an appraisal of the materials on record, found the first accused guilty of the offences alleged against him and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- for the offence punishable under Section 457 IPC, to undergo rigorous imprisonment for one year for the offence punishable under Section 342 IPC, to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-for the offence punishable under Section 397 IPC and to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 302 IPC. Default sentences were also imposed on the accused. The second accused was, however, acquitted as he was found not guilty of the offences. The first accused is aggrieved by his conviction and sentence in the case and hence, this appeal.

6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.

7. The case is one built on circumstantial evidence. The learned counsel for the appellant, after taking us through the oral and documentary evidence adduced by the prosecution, contended that the circumstances established in the case do not prove the guilt of the appellant beyond reasonable doubt. It was pointed out by the learned counsel that it was solely based on the recovery of some of the stolen articles and the implements allegedly used for breaking open