A security guard's murder during a burglary led to convictions based on circumstantial evidence. The court accepted the fingerprint evidence, upheld the convictions of three accused and declined to disturb two acquittals. All appeals, including the State's appeal, were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941
CRL.A.No.773 OF 2015
AGAINST THE JUDGMENT IN SC 559/2013 DATED 30-10-2014 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM
C.P.NO.4/2013 OF ADDL.JFCM, ERNAKULAM
CRIME NO.1481/2012 OF PANANGAD POLICE STATION , ERNAKULAM
APPELLANT/ACCUSED NO.3:
SEKHAR
AGED 30 YEARS S/O.SABHANAYAKAM, KANTTANDIKUPPAM DESOM, MERK THREUVU, KADAMPULIYOOR PO, PANDURUTTY TALUK, KADALOOR DIST. THAMILNADU
BY ADV. SRI.M.J.SANTHOSH
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OFFICER, E.T SOUTH POLICE STATION, THROUGH PUBLICL PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
SRI.S.U. NAZAR-SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1706-2019, ALONG WITH CRL.A.1117/2015, CRL.A.882/2015, CRL.A.77/2017, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.773/15 & conn.cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941
CRL.A.No.1117 OF 2015
AGAINST THE JUDGMENT IN SC 559/2013 DATED 30-10-2014 OF II ADDITIONAL SESSIONS COURT,ERNAKULAM
CP 4/2013 OF ADDL.JFCM, ERNAKULAM
CRIME NO.1481/2012 OF PANANGAD POLICE STATION , ERNAKULAM
APPELLANT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, ERNAKULAM SOUTH.
BY SR. PUBLIC PROSECUTOR SRI. S.U NAZAR
RESPONDENT/ACCUSED 2 & 4:
1 EZHIL RAJA
S/O.CHAKRAVARTHY, HOUSE NO.370, KATTANDIKUPPAM EAST STREET, KADAMPOLIYOOR PO, PANDURUTTY TALUK, KADALOOR DISTRICT, TAMIL NADU.607103
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2 THANKAMONY S/O.RAJAGOPAL, KATTANDIKUPPAM DESOM, MERK THERUVU, KADAMPOLIYOOR PO, PANDURUTTY TALUK, KADALOOR DISTRICT, TAMIL NADU.607103
R1 BY ADV. SRI.RAHUL SHENOY R1 BY ADV. SRI.RAVI KRISHNAN R1 BY ADV. SRI.S.SREENATH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1706-2019, ALONG WITH CRL.A.773/2015, CRL.A.882/2015, CRL.A.77/2017, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.773/15 & conn.cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941
CRL.A.No.882 OF 2015
AGAINST THE JUDGMENT IN SC 559/2013 DATED 30-10-2014 OF II ADDITIONAL SESSIONS COURT,ERNAKULAM
CP 4/2013 OF ADDL.JFCM, ERNAKULAM CRIME NO.1481/2012 OF PANANGAD POLICE STATION , ERNAKULAM
APPELLANT/ACCUSED NO.5:
SELVAM
S/O.EZHUMALAI, KAATTANDIKUPPAN ROAD, MERK THERUVU, KADAMPOLIYOOR P.O., PANDURUTTY TALUK, KADALOOR DISTRICT, TAMILNADU, C.NO.2070, CENTRAL PRISON, VIYOOR.
BY ADV. SRI.LAVARAJ M.G.
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682 031.
BY SR. PUBLIC PROSECUTOR SRI. S.U. NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1706-2019, ALONG WITH CRL.A.1117/2015, CRL.A.773/2015, CRL.A.77/2017, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.773/15 & conn.cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941
CRL.A.No.77 OF 2017
AGAINST THE JUDGMENT IN SC 559/2013 DATED 30-10-2014 OF II ADDITIONAL SESSIONS COURT,ERNAKULAM
CP 4/2013 OF ADDL.JFCM, ERNAKULAM CRIME NO.1481/2012 OF PANANGAD POLICE STATION , ERNAKULAM
APPELLANT/ACCUSED NO.1:
SABHAPATHY
AGED 32 YEARS S/O.VENU, KANTTANDIKUPPAM DESOM, MERK THREUVU, KADAMPOLIYOOR PO, PANDURUTTY TALUK, KADALOOR DIST., THAMILNADU
BY ADV. SRI.M.J.SANTHOSH RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY CIRCLE INSPECTOR OFFICER, E.T. SOUTH POLICE STATION, THROUGH GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM
BY SR.P.P. SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1706-2019, ALONG WITH CRL.A.1117/2015, CRL.A.773/2015, CRL.A.882/2015, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.773/15 & conn.cases
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J U D G M E N T
[ CRL.A.773/2015, CRL.A.1117/2015, CRL.A.882/2015,
CRL.A.77/2017 ]
Shaffique, J.
These appeals relates to the challenge made against judgment dated 30/10/2014 in SC No.559/2013 of the Additional District and Sessions Judge-II, Ernakulam.
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and he remains on duty till 6 a.m the next day. He was employed by PW11 Reghu, who is the owner of KVR Securities. According to PW1, Bose used to come back home in the morning and since he did not come home in the morning on 30/10/2012, as requested by his grandmother, PW1 and his grandmother came to the said house in his motor cycle, where his grandfather was the security guard. The gate was closed and there was no response from the mobile phone of Bose. The gate was under lock and key. He jumped the gate. He noticed that the northern door of the house was broken open. He did not see Bose inside the house. When he came out, he saw Bose lying on a cot on the northern side verandah. The legs and hands of Bose were tied together with plastic rope. PW1 noticed that Bose was dead. He therefore proceeded to Panangad Police Station and gave Ext.P1 FIS. Same was recorded by PW10, the Sub Inspector of Police and Ext.P7 FIR was registered.
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of occurrence on getting information from the Circle Inspector of Police, Kochi City South. They reached the scene of occurrence at about 11 am on 30/10/2012. PW25 the investigating officer also reached the scene of occurrence. The dead body was examined and they prepared Ext.P2 inquest report. PW2 is a witness to the inquest and he has attested the report. PW3 is the son of Bose who also identified the victim. He also identified the material objects belonging to the victim which were MO1 to MO3, 5, 7 to 11, 13 and 16. The legs of Bose were tied using MO6 piece of cloth and hands were tied with a plastic rope MO4. The body of Bose was sent for post-mortem which is conducted by PW7 Dr.Syriac Job, who was the Additional Professor and Deputy Police Surgeon in the Government T.D. Medical college. He noticed the following ante-mortem injuries.
2. Abrasion 0.4x0.4 cm right forehead 2 cm above outer end of eyebrow.
3. Abrasion 0.5x0.4 cm on right forehead 3mm inner to injury No.2.
4. Abrasion 1.8x0.4 cm right side of face oblique
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lower outer end 1.5 cm above angle of mouth.
5. Abrasion 1.5x0.5 cm right side of face horizontal 1 cm below outer end of injury No.4.
6. Multiple abrasions 1x0.1 to 0.3x0.2 cm right side of face just inner to injury No.4 and 5 over an area 6x3 cm.
7. Multiple spotted abrasions 3x0.4 cm upper lip just below nostril right side.
8. Multiple abrasions over an area 3x1 cm upper lip just above lip border 1 cm outer to midline, right side.
9. Abrasions 1x0.5cm left side of lower jaw 0.5 cm outer to midline 1.5 cm below lip border.
10. Internal contusion 4x3 cm upper lip, both sides, full thickness.
11. Lacerated wound 0.3x0.2 cm right side of lower lip 1 cm right to midline with contusion whole of lower lip full thickness. The outer lower margins of right upper central incisor was sharper”.
PW7 opined that Bose died due to smothering. He also opined
that injury Nos. 4 to 10 are typical consequence of applying force
on the face. MO5 was the towel which was used for smothering. Ext.P44 report from the FSL proves that MO5 was stained with human blood. At any rate, it is rather clear from the scientific evidence that Bose died due to smothering and it is a homicide.
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investigating officer found that the building belonged to PW19 Smt.Radha Vaidhyanathan, who was the wife of Senior Counsel Sri.Vaidhyanathan. Ext.P3 is the scene mahazar prepared wherein it was found that the door was destructed. Pieces of laterite stone were also taken note of in Ext.P3. PW4 is an attestor to Ext.P3.
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prosecution also obtained the finger prints of accused 1, 3 and 5 from the scene of crime and when compared with the finger prints of the said accused, those matched. The investigation also revealed that accused Nos. 1 to 5 were in and around the scene of occurrence on 29/10/2012 by around 5.30 p.m, and until 3.30 a.m on 30/10/2012. After considering the circumstances that the accused persons were very much available in the locality during the relevant time and having found that the finger prints of accused, 1, 3 and 5 matched with their finger prints and recovery of MO23 on the basis of confession statement of A1 were the circumstances which were proved by the prosecution and taken note of by the trial Court to convict accused 1, 3 and 5. The 2nd and 4th accused were found, not guilty, as the prosecution was unable to prove that they entered the building compound.
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in the locality or in nearby places by itself cannot be proof enough to indicate that accused had committed burglary in the scene of occurrence and for that reason, commission of murder. The only other material relied upon by the prosecution was the finger prints of accused 1, 3 and 5. The argument is that the specimen finger prints of the accused were not taken in the presence of Magistrate as contemplated under the Identification of Prisoners Act, 1920.
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judgment in Mahmood v. State of U.P. [(1976) 1 SCC 542] it
was also argued that the conviction based on a solitary circumstance namely the finger prints of the accused near the dead body at the scene of occurrence by itself cannot be a reason for conviction.
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judgment of this Court in Babu v. State of Kerala (2015 KHC 7029) wherein it has been held that the chain of circumstances is a flexible and elastic one and can never be mechanically rigid. The conclusiveness of the circumstances is what that matters, and not the number of links. There could even be cases where the chain of circumstance may be complete with two or three links. Reference is also made to the judgment in Gulab Chand v. State of M.P. [(1995) 3 SCC 574] wherein it is held that when stolen articles are recovered on the basis of confession statement of the accused, no inference can be drawn that the said person is guilty of the offence of murder and robbery, but the culpability for the said offences will depend on the facts and circumstances of each case. If it is found that the murder and robbery have been proved to have been integral parts of the same transaction, a presumption will arise under Illustration (a) of S.114 of Evidence Act, that the accused had committed the murder of deceased and had also committed robbery of the ornaments. In Palan v. State (1973 KLT 886), this Court also held that in cases where robbery and murder are so connected as to form part of the same
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transaction, the unexplained possession of the stolen property will not only be presumptive evidence against the accused on the charge of robbery, but also on the charge of murder.
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to establish that the accused persons were in and around the city and nearby the scene of occurrence between 5.30 p.m on 29/10/2012 and 3.30 a.m on 30/10/2012. The case of the defence is that those witnesses have been put up by the police and are planted and even otherwise, presence of accused in the locality by itself does not prove anything. Evidence of PW5, PW12, PW13, PW17 and PW21 are relevant in this regard.
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about 5.30-6.00 p.m., unusually 5 tamilians came to the toddy shop and PW13 Rajesh had given them toddy. He specifically noticed them and he had identified accused 1 to 5.
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Sabhapathy (A1) was wearing and the pants MO20. The accused consumed toddy but they did not have tapioca as they complained about it. Though he was cross-examined at length, there was no omission or contradiction in his evidence.
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Security Guard near Maradu. He heard about the incident from the police officer at the aid post. That was on 30/10/2012. On 29/10/2012, by night around 12, he had gone for a trip to Kundannoor. At 3.00 a.m, he had gone to Kumbalam for a trip. It was near Kumbalam toll junction. After dropping a person, he was coming through the bye-pass. When he reached near Kannadikkadu, 5 persons asked him to stop the auto. He stopped his autorickshaw. They asked him to drop them at South Railway station and he dropped them there. He got `200/-. According to him, the time they boarded his auto was by around 3.30 a.m. They were wearing pants and shirt and they were talking in Tamil, in a low voice as if it is a secret. He said he could identify all the persons as he noticed them when they got out of the auto.
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very near the scene of occurrence. To that extent, their evidence is relevant. Then the question is whether the accused have actually committed the robbery and murder.
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crime which was obtained from the wooden door which matched with the finger print of first accused. The finger print matched in respect of 8 characteristics and therefore he finalised that it belongs to one person. Ext.P17 is his report. The finger prints and photographs are produced as Exts.P17(a) and (b). The specimen finger print of A5 was also received from the police station. It was compared with the chance finger prints and the finger print obtained from the steel almirah especially the right little finger impression matched with that of A5, in 8 characteristics. The report is Ext.P18 and Exts.P18(a) and (b) are the photographs of the chance finger print and the specimen. Similarly, he could compare and match the finger prints of A3's right middle finger impression which was found from the bed room door frame. Ext.P19 is the said report and Exts.P19(a) and P19(b) are the photographs. In cross-examination, it is stated that he obtained 9 chance prints from the crime spot.
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provided under Identification of Prisoners Act and therefore the reports Exts.P17, P18 and P19 and the oral testimony of PW22 cannot be accepted. But perusal of the cross-examination of PW22 and PW25 would only indicate that they were questioned about the manner in which chance fingerprints were obtained from the scene of occurrence. There is no challenge that the investigating officer had falsely sent the specimen finger impressions to PW22. That apart, the chance fingerprint and the finger impressions of the accused received by the fingerprint expert from PW25 has also been exhibited before Court and no challenge had been made with reference to the specimen finger impression of the accused. Only when a challenge is made to the specimen finger impression of the accused that the veracity of the evidence becomes questionable. Of course, it is to avoid suspicion regarding the evidence, that the Apex Court observed in the judgments already cited that it is better to take the fingerprint impressions in the presence of a Magistrate. But in a case where there is no challenge at all, as to whether the specimen fingerprint impressions taken by the police is in any
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way irregular or improper, the Court below was justified in accepting the evidence of PW22, as sufficient proof that accused 1, 3 and 5 were inside the building where the burglary occurred.
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there regularly. PW20, brother of PW19 had deposed that when he reached the scene, the police was present there. The door on the northern side was broken. One granite piece and two-three stones were lying there. He had a key with him. He opened the main door and police went inside. The bedroom door on the ground floor was also broken with a stone. The almirah was also lying open. Other damage also had been caused. He had given a statement on 30th . His sister PW19, came on 4/11/2012 and the Circle Inspector of Police questioned her. She stated about the loss of gold ornaments and money. He admitted that they have stated to the police regarding the loss of money and gold ornaments only after his sister had come. When he was asked why he did not mention to the police regarding loss of gold and money, his answer was that he did not know about it and when he asked his sister (PW19), she told him that unless she comes, she will not be able to say so. It is based on this evidence that it is argued that the loss of gold ornaments and money was a invented story to suit the prosecution case. But it could be seen from the evidence of PW25 that the gold bangle MO23 was
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recovered from the residence of A1, based on his confession statement. PW19 had identified the said gold bangle. There is no reason for her to give false evidence before Court. Therefore, we have no hesitation to conclude that MO23 gold bangle belonged to PW19 and it was recovered u/s 27 of the Evidence Act on the basis of the statement given by the first accused. Though two gold chains and `1,10,000/- were also found missing from their house, there is no recovery to that extent. Therefore, there is proof enough to show that house trespass and robbery had been committed by the accused. Taking into account the fact that only the fingerprint impression of three of the accused could be located from the building, their presence alone stands proved.
Bose. At the time when PW1 and others including PW10 and PW25 saw the victim, he was dead. He had injuries on his face, he was kept in a tied condition and Doctor who conducted postmortem opined that death was due to smothering. Apparently, there is evidence to prove that Bose was engaged as a Security Guard for the said building and property belonging to
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PW19. Therefore, if accused requires to conduct robbery, necessarily, the Security Guard had to be immobilized. For that purpose, they have tied him and probably when Bose started to make sound, they have smothered him, which resulted in his death.
(i) Bose was working as a Security Guard of the a building belonging to PW19.
(ii)Bose was found dead on 30.10.2012, morning in the said
building. His hands and legs were tied and he was smothered to death.
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(iii) Accused were present in or near the scene of occurrence between 5.30 pm on 29/10/2012 to 3.30 am on 30/10/2012. The accused were identified by PW12, PW13, PW17 and PW21.
chain which is proved beyond reasonable doubt and despite the arguments of the learned counsel for appellants, it is a case where before committing burglary, the Security Guard was murdered and thereafter they have committed theft of articles.
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which does not require interference. Appeals are hence dismissed.
Sd/-
A.M.SHAFFIQUE
JUDGE Sd/N.ANIL KUMAR Rp True Copy JUDGE PS to Judge
3 issues framed by the court
Could fingerprint evidence be accepted without a Magistrate's presence when the specimen impressions were not challenged as irregular or improper?
Did the circumstantial evidence prove the involvement of accused 1, 3 and 5 in the burglary and murder beyond reasonable doubt?
Was interference warranted with the acquittal of accused 2 and 4?
Colour shows how this judgement treated each authority
Suresh v. State (NCT) of DelhiReferred¶125
Suresh v. State (NCT) of Delhi (2010 KHC 7604)
Mahaveer Prasad v. State of RajasthanReferred¶125
Mahaveer Prasad v. State of Rajasthan (2018 KHC 4115)
Prakash v. State of KarnatakaExplained¶168
Prakash v. State of Karnataka [(2014) 12 ) SCC 133] · Who else cites this
Mohammed Aman v. State of RajasthanExplained¶168
Mohammed Aman v. State of Rajasthan [(1997) 10 SCC 44] · Who else cites this
Mahmood v. State of U.P.Referred¶128
Mahmood v. State of U.P. [(1976) 1 SCC 542] · Who else cites this
Babu v. State of KeralaReferred¶133
Babu v. State of Kerala (2015 KHC 7029)
Gulab Chand v. State of M.P.Referred¶133
Gulab Chand v. State of M.P. [(1995) 3 SCC 574] · Who else cites this
Palan v. StateReferred¶133
Palan v. State (1973 KLT 886)
3 provisions across 3 enactments
SEKHAR
STATE OF KERALA
EZHIL RAJA
THANKAMONY
SELVAM
SABHAPATHY
A.M.SHAFFIQUE
N.ANIL KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
