{"id":160885,"date":"2011-01-21T00:00:00","date_gmt":"2011-01-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajith-kumar-aji-vs-state-represented-by-the-on-21-january-2011"},"modified":"2014-03-23T13:43:36","modified_gmt":"2014-03-23T08:13:36","slug":"ajith-kumar-aji-vs-state-represented-by-the-on-21-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajith-kumar-aji-vs-state-represented-by-the-on-21-january-2011","title":{"rendered":"Ajith Kumar @ Aji vs State Represented By The on 21 January, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ajith Kumar @ Aji vs State Represented By The on 21 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 2296 of 2006()\n\n\n1. AJITH KUMAR @ AJI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE REPRESENTED BY THE\n                       ...       Respondent\n\n                For Petitioner  :SMT.AYSHA YOUSEFF\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice K.M.JOSEPH\nThe Hon'ble MR. Justice M.L.JOSEPH FRANCIS\n\n Dated :21\/01\/2011\n\n O R D E R\n              K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.\n            ------------------------------------------------------\n                  CRL.APPEAL No.2296 of 2006-D\n               ----------------------------------------------\n                  Dated, this the 21st January, 2011\n\n                             J U D G M E N T\n<\/pre>\n
K.M.Joseph, J.\n<\/p>\n
              Appellant stands convicted under Section 302 of Indian<\/p>\n
Penal Code     and sentenced to imprisonment for life and fine of<\/p>\n
Rs.10,000\/-.   He further stands convicted under Section 449         and<\/p>\n
Section 382 of the IPC and sentenced to further imprisonment for five<\/p>\n
years each thereunder besides fine of Rs.5,000\/- on each count, the<\/p>\n
substantial sentences to run concurrently.\n<\/p>\n
      2. The case alleged by the prosecution briefly is as follows:<\/p>\n
      Deceased Elamma was residing alone in a four cents colony. On<\/p>\n
18th August, 2003 she was found dead. Upon her brother (Pw1) being<\/p>\n
informed and confirming her death he lodged complaint. The body<\/p>\n
was in a putrefied stage and after postmortem it was confirmed that<\/p>\n
she was beaten to death. Investigation revealed that the appellant<\/p>\n
who was staying in the locality had on 13.8.2003 trespassed into the<\/p>\n
house of the deceased hit her on the head with a wooden log and after<\/p>\n
 CRL.APPEAL No.2296 of 2006 -2-<\/span><\/p>\n
she was killed, robbed her of gold chain.\n<\/p>\n
            3. Before the Court of Sessions to which it was made over<\/p>\n
the prosecution examined Pws. 1 to 15. Exts.P1 to P22 were marked.<\/p>\n
Material Objects were identified and marked as MOs.1 to 13. The<\/p>\n
appellant did not adduce any defence evidence.<\/p>\n
            4. Learned counsel for the appellant would urge before us<\/p>\n
the following contentions. There is no reliable evidence against the<\/p>\n
appellant for the Court to enter the verdict of guilty against the<\/p>\n
appellant.    The Court below has itself disbelieved the prosecution<\/p>\n
version about the recovery of wooden log with which it was alleged<\/p>\n
that the appellant caused the fatal injury. The only other item of<\/p>\n
evidence which is used against the appellant is the recovery of gold<\/p>\n
necklace. He would point out various circumstances in an attempt to<\/p>\n
contend that the recovery is suspect and further that even if it is found<\/p>\n
that the recovery is found acceptable there is no reliable evidence to<\/p>\n
establish that the chain was the one which belonged to deceased<\/p>\n
Elamma.      He would contend that when the evidence against the<\/p>\n
appellant is only recovery in a case charged under Section 302 in<\/p>\n
particular, the Court would insist on the higher standard of proof and<\/p>\n
it would be entirely unwise and illegal to base the conviction on a<\/p>\n
 CRL.APPEAL No.2296 of 2006 -3-<\/span><\/p>\n
suspect recovery.    He would contend that Pw1 who is the brother of<\/p>\n
the deceased has in Ext.P1 FI Statement given on 18.8.2003 stated<\/p>\n
that he saw the deceased last on 15.8.2003. He would submit that<\/p>\n
this completely destroys the edifice of the prosecution case that the<\/p>\n
deceased was done away with on 13.8.2003. He submits that in order<\/p>\n
to square the death with the date on which MO-1 necklace            was<\/p>\n
allegedly pawned, the prosecution has made an attempt to make the<\/p>\n
date of death as 13.8.2003. There is no evidence to show that the<\/p>\n
incident occurred on 13.8.2003. He would contend that the medical<\/p>\n
evidence adduced in the case would belie     the prosecution case that<\/p>\n
the death took place on 13.8.2003. He would submit that the medical<\/p>\n
evidence would show that the death was caused between 72 to 120<\/p>\n
hours before the postmortem.         The postmortem was done on<\/p>\n
19.8.2003.     If that be so, he would submit that it is inconceivable<\/p>\n
that the death took place on 13.8.2003. He further contended that<\/p>\n
the medical evidence is to the effect that there will be liquefaction of<\/p>\n
the brain up to a maximum of 120 hours. He would contend therefore<\/p>\n
that it is not possible to accept the case of the prosecution that the<\/p>\n
death took place on 13.8.2003. In regard to the evidence adduced to<\/p>\n
prove that the deceased had a gold chain which was the chain MO-1<\/p>\n
 CRL.APPEAL No.2296 of 2006 -4-<\/span><\/p>\n
which was recovered on the strength of the alleged statement<\/p>\n
considered admissible under Section 27 of the Indian Evidence Act by<\/p>\n
the trial Court it is contended as follows:\n<\/p>\n
        PW1 is an aged man. It is difficult to believe that he could<\/p>\n
identify MO-1 as the necklace worn by his sister. Pw3, a neighbor of<\/p>\n
the deceased and a lady witness who has also purported to identify<\/p>\n
the ornament. It is contended by the learned counsel for the appellant<\/p>\n
Sri.V.K.Sidhik, that her evidence cannot be relied on as what she has<\/p>\n
said is not that MO-1 was the necklace worn by the deceased, but, she<\/p>\n
has said that it was like the ornament which was worn by the<\/p>\n
deceased.    Furthermore,     he    would  point out   the   following<\/p>\n
contradiction:\n<\/p>\n
       5. According to Pw1 and Pw5, the niece of the deceased who<\/p>\n
allegedly accompanied the deceased when she purchased the gold<\/p>\n
ornament, the purchase was made one year prior to the death and<\/p>\n
about one year ago respectively. On the other hand, Pw3 would state<\/p>\n
that she has seen Elamma wearing it and she showed it to her at the<\/p>\n
time of purchase and that she has said that she did not remember<\/p>\n
when.    Then she said that it was two to three months before the<\/p>\n
death. The evidence of PW5, the niece of the deceased cannot be<\/p>\n
CRL.APPEAL No.2296 of 2006 -5-<\/span><\/p>\n
accepted for the following reasons it is contended. PW5 has stated<\/p>\n
that she has not touched MO-1 ornament with her hands.           It is<\/p>\n
contended that the deceased was an elderly woman. She was deaf<\/p>\n
and not in a physically good condition. If actually PW5 had<\/p>\n
accompanied the deceased, she would have certainly played an active<\/p>\n
role having regard to the fact that she was a woman and of a younger<\/p>\n
age and she would have examined the gold ornament by taking it into<\/p>\n
her hands. It is contended that this would have been the normal<\/p>\n
behavior expected of a woman of her age if she had actually<\/p>\n
accompanied the deceased to purchase the ornament. It is also<\/p>\n
contended that when it was purchased it also had a golden cross. It is<\/p>\n
pointed out that the gold chain (MO-1) recovered pursuant to the<\/p>\n
alleged statement made by the appellant did not have a golden cross.<\/p>\n
The cross is stated as having the dimension of 3 cm x 2 cm and is of<\/p>\n
gold colour. It is recovered on 20.8.2003 at the time when the scene<\/p>\n
mahazar was prepared, underneath two mats in the house of the<\/p>\n
deceased. It is pointed out that Pw1 has in his deposition stated that<\/p>\n
he saw the appellant in the police station on 18.8.2003 though the<\/p>\n
arrest as such is recorded only on 26.8.2003. The appellant was seen<\/p>\n
by Pw1 two to three days from 18.8.2003 also, it is pointed out.   In<\/p>\n
 CRL.APPEAL No.2296 of 2006 -6-<\/span><\/p>\n
regard to the recovery of the cross under the scene mahazar on<\/p>\n
20.8.2003 it is contended that the evidence of Pw1 and Pw2 is that<\/p>\n
there is welding in the chain. It is contended that the necklace which<\/p>\n
is produced as MO-1 as having belonged to the deceased and which is<\/p>\n
recovered on the statement of the appellant under Section 27 of the<\/p>\n
Evidence Act which is apparently the very sheet-anchor          of the<\/p>\n
prosecution case cannot be the ornament which was actually owned<\/p>\n
and worn by deceased Elamma. It is pointed out that the cross alone<\/p>\n
was allegedly recovered under the two mats. There is a possibility of<\/p>\n
the actual chain which was worn by Elamma having been given to<\/p>\n
somebody else. It is contended that the dimension of the cross would<\/p>\n
show that it was a big cross and the prosecution case is improbable.<\/p>\n
It is further pointed out that MO-1 is stated to be ‘U’ shape and there<\/p>\n
are two hooks.       It is further contended that the case of the<\/p>\n
prosecution that the appellant had pledged MO-5 ring which belonged<\/p>\n
to Pw6 and the same was redeemed upon pledging MO-1 gold<\/p>\n
necklace cannot be believed.    It is submitted that the appellant was<\/p>\n
deriving his livelihood as a coconut climber and it is incredible to<\/p>\n
suggest that he could not raise Rs.300\/- for redeeming the gold ring<\/p>\n
which is alleged to have been pawned with Pw8. (It has come out in<\/p>\n
CRL.APPEAL No.2296 of 2006 -7-<\/span><\/p>\n
evidence that it was redeemed upon receipt of Rs.300\/-). It is further<\/p>\n
contended that MO-2, two gold ear rings alleged to have been worn by<\/p>\n
the deceased Elamma would have been stolen if the prosecution case<\/p>\n
against the appellant is to be believed.        Learned counsel for the<\/p>\n
appellant further submits that the weight of MO-1 as weighed by PW9<\/p>\n
gold smith is 7.900 grams. But, it is pointed out that in the records of<\/p>\n
PW8 it is shown only as 7.750 grams.           It is contended that the<\/p>\n
explanation of Pw8 by saying that usually it is shown in that fashion<\/p>\n
cannot be believed as in regard to MO-5 ring the weight was found to<\/p>\n
be 2.16 grams and it is the very same weight which is entered in his<\/p>\n
records. All these, he would submit is an attempt to point out that the<\/p>\n
recovery   of the chain cannot be believed and connected with the<\/p>\n
chain allegedly worn by the deceased.          Learned counsel for the<\/p>\n
appellant would submit that MO-2 ear rings was having a weight of 4<\/p>\n
grams.   (Learned counsel no doubt does not dispute the fact that<\/p>\n
there is no evidence to show the weight of the ornament). He would<\/p>\n
further submit that it is difficult to believe that the appellant would<\/p>\n
commit murder of Elamma for the purpose of committing theft. He<\/p>\n
would submit that actually Pw1 who is the brother of the deceased and<\/p>\n
Pw5 who is the niece of the deceased were cornered into giving<\/p>\n
 CRL.APPEAL No.2296 of 2006 -8-<\/span><\/p>\n
deposition as given as they would have been threatened by the police<\/p>\n
to the effect that they would be dealt with otherwise.<\/p>\n
             6. He would further submit that without prejudice to the<\/p>\n
contention that the appellant is innocent and is entitled to acquittal,<\/p>\n
he would contend as follows:\n<\/p>\n
       There may have been scuffle and the deceased may have fallen<\/p>\n
to the bed and suffered injury leading to her death. It is contended<\/p>\n
that the medical evidence supports this version.          It is further<\/p>\n
contended that Section 449 of IPC is inapplicable. It is submitted that<\/p>\n
there are wooden logs found in the premises where Elamma resided<\/p>\n
as is evident from the scene mahzar and the wooden log with which<\/p>\n
the injury may have been caused by using the wooden logs found<\/p>\n
inside the house that is the appellant would not have gone at any rate<\/p>\n
with the wooden log and there is no premeditation. There is only<\/p>\n
one injury and conviction under Section 302 IPC was not warranted at<\/p>\n
any rate. Learned Public Prosecutor supported the judgment.<\/p>\n
      7. PW1 is the brother of the deceased. He has stated, inter<\/p>\n
alia, as follows:\n<\/p>\n
      The deceased was not healthy and was undergoing treatment.<\/p>\n
CRL.APPEAL No.2296 of 2006 -9-<\/span><\/p>\n
She was residing alone. He saw her last on 11.8.2003 in the<\/p>\n
evening at 6 PM. (He deposes that the version given to the police<\/p>\n
that he saw her last on 15.8.2003, was a mistake). He would say<\/p>\n
that he had corrected it. The deceased used to wear a gold chain.<\/p>\n
That was missing.     There is a cross on the gold chain.     He<\/p>\n
identified MO1 gold chain. He deposed that another sister and a<\/p>\n
niece purchased MO1 one year back and gave it to the deceased.<\/p>\n
He was shown the gold chain in the police station. At that time,<\/p>\n
the accused was present. He has seen the accused near the house<\/p>\n
of the deceased earlier. In Cross-exmination he states that the<\/p>\n
body was decomposed. He denies the suggestion that on account<\/p>\n
of the foul smell, he did not go in to see the deceased. He denies<\/p>\n
having given statement about the death having taken place<\/p>\n
between 15.8.2003 and 18.8.2003. He has not touched the dead<\/p>\n
body. He went along for the post mortem. He noticed the ear ring<\/p>\n
on the dead body. Two-three days after, the cross was found<\/p>\n
CRL.APPEAL No.2296 of 2006 -10-<\/span><\/p>\n
under the mate. It is a small cross. He saw it being taken. He is<\/p>\n
not able to say how long or wide the cross is. He is unable to<\/p>\n
recollect the date on which the cross was recovered. When the<\/p>\n
body was taken for post mortem, he did not see the cross. On that<\/p>\n
day, in the afternoon, the cross was found.         There was no<\/p>\n
distinctive marks in the cross worn by the deceased. In answer to<\/p>\n
the question whether the cross was definitely that which was worn<\/p>\n
by the deceased, he says, he cannot say. Then he says that if he<\/p>\n
sees the cross, he can say. The sister who purchased the gold<\/p>\n
chain told that it weighed one sovereign and that the gold chain<\/p>\n
was of “Dhruvam” size. These were mentioned one year before<\/p>\n
the death. He states that in the gold chain, there was one welding<\/p>\n
done. He says that he has not mentioned it to the Police Officer.<\/p>\n
He says that it is he who got the broken gold chain welded. This<\/p>\n
also, he has not mentioned to the Police Officer. He denies the<\/p>\n
suggestion that MO1 was not that worn by the deceased. He saw<\/p>\n
CRL.APPEAL No.2296 of 2006 -11-<\/span><\/p>\n
the accused on the 18th and on 2-3 days thereafter. It must have<\/p>\n
been on the 20th or 21st. The accused sets up a case that the<\/p>\n
deceased did not have any gold chain, which is denied by PW1.<\/p>\n
He has not gone to purchase the gold chain.\n<\/p>\n
      8. PW2 is a neighbour. He has deposed that he was present<\/p>\n
at the time of the inquest and is a signatory.\n<\/p>\n
      9. PW3 is a neighbour of the deceased. She has stated that<\/p>\n
she saw the deceased last on 13.8.2003. She came back after<\/p>\n
visiting her mother’s house on 17.8.2003. The deceased used to go<\/p>\n
for domestic work. She was short of hearing. The deceased used<\/p>\n
to wear gold chain and ear ring. She saw the deceased from a<\/p>\n
distance and she did not notice whether the gold chain was there<\/p>\n
on the dead body. She states that she is able to identify the gold<\/p>\n
chain and ear ring worn by the deceased. She was shown MO1<\/p>\n
gold chain and she states that the deceased used to wear gold chain<\/p>\n
like MO1. She was shown MO2 ear ring and she states that the<\/p>\n
CRL.APPEAL No.2296 of 2006 -12-<\/span><\/p>\n
deceased was worn ear ring like MO2. She has seen gold chain,<\/p>\n
like MO1 worn by Bindu. She says that the accused is a person<\/p>\n
from that area. She has not gone inside the house of the deceased.<\/p>\n
She would say that the deceased had shown the gold chain to her<\/p>\n
2-3 months prior to her death.     She says that the gold chain<\/p>\n
weighed a sovereign from what the deceased told her.<\/p>\n
     10. PW4 is a resident of the colony. He is a witness to the<\/p>\n
recovery of MO3 wooden log. The recovery was made after one<\/p>\n
week of the discovery of the death. He has witnessed the accused<\/p>\n
being brought in a police jeep and the accused taking out MO3<\/p>\n
which was bloodstained. He says that some black and white gray<\/p>\n
hair were found in MO3. He has signed in the mahazar, marked as<\/p>\n
Ext.P3. He identified MO3 as the wooden log recovered through<\/p>\n
the accused.\n<\/p>\n
     11. PW5 is the niece of the deceased. She has testified that<\/p>\n
she had accompanied the deceased with another aunt of her to<\/p>\n
CRL.APPEAL No.2296 of 2006 -13-<\/span><\/p>\n
Shanker Jewellery at Alwaye to purchase MO1 gold chain. She<\/p>\n
says that the deceased used to wear gold chain and ear ring<\/p>\n
regularly. The deceased had ear ring earlier. The gold chain was<\/p>\n
purchased about a year prior to the death. Deceased did not have<\/p>\n
the capacity to go and buy the ornament by herself. She was short<\/p>\n
of hearing and her speech was incoherent and she had a limp.<\/p>\n
Along with the chain, a locket was also purchased. The speech of<\/p>\n
the deceased could be understood. The cross is the locket. The<\/p>\n
chain was about a sovereign and was of “Dhruvam” model. She is<\/p>\n
able to identify the ornaments worn by her aunt. She identifies the<\/p>\n
cross as the cross worn by the deceased. She also identifies MO1<\/p>\n
as the chain worn by the deceased. She also identifies the ear<\/p>\n
rings. She was called to the police station and she identified the<\/p>\n
gold chain in the police station. At that time, the accused was<\/p>\n
present. They have purchased 22 carat gold which is the pure<\/p>\n
gold. She has seen the gold chain being worn by the deceased and<\/p>\n
CRL.APPEAL No.2296 of 2006 -14-<\/span><\/p>\n
not held in her hands. So also, she speaks about the cross. The<\/p>\n
chain was welded. It was done by the uncle. The fact of breaking<\/p>\n
of the gold chain and the welding has been informed by the<\/p>\n
deceased herself. There is no particular mark in the cross. There<\/p>\n
are many crosses like the cross. She came to know that the cross<\/p>\n
was obtained from the house of the deceased as told by PW1. She<\/p>\n
knows about the other fashion of the gold chain. Deceased liked<\/p>\n
the gold chain having “Dhruvam” fashion. She is not able to say<\/p>\n
whether the gold chain was there on the body of the deceased. In<\/p>\n
Re-examination, she would say that at the time of purchase of the<\/p>\n
gold chain and cross, she had taken them and examined them.<\/p>\n
     12. PW6 is a resident of the colony in question. She says<\/p>\n
that she knows the accused. She says that the accused used to<\/p>\n
come to her house. He used to come for plucking coconuts. She<\/p>\n
states that the accused borrowed her gold ring for pledging it,<\/p>\n
when he was in need of money. The ring was redeemed and given<\/p>\n
CRL.APPEAL No.2296 of 2006 -15-<\/span><\/p>\n
back. She deposes that she had given the ring 3-4 times for<\/p>\n
pledging. The ring was given back before the death of Elamma.<\/p>\n
She is not able to remember exactly when it was so done. She has<\/p>\n
given statement before the Magistrate and admits her signature in<\/p>\n
the statement. The gold ring is marked as MO5. She says that the<\/p>\n
accused is a labourer and it is from the income from his vocation<\/p>\n
that the accused has redeemed the gold ring and given it to her.<\/p>\n
      13. PW7 is the brother-in-law of the deceased. He is a<\/p>\n
signatory to Ext.P5 scene mahazar. MO6 is the mat. MO7 is<\/p>\n
another mat. He has stated about the search for the gold chain and<\/p>\n
it was not recovered. He identified MO1 as the gold chain<\/p>\n
belonging to the deceased and he speaks about the recovery of<\/p>\n
MO1 chain and subscribing to Ext.P6 seizure mahazar as a<\/p>\n
witness.\n<\/p>\n
      14. PW8 is a money lender. He is doing the business of<\/p>\n
giving loan on the strength of the pledging of gold ornaments. He<\/p>\n
CRL.APPEAL No.2296 of 2006 -16-<\/span><\/p>\n
states that the gold chain in question was pledged with him on<\/p>\n
14.8.2003 and the pledged chain weighed 7 >          grams.   The<\/p>\n
accused was given a loan of Rs.2,250\/=. He proves the entry in<\/p>\n
Ext.P7 ledger. He identified the accused as the person who<\/p>\n
brought the chain for pledging. He states that the accused has<\/p>\n
come to his Concern earlier also for pledging. He states that the<\/p>\n
accused gave a gold ring for pledging earlier. He pledged the ring<\/p>\n
on 30.7.2003. The ring weighed 1.2 gram. The accused was given<\/p>\n
loan of Rs.300\/= on that occasion. He would say that the ring was<\/p>\n
redeemed on 14.8.2003. The accused came at about 11 AM for<\/p>\n
redeeming the ring. When the chain was pledged, a loan of<\/p>\n
Rs.2,250\/= was given after adjusting Rs.300\/= with interest due<\/p>\n
under the pledging of the ring. He has spoken about the paper<\/p>\n
work done by the accused for redeeming the gold ring. He has<\/p>\n
spoken about the paper work done in connection with the pledging<\/p>\n
of the gold chain and the signature of the accused person being<\/p>\n
CRL.APPEAL No.2296 of 2006 -17-<\/span><\/p>\n
appended. He identifies the MO1 chain. There was a gap in the<\/p>\n
hook of the chain and he had asked about it to the accused and that<\/p>\n
is how he identifies MO1. He also identified MO5 gold ring as the<\/p>\n
ring which was redeemed by the accused. He also says that MO5<\/p>\n
ring had been pledged two or three times earlier with him. He<\/p>\n
would say that in Ext.P10 relating to the pledging of the chain, he<\/p>\n
had begun to write as 12.8.03, but it is corrected as 14.8.03. It is<\/p>\n
only a mistake, he would say. He admits that there was over-<\/p>\n
writing. He would say that the mistakes have been corrected. He<\/p>\n
also admits that in Ext.P9 which related to the pledging of the gold<\/p>\n
ring, “00” was corrected as “07”. He denies the suggestion of<\/p>\n
difference between the signatures of the accused and asserts that<\/p>\n
the signatures are that of the accused. He denies the suggestion<\/p>\n
that the hook was straightened by him and the Police Officers. He<\/p>\n
states that the chain which was pledged had a weight of 7 ><\/p>\n
grams. He is not able to remember whether the chain which was<\/p>\n
CRL.APPEAL No.2296 of 2006 -18-<\/span><\/p>\n
given to the police had the weight of 7.900 grams. He says that he<\/p>\n
had weighed the pledged chain and in the record it was shown as 7<\/p>\n
> grams. He says that because it is a pledged chain, the quantity is<\/p>\n
shown at a reduced basis.      The police came and weighed the<\/p>\n
chain. He denies the suggestion that the mahazar was signed in<\/p>\n
the police station. He denies the suggestion that the accused has<\/p>\n
never pledged ornaments in his shop. In the Re-examination, PW8<\/p>\n
would say that in respect of the pledge of the gold chain, the date<\/p>\n
22.9.03 was written by a mistake in regard to this transaction.<\/p>\n
     15. PW9 is a goldsmith. He would say that he was asked by<\/p>\n
the Circle Inspector of Police to go and he accordingly went with<\/p>\n
the weighing balance and touchstone and the accused was also<\/p>\n
present in the police station. They went to the four cent colony.<\/p>\n
He would then say that they went to among other places, the shop<\/p>\n
where he weighed the gold chain and it weighed about 7.900<\/p>\n
grams.   It was found to be of about twenty carat gold.         He<\/p>\n
CRL.APPEAL No.2296 of 2006 -19-<\/span><\/p>\n
identified MO1 as the chain which he had weighed. He also<\/p>\n
weighed the gold ring brought from the house of one Pathmini to<\/p>\n
whose house they went as per direction given by the accused. He<\/p>\n
speaks about the weighing the gold ring and otherwise checked the<\/p>\n
ring for the gold content. There will be many chains like MO1.<\/p>\n
There was a welding in MO1 chain. He would say that in all the<\/p>\n
joints, there are welding.\n<\/p>\n
     16. PW10 is the Doctor who conducted the post mortem. He<\/p>\n
noticed the following anti-mortem injuries:\n<\/p>\n
            “Contusion of scalp over an area 8 x 7 cm. On<\/p>\n
      the right frontoparietal region (seen on dissection).<\/p>\n
      The orbital part of the frontal bone showed<\/p>\n
      comminuted fraction 5 x 4 cm with two fissured<\/p>\n
      fractures, one of them extending to the right temporal<\/p>\n
      bone and the other towards the parietal bone and<\/p>\n
      terminated in the coronal scuttles. Duramater was<\/p>\n
      torn underneath the comminuted fracture. Brain was<\/p>\n
      liquefied and stained with blood.”\n<\/p><\/blockquote>\n
CRL.APPEAL No.2296 of 2006 -20-<\/span><\/p>\n<\/blockquote>\n
Under the heading “Opinion as to cause of death” he states as<\/p>\n
follows:\n<\/p>\n
            “Death was due to head injury sustained. I have<\/p>\n
      issued this certificate which bears my signature and<\/p>\n
      seal.   Ext.P12 marked.      The post mortem interval<\/p>\n
      would    be   between    72   to    120   hours.     The<\/p>\n
      decomposition changes in the brain starts after 72<\/p>\n
      hours and it could be complete by liquified after 120<\/p>\n
      hours.    The injury could have been caused by a<\/p>\n
      weapon like MO.3. This injury is sufficient to cause<\/p>\n
      death in the ordinary course of nature.”<\/p>\n<\/blockquote>\n
In cross-examination, he would say that he did not note about how<\/p>\n
much time would be required for the injury to cause death. He<\/p>\n
states that he has noted all the injuries. It includes the centrikupe<\/p>\n
injury. He states that he has not noted any abrasions corresponding<\/p>\n
to the fractures as the body was in a decomposed stage. It is<\/p>\n
CRL.APPEAL No.2296 of 2006 -21-<\/span><\/p>\n
further stated in the Cross-Examination as follows:<\/p>\n
            “Can not the injury be caused due to a fall on<\/p>\n
      the frame of a cot or it can be caused due to a fall<\/p>\n
      from considerable height or due to application of<\/p>\n
      blunts force.”<\/p><\/blockquote>\n
      17. PW12 is the Assistant Sub Inspector of Police who<\/p>\n
registered the FIR. PW13 is the Investigating Officer. In the<\/p>\n
Cross-examination he would say, inter alia, as follows:<\/p>\n
      It was noted that there was blood on MO3 wooden stick and<\/p>\n
he further says that blood could not be detected in the Report of<\/p>\n
chemical analysis and there was no bloodstain. There was no<\/p>\n
Statement by any witness that the deceased was assaulted twice on<\/p>\n
the head. The mahazar was written on 20.8. 2003 at 11\/30 AM<\/p>\n
only. There were no remnants from the accused on the matter. He<\/p>\n
denies that the mats were made up for the purpose of the case. He<\/p>\n
denies the allegation that the hook of the chain was straightened<\/p>\n
for the purpose of the case. The fingerprint of the accused was<\/p>\n
CRL.APPEAL No.2296 of 2006 -22-<\/span><\/p>\n
taken and sent for analysis and the result obtained. In connection<\/p>\n
with this case, no fingerprint was obtained.        He denies the<\/p>\n
suggestion that the accused was getting Rs.200 to 250\/= per day<\/p>\n
from his vocation as labourer.        The accused was arrested on<\/p>\n
26.8.2003. He was not in police custody prior to that. He denies<\/p>\n
the allegation that on 20th or 21st, the accused was shown to some<\/p>\n
of th witnesses. When PW8 was questioned, he has not given<\/p>\n
statement that the weight of the pledged ornament will be shown at<\/p>\n
a lesser quantum. He denies the suggestion that the cross was<\/p>\n
obtained when the mats were shaken. He denies the suggestion<\/p>\n
that when the mat was kept for drying, on noticing a shining<\/p>\n
matter, the cross was discovered. He denies the suggestion that<\/p>\n
there was nobody other than the police and the accused in the jeep.<\/p>\n
He states that PW5 has not stated that there was a welding and the<\/p>\n
chain was identified on that basis.\n<\/p>\n
     18. In Sankara Narayanan v. State of Kerala<\/a> (2006 (3) KLT<\/p>\n
CRL.APPEAL No.2296 of 2006 -23-<\/span><\/p>\n
429), it is, inter alia, held that “unless the authorship of<\/p>\n
concealment is established, the recovery in pursuance of the<\/p>\n
information stated to have been furnished by the accused will not<\/p>\n
fall under “discovery” as envisaged under Section 27 of the Indian<\/p>\n
Evidence Act.” It is also held that “one of the primary requisites to<\/p>\n
make a recovery under Section 27 of the Evidence Act is that the<\/p>\n
authorship of concealment of articles must be proved.” In Ajayan<\/p>\n
v. State of Kerala<\/a> (2011 (1) KLT 8 (FB)), the Court held as<\/p>\n
follows:\n<\/p>\n
           “Authorship of concealment is not sine qua non<\/p>\n
      to make information received from a person accused<\/p>\n
      of an offence while in the custody of the Police Officer<\/p>\n
      admissible under S.27 of the Act and that if the<\/p>\n
      information as deposed to by the Investigating Officer<\/p>\n
      is otherwise admissible in evidence, it would not<\/p>\n
      become inadmissible solely for the reason that the<\/p>\n
      information deposed by the Police Officer does not<\/p>\n
      reveal authorship of concealment. In other words, the<\/p>\n
CRL.APPEAL No.2296 of 2006 -24-<\/span><\/p>\n
     view taken in the decisions of this Court that<\/p>\n
     authorship of concealment is sine qua non for<\/p>\n
     admissibility of the statement of the accused under<\/p>\n
     S.27 of the Act is not correct in law.”\n<\/p><\/blockquote>\n
It was thereafter held as follows:\n<\/p>\n
           “For the application of S.27, it makes no<\/p>\n
     difference whether information given is that the article<\/p>\n
     is concealed at a particular place or that it is given to<\/p>\n
     a particular person.      S. 27 does not say that for<\/p>\n
     admissibility   of   the  information,  authorship     of<\/p>\n
     concealment is essential. The expression “distinctly”<\/p>\n
     only means “directly”, “indubitably”, “strictly”,<\/p>\n
     “unmistakably”. That expression is used in S. 27 to<\/p>\n
     limit and define the scope of information admissible in<\/p>\n
     evidence.”\n<\/p><\/blockquote>\n
This is a case of recovery effected of gold ornament from a shop<\/p>\n
where it is shown as pledged by the appellant. In State of Kerala<\/p>\n
v. Hariharan<\/a> (2006 (1) KLT 173), a Division Bench of this Court<\/p>\n
referred to the Apex Court decisions where it was held as follows:<\/p>\n
CRL.APPEAL No.2296 of 2006 -25-<\/span><\/p>\n
          “In order to base a conviction on circumstantial<\/p>\n
     evidence, each and every piece of incriminating<\/p>\n
     circumstance must be clearly established by reliable<\/p>\n
     and clinching evidence and the circumstances so<\/p>\n
     proved must form such a chain of events as would<\/p>\n
     permit no conclusion other than the one of guilt of the<\/p>\n
     accused and the circumstances cannot be explained on<\/p>\n
     any hypothesis other than the guilt of the accused.<\/p>\n
     The court has to be cautious and avoid the risk of<\/p>\n
     allowing mere suspicion, howsoever strong, to take<\/p>\n
     the place of proof.    A mere moral conviction or a<\/p>\n
     suspicion howsoever grave cannot take the place of<\/p>\n
     proof.”\n<\/p><\/blockquote>\n
In Thomas v. State of Kerala<\/a> (1991 (2) KLT 274), a Division<\/p>\n
Bench of this court was dealing with a case where the accused was<\/p>\n
unarmed and he happened to see the deceased in a casual way.<\/p>\n
There was altercation and it led to fisting by the appellant with his<\/p>\n
hand. The Court took the view that his intention could have been<\/p>\n
to give some thrashes to the deceased and the case would fall only<\/p>\n
CRL.APPEAL No.2296 of 2006 -26-<\/span><\/p>\n
under Section 323 of the IPC. The Court held as follows:<\/p>\n
          “To constitute the offence under S.302 IPC, the<\/p>\n
    act should fall in one of the four clauses in S.300,<\/p>\n
    namely, (1) if the act is done with the intention of<\/p>\n
    causing death or (2) with the intention of causing such<\/p>\n
    bodily injury as the offender knows to be likely to<\/p>\n
    cause death or (3) with the intention to cause bodily<\/p>\n
    injury and the bodily injury intended is sufficient in<\/p>\n
    the ordinarh course of nature to cause death, or (4) if<\/p>\n
    the person doing the act knows that it is so imminently<\/p>\n
    dangerous that it must, in all probability, cause death<\/p>\n
    or such bodily injury as is likely to cause death. It<\/p>\n
    cannot be said that the act alleged would fall in any of<\/p>\n
    the above clauses so as to bring the offence within the<\/p>\n
    ambit of S.300 I.P.C. In order to constitute an offence<\/p>\n
    of culpable homicide, a person has to cause death by<\/p>\n
    doing an act with the intention of causing death, or<\/p>\n
    with the intention of causing such bodily injury as is<\/p>\n
    likely to cause death or with the knowledge that he is<\/p>\n
    likely by such act to cause death. Culpable homicide<\/p>\n
    is the genus of which murder is the species. S. 304<\/p>\n
CRL.APPEAL No.2296 of 2006 -27-<\/span><\/p>\n
     I.P.C. will apply to the following classes of cases: (i)<\/p>\n
     When the case falls under one or the other of the<\/p>\n
     clauses of S.300, but it is covered by one of the<\/p>\n
     exceptions to that section, (ii) when the injury caused<\/p>\n
     is not of the higher degree or likelihood which is<\/p>\n
     covered by the expression “sufficient in the ordinary<\/p>\n
     course of nature to cause death” but is of a lower<\/p>\n
     degree of likelihood which is generally spoken of as<\/p>\n
     an injury “likely to cause death” and the case does not<\/p>\n
     fall under Clause (2) of S. 300 I.P.C., (iii) when the<\/p>\n
     act is done with the knowledge that death is likely to<\/p>\n
     ensue but without intention to cause death or an<\/p>\n
     injury likely to cause death. The workd `likely’ means<\/p>\n
     probably    and    it  is  distinguished   from   mere<\/p>\n
     “possibily”. When chance of happening are even or<\/p>\n
     greater than its not happening, we may say that the<\/p>\n
     thing will “probably happen”.\n<\/p><\/blockquote>\n
But, there is no evidence or basis for any such altercation. In<\/p>\n
Muthu v. State of Tamil Nadu<\/a> (2007 (4) KLT 982 SC), the Apex<\/p>\n
Court was dealing with a case under Explanation (1) of Section<\/p>\n
CRL.APPEAL No.2296 of 2006 -28-<\/span><\/p>\n
300 of the I.P.C. and the Court proceeded to hold that the accused<\/p>\n
was deprived of his power of self-control by reason of the fact of<\/p>\n
throwing waste and rubbish into his house.\n<\/p>\n
     19. The evidence would clearly establish that the appellant<\/p>\n
was in need of money. It is established clearly by the evidence of<\/p>\n
PW6 as also PW8. PW6 has categorically stated that the accused<\/p>\n
was in need of money and used to take MO5 gold ring for<\/p>\n
pledging for borrowing money. PW8, the money lender with<\/p>\n
whom MO5 gold ring was pledged, has stated that he has pledged<\/p>\n
the gold ring on earlier occasions also to raise money.       The<\/p>\n
deceased was staying alone. She was not a healthy woman. On<\/p>\n
the contrary, she was partially deaf and not in a physically good<\/p>\n
condition. The accused was living in the nearby vicinity.<\/p>\n
     20. We also do not intend to lay any store by the alleged<\/p>\n
statement of the accused leading to MO3 recovery. But, at the<\/p>\n
same time, we do not think that the appellant has established that<\/p>\n
CRL.APPEAL No.2296 of 2006 -29-<\/span><\/p>\n
we should disbelieve the statement of the accused leading to the<\/p>\n
recovery of MO1.\n<\/p>\n
      21. As regards the discrepancy in the statement of PW1 in<\/p>\n
Ext.P1 FI Statement given on 18.8.2003 that he had last seen the<\/p>\n
deceased on 15.8.2003 and the argument of the appellant that on<\/p>\n
finding that the pledging of MO1 gold chain was made on<\/p>\n
14.8.2003, a different version is sought to be made up, we do not<\/p>\n
think that it will advance the appellant’s case. PW1 has deposed<\/p>\n
that it was only by a mistake in giving the date that it was so<\/p>\n
stated. The further argument of the appellant is that the post<\/p>\n
mortem was done on 19.8.2003 and the prosecution case is that the<\/p>\n
death took place on 13.8.2003. Evidence of PW10 would show<\/p>\n
that the post mortem interval was between 72 to 120 hours. If that<\/p>\n
is so, the prosecution case that the death took place on 13.8.2003<\/p>\n
could not be believed and it is further contended that the medical<\/p>\n
evidence would show that there will be liquefaction of the brain<\/p>\n
CRL.APPEAL No.2296 of 2006 -30-<\/span><\/p>\n
upto a maximum of 120 hours. PW10, of course, the Doctor has<\/p>\n
stated that the post mortem injury would be between 72 to 120<\/p>\n
hours. As far as liquefaction is concerned, he has stated that it<\/p>\n
could be complete after 120 hours. In the Chief Examination he<\/p>\n
has stated that the brain was liquefied. But, we do not see any<\/p>\n
inconsistency about the brain being liquefied and the statement<\/p>\n
that the liquefaction will be complete after 120 hours and the<\/p>\n
prosecution case that the death took place on 13.8.2003.<\/p>\n
     22. As far as the post mortem interval is concerned, no<\/p>\n
doubt, the opinion of the Doctor may be overshot by the<\/p>\n
prosecution case by a few hours. But, we must consider whether<\/p>\n
there are other materials which taken together would establish the<\/p>\n
prosecution case.\n<\/p>\n
     23. Then, we come to the important circumstances appearing<\/p>\n
against the appellant, i.e. the statement given by him to the Police<\/p>\n
Officer within the meaning of Section 27 of the Evidence Act,<\/p>\n
CRL.APPEAL No.2296 of 2006 -31-<\/span><\/p>\n
resulting in the recovery of MO1 gold chain. If MO1 gold chain is<\/p>\n
accepted as the chain which was worn by the deceased,<\/p>\n
undoubtedly, it will go a long way in proving the guilt of the<\/p>\n
appellant as he was no explanation for the possession of the gold<\/p>\n
chain. PW1 had spoken about the deceased wearing the gold<\/p>\n
chain and that it was missing. He also identified MO1 gold chain.<\/p>\n
He has deposed that another sister and his niece (examined as<\/p>\n
PW5) had purchased the gold chain. He has denied the suggestion<\/p>\n
that the deceased did not have a gold chain. He has also given<\/p>\n
evidence that it was he who got the broken gold chain of the<\/p>\n
deceased welded. PW3 who is the neighbour of the deceased has<\/p>\n
also stated that she has seen the deceased wearing a gold chain.<\/p>\n
Of course, she had stated that she saw the deceased from a<\/p>\n
distance and she did not notice whether the gold chain was there<\/p>\n
on the body of the deceased. No doubt, her deposition is to the<\/p>\n
effect that when she was shown MO1 gold chain, the deceased<\/p>\n
CRL.APPEAL No.2296 of 2006 -32-<\/span><\/p>\n
used to wear the gold chain like MO1 (learned counsel places<\/p>\n
much reliance on this version). She has, of course, also stated that<\/p>\n
the deceased had shown the gold chain to her two to three months<\/p>\n
prior to her death. It was stated to be around the time when it was<\/p>\n
purchased. PW1 would say that the gold chain was purchased<\/p>\n
about a year prior to the death. PW5 is the niece. She had<\/p>\n
identified MO1 gold chain as the chain which was worn by the<\/p>\n
deceased. She has further deposed that she had accompanied the<\/p>\n
deceased with another Aunt to purchase MO1 gold chain. She has<\/p>\n
stated that the deceased used to wear gold chain and ear ring<\/p>\n
regularly. The chain was purchased about a year prior to the<\/p>\n
death. She has also stated that a locket was also purchased. The<\/p>\n
chain was of “dhruvam” model and she was able to identify the<\/p>\n
ornaments including the cross. The chain was welded which was<\/p>\n
done by the Uncle. She has stated that the breaking of the gold<\/p>\n
chain and the welding was informed to her by the deceased<\/p>\n
CRL.APPEAL No.2296 of 2006 -33-<\/span><\/p>\n
herself. The deceased liked the gold chain having “dhruvam”<\/p>\n
fashion. In Re-examination, she has stated that at the time of<\/p>\n
purchase of the gold chain and cross, she has taken them and<\/p>\n
examined them. Therefore, the contention of the learned counsel<\/p>\n
for the appellant that the chain was not held in her hands by PW5<\/p>\n
and hence her evidence does not inspire confidence, cannot be<\/p>\n
accepted.\n<\/p>\n
     24. In the state of the evidence, we are inclined to accept the<\/p>\n
prosecution version that the deceased did wear the gold chain and<\/p>\n
the gold chain was M.O.1 identified by PW5, in particular and<\/p>\n
about which PW1 as also PW7 (brother-in-law of deceased) has<\/p>\n
also spoken about. It may be true that PW9, the gold smith, has<\/p>\n
stated that there are weldings seen. We notice in this regard the<\/p>\n
following reasoning of the learned Sessions Judge:<\/p>\n
            “He is not asked whether the chain was broken<\/p>\n
      and then welded at any point. The learned counsel for<\/p>\n
      the defence says that since PW9 has testified that the<\/p>\n
CRL.APPEAL No.2296 of 2006 -34-<\/span><\/p>\n
      entire chain is full of welding on each joint, the<\/p>\n
      welding purportedly identified by PW1 and PW5 has<\/p>\n
      no importance at all. The welding of a chain during<\/p>\n
      the process of its manufacture and a subsequent<\/p>\n
      welding of it consequent to the chain breaking has<\/p>\n
      some difference and PW1 and PW5 have identified that<\/p>\n
      particular portion of the chain. Moreover, PW5 is the<\/p>\n
      person who had gone to purchase the chain for her<\/p>\n
      Aunt.”\n<\/p><\/blockquote>\n
But, in view of the evidence of PW5, who has accompanied the<\/p>\n
deceased along with another Aunt of hers to purchase the gold<\/p>\n
chain and her natural familiarity which she professes, the gold<\/p>\n
chain being worn by her Aunt, the deceased, we do not think that<\/p>\n
the appellant can contend that MO1 chain was not the chain which<\/p>\n
was worn by the deceased.\n<\/p>\n
      25. PW8 is a money lender. His evidence would establish<\/p>\n
that the appellant had pawned MO5 gold ring belonging to PW6,<\/p>\n
not once, but on a number of times. This version of PW8 is<\/p>\n
CRL.APPEAL No.2296 of 2006 -35-<\/span><\/p>\n
corroborated by the evidence of PW6 herself to whom MO5 gold<\/p>\n
ring belonged. The evidence would establish also that the gold<\/p>\n
ring was pledged by the appellant on earlier occasions, prior in<\/p>\n
point of time, to 14.8.2003.       It was on 14.8.2003 that the<\/p>\n
prosecution alleges that the appellant pledged MO1 gold chain<\/p>\n
with PW8. Therefore, PW8 was familiar with the appellant as on<\/p>\n
14.8.2003, as he had transacted business with him on a few<\/p>\n
occasions earlier to 14.8.2003.      This lends assurance to the<\/p>\n
identification of the appellant by PW8 as the person who pledged<\/p>\n
MO1 gold chain. The prosecution has also produced the Ledgers.<\/p>\n
We see no reason why PW8 would falsely implicate the appellant.<\/p>\n
As to the discrepancy in the weight of MO1 being recorded as<\/p>\n
7.750 grams when it was weighed by PW9 gold smith at 7.900<\/p>\n
grams and the argument that, therefore, the chain is different, we<\/p>\n
are not inclined to accept the argument. There is a version given<\/p>\n
by PW8 also that the weight will be shown at a lesser quantum.<\/p>\n
CRL.APPEAL No.2296 of 2006 -36-<\/span><\/p>\n
The difference is .150 grams.       We have also found that the<\/p>\n
evidence of PW5, in particular would establish that MO1 gold<\/p>\n
chain is the gold chain worn by the deceased. No doubt, as far as<\/p>\n
MO5 ring is concerned, the weight was shown as 2.16 grams as<\/p>\n
shown in the records.\n<\/p>\n
     26. As far as the cross is concerned, PW5 has spoken about<\/p>\n
the purchase of the cross along with MO1 chain. The recovery of<\/p>\n
the cross is spoken to by the Police Officer from under the mats.<\/p>\n
The appellant was not a Christian. If he took the gold chain with<\/p>\n
the cross, we cannot discount the possibility that he may have<\/p>\n
aroused the suspicion of PW8. Further, we cannot overlook the<\/p>\n
argument of the learned Public Prosecutor that the cross may have<\/p>\n
been separated from the chain and it may have been kept by the<\/p>\n
deceased herself under the mat. The fact that the ear rings were<\/p>\n
found intact on the body of the deceased cannot shake us in our<\/p>\n
belief about the guilt of the appellant. It is quite possible that the<\/p>\n
CRL.APPEAL No.2296 of 2006 -37-<\/span><\/p>\n
appellant did not want to get caught by delaying his exit from the<\/p>\n
house after having come by MO1 chain. He got Rs.2,250\/= as<\/p>\n
loan on the strength of the pledge of MO1 chain.              He has<\/p>\n
redeemed MO5 gold ring.\n<\/p>\n
      27.   We are also unable to accept the contention of the<\/p>\n
learned counsel for the appellant that it is incredible to suggest that<\/p>\n
the appellant who was deriving his livelihood as a coconut<\/p>\n
climber, could not have raised Rs.300\/= for redeeming the gold<\/p>\n
ring. Apparently, he had to take a loan of Rs.300\/=. This fact<\/p>\n
sufficiently shows the state of his financial condition. Therefore,<\/p>\n
we are of the view that the court below was justified in finding<\/p>\n
that it was the appellant who caused the death of the deceased.<\/p>\n
      28. Learned counsel for the appellant would contend that<\/p>\n
there may have been a scuffle and the deceased may have fallen to<\/p>\n
the bed and suffered injury leading to the death and purports to<\/p>\n
draw support from the medical evidence. We are unable to accept<\/p>\n
CRL.APPEAL No.2296 of 2006 -38-<\/span><\/p>\n
the said contention. This hypothesis does not appear to have any<\/p>\n
basis at all with reference to the materials on record.<\/p>\n
     29. Then, without prejudice to his contentions the appellant<\/p>\n
has contended that there was only one injury and this case does<\/p>\n
not call for invoking Section 302 IPC. In this regard, we notice<\/p>\n
that PW10 Surgeon has stated that the injury in the ordinary<\/p>\n
course was sufficient to cause death. Death followed soon after<\/p>\n
the injury. In such circumstances, we are not inclined to vary the<\/p>\n
conviction and sentence under Section 302 IPC.<\/p>\n
     30. Section 449 of the IPC reads as follows:\n<\/p>\n
     “449.      House-trespass in order to commit offence<\/p>\n
punishable with death.-\n<\/p>\n
             “Whoever commits house-trespass in order to the<\/p>\n
      committing of any offence punishable with death, shall<\/p>\n
      be punished with imprisonment for life, or with<\/p>\n
      rigorous imprisonment for a term not exceeding ten<\/p>\n
      years, and shall also be liable to fine.”<\/p>\n
CRL.APPEAL No.2296 of 2006 -39-<\/span><\/p>\n<\/blockquote>\n
Therefore, the house trespass must be committed for the purpose of<\/p>\n
the committing of any offence punishable with death (See the decision<\/p>\n
in Matiullah Sheikh and Others v. State of West Bengal (AIR<\/a> 1965 SC<\/p>\n
132). In this case, we are not convinced that there is evidence to<\/p>\n
show that he committed house trespass for the purpose of committing<\/p>\n
any offence punishable with death. On the basis of the evidence on<\/p>\n
record, we would, however, think that he has instead committed<\/p>\n
offence punishable under Section 451. Section 451 reads as follows:<\/p>\n
            “451.    House-trespass in order to commit<\/p>\n
      offence punishable with imprisonment.-          Whoever<\/p>\n
      commits house-trespass in order to the committing of any<\/p>\n
      offence punishable with imprisonment, shall be punished<\/p>\n
      with imprisonment of either description for a term which<\/p>\n
      may extend to two years, and shall also be liable to fine;<\/p>\n
      and if the offence intended to be committed is theft, the<\/p>\n
      term of the imprisonment may be extended to seven<\/p>\n
      years.”<\/p><\/blockquote>\n
     31. In such circumstances, we vacate the conviction and<\/p>\n
sentence of the appellant under Section 449 of the IPC. Instead, we<\/p>\n
convict him under Section 451 of the IPC and in the circumstances of<\/p>\n
the case, we sentence him to simple imprisonment for two years. We<\/p>\n
CRL.APPEAL No.2296 of 2006 -40-<\/span><\/p>\n
confirm the conviction under Section 382 IPC, as we find that the<\/p>\n
Additional Sessions Judge was fully justified in the said conviction. We<\/p>\n
confirm the sentence imposed on him under Section 382 of the IPC.<\/p>\n
We direct that the substantial sentence under Section 451 IPC will also<\/p>\n
run concurrently.\n<\/p>\n
      Subject to the above modification, the Appeal will stand<\/p>\n
dismissed and the conviction of the appellant as also the sentence<\/p>\n
under Sections 302 and 382 IPC will stand confirmed.<\/p>\n
                                                        Sd\/=
\n                                                   (K.M.JOSEPH)
\n                                                       JUDGE.\n<\/p>\n
\n                                                        Sd\/=
\n                                             (M.L.JOSEPH FRANCIS)
\n                                                      JUDGE.\n<\/p>\n
MS\/kbk.\n<\/p>\n
                       \/\/True Copy\/\/<\/p>\n
                                                      PS to Judge<\/p>\n
CRL.APPEAL No.2296 of 2006 -41-<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Ajith Kumar @ Aji vs State Represented By The on 21 January, 2011 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 2296 of 2006() 1. AJITH KUMAR @ AJI, … Petitioner Vs 1. STATE REPRESENTED BY THE … Respondent For Petitioner :SMT.AYSHA YOUSEFF For Respondent : No Appearance The Hon’ble MR. 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