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Kerala High Court · body

2011 DIGILAW 1083 (KER)

Gilbert, Trivandrum v. State of Kerala

2011-10-31

N.K.BALAKRISHNAN, PIUS C.KURIAKOSE

body2011
Judgment : BALAKRISHNAN, J. 1. The appellant was convicted by First Additional Sessions Judge, Trivandrum for offences punishable under Sections 302, 376(2)(f) and 397 I.P.C. and was sentenced to imprisonment for life for the offence under Section 302, rigorous imprisonment for 10 years for the offence under Section 376(2)(f) and rigorous imprisonment for 7 years for the offence punishable under Section 397 IPC. This appeal is directed against the said conviction and sentence passed against him. 2. A seven year old (to be precise 7 years, 7 months and 7 days old) daughter of P.W.1 was brutally raped and murdered at about 3 PM on 25.12.2004 at a place near Karichal Kayal in Karumkulam village. The gist of the prosecution case is stated thus: The victim girl had been to the house of her grand mother (P.W.3) from where she went to Karichal Kayal (back water) for washing the kaily mundu of P.W.3 carried in an aluminum vessel. Since the girl did not return, P.W.3 went to the house of P.W.1 to enquire whether the victim had come back. Since the victim girl was not seen, P.Ws.1 and 3 went in search of the girl. They searched near the Kayal, the sea shore and nearby places. The neighbours and local people also made search of the girl. Though they searched till late at night, their search was in vain. On the next day morning, P.W.4, the grand father of the victim girl and one Anjalos (P.W.9) werein search of the girl. P.W.9 then found the dead body of the victim girl near the ‘pozi’. There were no clothes on the dead body of the deceased girl. P.W.4 took the dead body to the house of P.W.1. While cleaning the dead body of the victim girl blood was seen oozing out from her vagina. Nail marks and bite marks were found on her chest/breast. P.W.37, the S.I. of Police, Kanjiramkulam on getting information reached the place of incident. He recorded Ext.P1 First Information Statement of P.W.1. He went back to the police station, registered the FIR and returned to the place of incident. P.W.38, the Circle Inspector of Police was also informed. The inquest on the dead body was conducted by P.W.37 in the presence of P.W.38 and prepared Ext.P5 inquest report. He recorded Ext.P1 First Information Statement of P.W.1. He went back to the police station, registered the FIR and returned to the place of incident. P.W.38, the Circle Inspector of Police was also informed. The inquest on the dead body was conducted by P.W.37 in the presence of P.W.38 and prepared Ext.P5 inquest report. By that time, some persons who were in search of the dress worn by the girl found out M.O.3 thorthu, M.O.4 blouse piece and M.O.10 brandy bottle which still contained a little brandy in it. Those material objects were brought to the place where the inquest was being conducted. Those properties were also seized as per the inquest report. During inquest, it was noticed that silver anklets which were worn by the deceased were missing. The other articles found on the dead body of the deceased were also seized as per Ext.P3. Thereafter, the dead body was taken to the Medical College Hospital, Thiruvananthapuram for postmortem examination. 3. The accused was arrested on 7.2.2005 at night by Kanjiramkulam police in connection with another crime, crime No.26 of 2005 of the police station which was registered under Sections 457 and 380 IPC. During interrogation of the accused in connection with that case, the photos of the deceased girl having injuries on her body as mentioned above were shown to him, the accused became perplexed. On seeing the unusual conduct and excitement of the accused, he was shifted to the next room for observation. The accused then took up a blade which was seen kept on the window rill and started cutting his nails. He was again questioned. P.W.38 could then discern that it was the accused who committed rape and murder. The silver anklet which was robbed of from the body of the victim was seized from the shop of P.W.11 based on the disclosure statement given by the accused. Other relevant materials were also collected by P.W.38 during investigation. After completing investigation, charge sheet was laid against the accused for the offences mentioned above. The accused pleaded not guilty. P.Ws.1 to 38 were examined and Exts.P1 to P39 were marked. Material Objects 1 to 22 were also marked. 4. When the accused was examined under Section 313 Cr.P.C., he reiterated his plea of innocence. After completing investigation, charge sheet was laid against the accused for the offences mentioned above. The accused pleaded not guilty. P.Ws.1 to 38 were examined and Exts.P1 to P39 were marked. Material Objects 1 to 22 were also marked. 4. When the accused was examined under Section 313 Cr.P.C., he reiterated his plea of innocence. But it was admitted by him that he had entrusted his watch for repair to P.W.14 as there was leakage of water into the watch. It was stated by him that the leakage happened to be there since he had been to the sea for fishing. Exts.D1 and D2 were marked as contradictions in the evidence given by the prosecution witnesses. No evidence was adduced on the side of the defence. 5. The learned Sessions Judge after analyzing the evidence found that the prosecution could prove all the links in the chain of circumstances to hold that it was the accused who committed rape and murder of the deceased girl and robbed M.O.7 anklets which were then worn by the deceased. Thus, the appellant was convicted and sentenced as mentioned above. 6. We have heard in detail the arguments addressed by Mr. Sujit Mathew Jose, the learned counsel for the appellant (as State Brief) and the learned Public Prosecutor Mr. S.U. Nazar. 7. The following points arise for consideration: 1) Was the victim girl raped at the time and place as alleged by the prosecution? 2) The cause of death of the victim girl? 3) Whether the prosecution could prove all the circumstances relied upon by it to prove that it was the accused who committed rape, murder and robbery as alleged by the prosecution? 4) Whether the conviction and sentence passed against the appellant are unsustainable on any of the grounds raised by the appellant? Point No.1: 8. P.W.26 is the doctor who conducted the postmortem examination on the body of Maria, the victim in this case. Ext.P13 is the postmortem certificate. The following antemortem injuries were found on the body of the victim: 1. Contusion 3.5 x 2.5 x 0.3 cm on the right side of back of head 5 cm outer to mid line and 2.5 cm above the level of occiput. 2. Linear abrasion 0.4 cm long on the right cheek. 3. Ext.P13 is the postmortem certificate. The following antemortem injuries were found on the body of the victim: 1. Contusion 3.5 x 2.5 x 0.3 cm on the right side of back of head 5 cm outer to mid line and 2.5 cm above the level of occiput. 2. Linear abrasion 0.4 cm long on the right cheek. 3. Linear abrasion 0.5 cm long horizontal on the right side of face 1.6 cm below the middle of lower eye lid margin. 4. Contusion 0.5 x 0.5 x 0.3 cm on the inner aspect of lower lip 1.3 to the left of midline and 1.5 cm below the lip margin. 5. Contusion 0.4 x 0.3 x 0.2 cm, on the right side of neck 4 cm outer to midline and 5.5 cm below the jaw bone. Flap dissection of neck was done under bloodless field. Subcutaneous tissue underneath the contusion showed infiltration of blood 0.6 x. 0.5 x 0.1 cm. Other neck structures including muscles, bones, cartilages and vessels were found to be normal and intact. 6. Abrasion 0.5 x 0.3 cm, on the right side of front of chest 7.5 cm outer to midline and 1.3 cm below the collarbone. 7. Abrasion 0.5 x 0.2 cm, on the right side of front of chest 9.5 cm outer to midline and 4.6 cm below the collarbone. 8. Linear abrasion 0.5 x 0.1 cm, on the right shoulder tip. 9. Seven linear abrasions varying in sizes from 0.2 x 0.1 cm to 0.6 x 0.2 cm, with varying dispositions over and area 4.5 x 3.5 cm on the right side of front chest 8.5 cm outer to midline and 7.5 cm below the collarbone. 10. Four abrasions varying in sizes from 0.1 x 0.1 cm to 0.4 x 0.1 cm on the right side of front of chest along the upper right border of an area of pallor 2.3 x 2 cm from 10 to 11 O’clock positions, on the right nipple and surrounding areola. 11. Laceration 1.8 x 1 x 0.3 cm involving the fourchette and adjacent part of back wall of vagina in the middle. Hymen was seen irregularly lacerated with few remnants remaining on the front aspect of vaginal orifices, which admitted two fingers loosely. 9. Injury No.11 noted above did indubitably indicate that the girl was brutally raped. 11. Laceration 1.8 x 1 x 0.3 cm involving the fourchette and adjacent part of back wall of vagina in the middle. Hymen was seen irregularly lacerated with few remnants remaining on the front aspect of vaginal orifices, which admitted two fingers loosely. 9. Injury No.11 noted above did indubitably indicate that the girl was brutally raped. It may be remembered that the victim was only 7 years and 7 months at the relevant time. It was testified by P.W.26 that injury Nos.2 and 3 could be the nail marks. It was also stated by her that injury No.10 could be caused by biting. Vaginal swab and anal swab were taken. It was stated that the semen emitted could reach the anus and so there was possibility of the anal swab to contain semen. It was stated that there was no anal penetration. P.W.24 is the Assistant Chemical Examiner, FSL, Trivandrum. The vaginal swab, vaginal smear, anal swab etc. were subjected to chemical examination. Ext.P11, the certificate issued for that purpose was proved by P.W.24. Human semen and spermatozoa were detected in the vaginal swab, vaginal smear and anal swab. Though swab was taken from the right breast, saliva was not detected in the swab evidently because the dead body was lying in water before the dead body was taken out from the side of the Kayal. There is also the unimpeachable evidence given by P.Ws.1, 2, 6, 7, 10 and P.W.15 that blood was seen oozing out from the vagina of the victim and that there were nail marks on her chest. These aspects would strengthen the case of the prosecution that the girl was raped immediately prior to her death. It was so noted by P.W.37 in Ext.P3 inquest report also. In the light of the overwhelming evidence given by P.W.26 and P.W.24 and injury No.11 and other injuries mentioned above and the evidence of P.Ws.1, 2 and others, the prosecution could prove to the hilt that the victim girl was brutally raped immediately prior to her death. Point No.2: 10. The antemortem injuries found on the body of the deceased have already been mentioned earlier. It was stated by P.W.26 that the death of victim Maria was due to drowning. Viscera and blood were preserved for chemical examination. It was certified in Ext.P10 that no poison was detected in the intestine, liver, kidney and blood. 11. Point No.2: 10. The antemortem injuries found on the body of the deceased have already been mentioned earlier. It was stated by P.W.26 that the death of victim Maria was due to drowning. Viscera and blood were preserved for chemical examination. It was certified in Ext.P10 that no poison was detected in the intestine, liver, kidney and blood. 11. It was stated by P.W.26 that injury No.1 noted in Ext.P13 could be caused by applying blunt force on the head. It was testified by him that injury Nos.1 to 5 are sufficient to make the victim unconscious. Injury No.5 seen on the right side of neck could be caused by applying pressure on the neck. The prosecution would contend that in the course of committing rape, the accused must have used force on the neck and other parts of the body causing the victim to become unconscious. Since P.W.26 has testified that the death was due to drowning, it was all the more possible that the body of victim was taken to the Kayal (back water) and was sunk in the water. It must have been either because the assailant thought that the victim was already dead or it might be to avoid the victim given evidence pertaining to rate and other offending acts. It was testified by P.W.26 that injury Nos.1 to 5 were sufficient to make the victim unconscious. The death of the girl was due to drowning. The dead body was found in a naked condition with injuries on her body, particularly the bleeding injury (injury No.11) noted above. Hence, there can be no hesitation to hold that after committing rape, when the victim became unconscious, she was taken in the very same naked condition and was sunk in the Kayal water causing the victim to die due to drowning. Therefore, it is proved to be a case of homicide. Point No.3: 12. Now the crucial question is whether the prosecution could prove that it was the accused who committed rape and caused death of the victim girl. The prosecution relies upon circumstantial evidence. The evidence given by P.Ws.1, 3, 8 and other witnesses would show that the victim had been to the Kayal for washing M.O.2 kaili mundu of P.W.3. The victim had taken M.O.2 kaili mundu in M.O.1 aluminum vessel. The prosecution relies upon circumstantial evidence. The evidence given by P.Ws.1, 3, 8 and other witnesses would show that the victim had been to the Kayal for washing M.O.2 kaili mundu of P.W.3. The victim had taken M.O.2 kaili mundu in M.O.1 aluminum vessel. Their evidence would also show that the victim was then wearing a thorthu mundu and red blouse. The aforesaid thorthu mundu and blouse were identified as M.O.3 and M.O.4 respectively. It was also testified by P.Ws.1, 3 and others that the deceased was wearing silver anklets. M.O.7 series are those silver anklets. The deceased was then wearing gold coloured imitation studs. But that was not taken away by the assailant. It was still on the dead body of the victim. It was seized by the police as per Ext.P3 inquest report. The evidence would show that the victim girl had taken M.O.2 kaili mundu in M.O.1 vessel for washing, at about 2 PM. P.W.3, the grand mother of the victim has sworn that since the girl did not come back after washing the cloth, she went to the Kayal. The girl was not seen there. But the aluminum vessel and M.O.2 cloth (Kaili mundu) were seen at that place (the place from where cloths used to be usually washed). Since the girl was not seen, P.W.3 went to the house of P.W.1 and enquired whether the girl had come back. Since P.W.1 replied in the negative, they went in search of the girl. They went to the sea shore situated near to their houses and the nearby areas. P.Ws.2, 5 and other witnesses also stated that they had also gone in search of the girl, but the search was in vain. 13. P.W.4 is the husband of P.W.3, and grand father of the victim. He was in search of the girl on the next day (26.12.2004) morning also. While they were searching, P.W.9 found the dead body of Maria from the shore of the Kayal (side of pozi). There were no cloths on her body. He took the dead body and handed over the same to P.W.4. P.W.9 is the son of P.W.3’s sister. P.W.4 took the dead body of the girl to the house of P.W.1 and laid it on a cot. 14. There were no cloths on her body. He took the dead body and handed over the same to P.W.4. P.W.9 is the son of P.W.3’s sister. P.W.4 took the dead body of the girl to the house of P.W.1 and laid it on a cot. 14. The evidence is to the effect that at first P.W.1 and others had no suspicion about the death and so they wanted to take the dead body for burial and for that purpose they started washing the dead body and it was at that time the injuries especially the bleeding injury mentioned earlier could be found on the body of the victim. Immediately, the police was informed. P.W.37, the Sub Inspector of Police reached the house of P.W.1. He recorded Ext.P1 F.I. Statement of P.W.1. He went back to the police station, registered Ext.P1(a) FIR and returned to the house of P.W.1. P.W.38, the Circle Inspector of Police was also informed. Thereafter, the inquest was conducted by P.W.37 in the presence of P.W.38. In Ext.P3 inquest report, the injuries which were found on the body of the victim were noted. There is no evidence to show that before Ext.P1 was recorded any other statement was recorded by the police. It was only on the basis of some information the police reached there. 15. The evidence given by P.W.26, the doctor who conducted postmortem examination is to the effect that the death of the deceased must have taken place between 18:00 hours to 24:00 hours prior to the postmortem examination. The postmortem was started at 2.45 PM on 26.12.2004 and ended at 3.45 PM. Therefore, it can be found with certainty that the death of the victim girl must have taken place in between 2.45 PM to 8.45 PM on 25.12.2004. Since the evidence is to the effect that the girl had gone to Kayal for washing M.O.2 cloth after about 2.30 PM, the opinion expressed by P.W.26 as to the time of death of victim girl also supports the case of the prosecution. 16. It was stated by P.W.1 that when she and her mother (P.W.3) were going in search of Maria after, P.W.3 came and told that the girl did not return after she had gone for washing, she (P.W.1) saw the accused proceeding towards Chembakaramanthura wearing only a shuddy and banian. 16. It was stated by P.W.1 that when she and her mother (P.W.3) were going in search of Maria after, P.W.3 came and told that the girl did not return after she had gone for washing, she (P.W.1) saw the accused proceeding towards Chembakaramanthura wearing only a shuddy and banian. She has stated that the aforesaid person, after walking ahead for a while, turned back and gazed at P.W.1. It was stated by P.W.2, another neighbour that at about 2 PM on that day when she had been to the sea shore (the sandy area where they used to dry fish) she had seen one person lying on the sandy area. She says that though she went near to that person, she could not identify him as he was actually covering his face. She has stated that, that person was wearing a banian and a lunki. According to her, the banian was of sandalwood colour and she identified it as M.O.9. Since she could not see the face of that person, it can be said that there was no possibility for P.W.2 to identify that person. The prosecution wanted to prove through P.W.2 that the accused was wearing the banian of sandalwood colour. It was stated by P.W.2 that after she returned to her house, she went to the sandy area at about 5 PM, but at that time the aforesaid person was not seen there. 17. It is submitted by Mr. Sujit Mathew Jose, learned counsel for the accused that it is quite unlikely that P.W.1 could have identified the person who was going to Chembakaramanthura at about 3 PM on 25.12.2004. According to the learned counsel, in all probability, the accused must have been shown to P.W.1 before the identification parade was conducted by the Judicial First Class Magistrate, Neyyattinkara (P.W.30). In this connection the learned counsel for the accused submits that P.W.1 had not stated in Ext.P1 that she had seen the accused walking by her side and proceeding to Chembakaramanthura. The purpose of lodging the first information statement is only to set the law in motion. P.W.1 is a rustic villager. In this connection the learned counsel for the accused submits that P.W.1 had not stated in Ext.P1 that she had seen the accused walking by her side and proceeding to Chembakaramanthura. The purpose of lodging the first information statement is only to set the law in motion. P.W.1 is a rustic villager. The court cannot expect such a witness to give a detailed narration of all the events that took place on that day nor can the police officer be expected to record the F.I. Statement putting all such questions to the first informant and to obtain answers to be recorded in the first information statement. So far as a rustic villager is concerned, the aforesaid factum of witnessing a person going to a place as mentioned above may not assume any relevance at all. Therefore, the non-mention of that fact in Ext.P1 cannot in any way go against the case of the prosecution. On the other hand, the prosecution would be perfectly justified in its contention that it was because P.W.1 wanted to say only the unvarnished truth and P.W.37 also did not think of anything adding in it, those particulars about the accused were not mentioned in Ext.P1. 18. It is argued with vehemence that the identification parade was conducted by the Magistrate only on 23.2.2005. According to the prosecution, the accused was arrested on 7.2.2005 in connection with crime No.26 of 2005 of Kanjiramkulam police station and that during interrogation of the accused in connection with that case, the accused divulged certain factors which persuaded the police officer to put questions with regard to the commission of this case. The challenge against the identification done by P.W.1 in the identification parade conducted by P.W.30 does not appear to be plausible. In fact the defence also had no case that the procedure followed by the learned Magistrate (P.W.30) is incorrect. But the argument addressed by the learned counsel for the accused is to the effect that the photograph of the accused was taken by the police and those photographs might have been shown to P.W.11 and as such the factum of identification of the accused proved through P.W.11 has to be brushed aside. But the argument addressed by the learned counsel for the accused is to the effect that the photograph of the accused was taken by the police and those photographs might have been shown to P.W.11 and as such the factum of identification of the accused proved through P.W.11 has to be brushed aside. There was no case for the defence when P.W.1 was in the witness box that the accused or his photographs were shown to P.W.1 before she was taken to the court for identification of the accused. There was also no case for the accused that prior to his production before the learned Magistrate for the identification parade, he was shown to P.W.1. The prosecution could prove that the accused was seen very near to the scene immediately after the commission of the offence. He is not a person of that locality. Therefore, the accused is expected to offer an explanation as to his presence at the time and place mentioned above. But he has not chosen to explain but only to deny. That is also a link in the chain of circumstances the prosecution could rely upon. 19. The other circumstance relied upon by the prosecution is the recovery of M.O.11 watch. It was stated by P.W.38, the investigating officer that when the accused was questioned, he gave the information to the effect that the watch which was worn by him at the relevant time was given for repair in a shop-Madona Times-since water had leaked or seeped into the watch. Based on that statement and as disclosed by the accused P.W.38 went to that shop. P.W.14 was doing watch repair work in that shop. He has identified the accused as the person who deposed that after the X’mas day of 2004, the accused had been to that shop for repair of the watch. It was stated by him that on the watch given for repair a sticker would be affixed showing the name of the person and the date when it was given for repair. His evidence would show that three of four months thereafter police went to that shop along with the accused. He further says that he had told the police officer that the accused had entrusted that watch for repair. The watch was thereafter produced by him which was seized by P.W.38 as per Ext.24 mahazar. He identified the watch as M.O.11. 20. He further says that he had told the police officer that the accused had entrusted that watch for repair. The watch was thereafter produced by him which was seized by P.W.38 as per Ext.24 mahazar. He identified the watch as M.O.11. 20. The learned counsel for the accused would submit that this is another attempt made by P.W.38 to connect the accused but this will not in any way improve the case. It is contended that there was no reason for P.W.14 to keep the watch for about three or four months without effecting repair. But P.W.14 says that some amount was due from the accused towards repair charges which had been done earlier and so it was kept by him as such, without effecting repair, as he thought that the repair can be done only after getting the amount already due. It was stated by P.W.14 that when the watch was entrusted to him, there was water having been leaked into the watch. Ext.P24(a) is the relevant portion of the statement given by the accused which led to the discovery of the fact, namely, the entrustment of the watch for repair in the shop of P.W.14. It was confirmed by the subsequent recovery of M.O.11. The learned Public Prosecutor would submit that though P.W.14 was also cross examined in extensor, his evidence remains unshattered. The court below had the opportunity to analyse the evidence given by P.W.14. That court, on a scrutiny of his evidence was persuaded to accept the same as true. We have scanned the evidence given by P.W.14 and P.W.38. We find no reason to disbelieve the evidence given by P.Ws.14 and 38 on that aspect. The learned Public Prosecutor would submit that the relevancy of the seizure of the watch assumes importance since according to the prosecution, when the accused sunk the body of the victim girl in the Kayal water, the accused had to dip his hands in the water. The watch then worn by the accused thus happened to get the water leaked in. When the accused was questioned under Section 313 Cr.P.C. it was admitted by him that there was leakage of water as he happened to wear it when he had gone for fishing and so it was given for repair in that shop. That explanation is not convincing. When the accused was questioned under Section 313 Cr.P.C. it was admitted by him that there was leakage of water as he happened to wear it when he had gone for fishing and so it was given for repair in that shop. That explanation is not convincing. It is difficult to believe that a person when goes for fishing would wear the watch only to get it immersed in water. On a careful analysis of the evidence, we find that the aforesaid evidence also can be used as another link to complete the chain of circumstances. 21. Another important circumstance which the prosecution wanted to rely upon is the seizure of silver anklets. M.O.7 series were identified by P.W.1 and other witnesses as the anklets worn by the deceased. The evidence is to the effect that M.O.7 was purchased on instalment basis. P.W.1 has testified that the purchase was made in the name of her son Manoj for which the instalment card was issued in his name. The instalment card was seized by the police and marked as M.O.8. The learned counsel for the accused would submit that it is difficult to hold that M.O.8 has anything to do with M.O.7 anklets. The purpose of issuing card is only to note the number of instalment facility made available to the purchaser. It is not necessary to delve deeper into those aspects since the evidence given by P.W.1 and other witnesses regarding the identification of M.O.7 radiates confidence in the mind of the court. The question for consideration is whether the evidence given by P.W.38 and P.W.1, the jeweler with regard to the recovery of the same inspires confidence. It was sworn by P.W.38 that when the accused was questioned, it was stated by him “those anklets were sold by me to a jeweller and that if I am taken to that jeweller, I will show the shop and jeweller to whom it was sold”. It was deposed by P.W.11 who is conducting Abhilash Jewellery Works that the accused had sold a pair of silver anklets on a day towards the last of December, 2004, which was purchased by him for Rs.150/-. He has further stated that thereafter the accused had gone to that shop for repairing a broken gold chain which was returned to him after effecting repair. He has further stated that thereafter the accused had gone to that shop for repairing a broken gold chain which was returned to him after effecting repair. He has identified the accused as the person who sold the silver anklets. The silver anklets had special identifying features. It was identified as M.O.7. Ext.P30 is the mahazar as per which the anklets were seized by the police. 22. The learned counsel for the accused would submit that P.W.11 is the person who is admittedly having no licence to run a jewellery. P.W.11 has stated that there is not that much business so as to pay sales tax. The evidence would show that he is only making repair works and some times he used to purchase gold from the jewelers for making gold ornaments. The defence counsel would submit that no receipt or bill was issued with the regard to the purchase of silver anklets and no entry was made in his books or registers and as such the evidence given by P.W.11 cannot be accepted. The learned counsel further submits that according to P.W.11, the police went to that shop along with the accused about one month after the X’mas whereas the accused was arrested only on 7.2.2005 and was taken to that shop on 8.2.2005. On a careful scrutiny of the evidence given by P.W.11, we find no reason to disbelieve him. We hold that the learned Sessions Judge has rightly placed reliance on the evidence given by P.W.11. Ext.P30(a) is the relevant portion of the disclosure statement admissible under Section 27 of the Evidence Act which was deposed to by P.W.38, as a consequence of which the fact that the anklets were sold in the shop of P.W.11 was discovered and the anklets were recovered as per Ext.P30. 23. Ext.P4 is the scene mahazar prepared by PW38 on 26.12.2004 at 3 p.m. The place of occurrence is shown as the shore of Karichal Kayal (back water) situated about 200 mtrs. to the south of Kochupally Gothmabu road. Ext.P12 is the plan prepared by the Village Officer based on the materials furnished in Ext.P4 scene mahazar. Bathing place where washing stones were also seen was separately shown in Ext.P4 and it has been marked in Ext.P12 also. Arabian sea is lying 150 mtrs. away to the south of washing place. Washing stones are shown as item number 5 in Ext.P12. Bathing place where washing stones were also seen was separately shown in Ext.P4 and it has been marked in Ext.P12 also. Arabian sea is lying 150 mtrs. away to the south of washing place. Washing stones are shown as item number 5 in Ext.P12. The actual place of incident is shown as the spot between the two country boats which were kept on the shore of Kayal. That place is shown to be 50 mtrs. to the south of the washing place noted above. 24. Spot No.8 is shown as the place lying in the Kayal, very near to the shore from where torn blouse of deceased girl was taken by PW5. Aluminum vessel (MO1) which contained MO2 was seen at the washing place mentioned above. It was seized as per Ext.P4. In the area lying to the east of the Kayal, small thatched sheds were seen, where country boats used for fishing with fishing-nets were kept. It was also mentioned that the open area at that place was used for drying fish. The place from where the blouse piece was stated to have been seized was having water at the height of three feet. That spot is marked as Spot No.8 in Ext.P12. Due to the flow of water, waste materials, rags etc. were seen gathered at that place. It was noted that the dead body of the girl was seen at a place (spot No.9) about 50 mtrs. to the west of Spot No.8. To the west of spot No.9 is the area shown as “pozhi” (the sand bund which used to be cut open to allow the backwater to flow to the Arabian Sea). It was noted that at spot No.9 also underneath the water waste materials were seen gathered. It was specifically mentioned in Ext.P4, that spot No.9 was marked as pointed out by PW4 the grandfather of deceased girl. MO3 is the thorth which was worn by the deceased when she had gone to the washing place for washing MO2. That MO3 thorth was found at a spot marked as spot No.11 in Ext.P12 plan. It was mentioned in Ext.P4 that the said spot was shown to PW38 by PW5. The spot where the thorth was found was located at a point 3 mtrs. to the north of the country boat mentioned earlier and about 30 mtrs. That MO3 thorth was found at a spot marked as spot No.11 in Ext.P12 plan. It was mentioned in Ext.P4 that the said spot was shown to PW38 by PW5. The spot where the thorth was found was located at a point 3 mtrs. to the north of the country boat mentioned earlier and about 30 mtrs. to the north west of the spot where the dead body of the girl was found. In Ext.P4, it was also noted that the place where the liquor bottle was found was the northern portion of the country boat in which fishing nets were also kept. It was testified by PW5 that there were no clothes on the dead body of the girl, when he saw the dead body in the morning of 26.12.2004. He, (PW5) Androos and Yesudas went in search of the clothes worn by the girl when she had been to the Kayal for washing clothes. It was stated by him that the torn blouse, red in colour was found in the water near the “pozhi” mentioned earlier. That torn blouse was identified by him as MO4. It was further stated by him that he and two other persons thereafter went to the western side of that Kayal. On the shore of that Kayal country boat was seen. At the side of that country boat MO3 thorth was also seen and that was also taken by him. Thereafter, he and two others inspected inside the boat. They could then see a brandy bottle which contained little quantity of brandy. That brandy bottle with brandy which was identified by him as MO10 was also taken by him to the house of PW1. That was how, MO3 thorth, MO4 torn blouse and MO10 brandy bottle happened to be seen beneath the cot at the time when Ext.p3 inquest was conducted by PE37. It was stated in Ext.P4 that the spots where MO3, MO4 and MO10 were found were shown to PW38 by PW5 at the time of preparation of Ext.P4 scene mahazar and those aspects were mentioned in Ext.P4. Though PW5 was also cross examined in extensor, his evidence remained unshaken. Therefore, the credibility of PW5 also cannot be doubted at all. It was stated in Ext.P4 that the spots where MO3, MO4 and MO10 were found were shown to PW38 by PW5 at the time of preparation of Ext.P4 scene mahazar and those aspects were mentioned in Ext.P4. Though PW5 was also cross examined in extensor, his evidence remained unshaken. Therefore, the credibility of PW5 also cannot be doubted at all. It is pertinent to note that Ext.P3 inquest report and Ext.P4 scene mahazar were prepared by PWs.37 and 38 on 26.12.2004 itself; that is on the next day of the incident. It was long thereafter the accused was arrested. Therefore, it cannot be contended that the different places were the material objects were found were noted in Ext.P3 and P4 to suit the prosecution case. The statement to that effect was recorded by the investigating officer long prior to the arrest of the accused. 25. The learned counsel for the accused would submit that spot No.25; that is; the space in between two country boats marked in Ext.P12 was lying about 50 mtrs. to the south of the washing stones and on the eastern side of the Kayal where as the place where MO3 thorth was found and spot No.8 where the torn blouse was seen was on the western side of the Kayal and as such it has to be found that MO3 thorth and MO4 blouse alleged to have been found out by PW5 can have no relevance at all nor can those material objects be used by the prosecution to prove its case. It is important to note that those material objects were seen by PW5 and others when they went in search of those clothes because the dead body of the girl was seen in a naked condition. It is quite natural to be inquisitive to know where the clothes worn by the deceased were. That was how PW5 and others happened to go in search of those materials. Those materials were seen at different places as mentioned earlier. During high tide and low tide, there would be change of direction of the flow of water. Due to the flow of water, waste materials, rags, clothes etc. would get gathered or collected at certain places in the river of Kayal as the case may be. The incident happened at about 3 P.M. on 25.12.2004. During high tide and low tide, there would be change of direction of the flow of water. Due to the flow of water, waste materials, rags, clothes etc. would get gathered or collected at certain places in the river of Kayal as the case may be. The incident happened at about 3 P.M. on 25.12.2004. Thorth, blouse piece etc were found on the next day at about 7 a.m. Therefore, it can be reasonably inferred that the blouse happened to be at the spot mentioned above because of the circumstances mentioned above. 26. The next question is with regard to the country boat from the inside of which the liquor bottle (MO10) was taken by PW5. It was near that country boat MO3 thorth was also found. The learned counsel for the accused would submit that since the thorth and liquor bottle were found on the western side of the Kayal it cannot be said that the incident could have taken place at the place situated between the two country boats, marked as spot No.25 in Ext.P12 plan. According to the prosecution that was the place shown by the accused. It was from that place hairs of the accused and of the deceased could be collected. The evidence given by PW38 regarding those aspects was corroborated by PW12 an independent witness also. The evidence given by PW38 and PW12 would show that the sand taken from the place was sieved and then a few hairs were obtained. It was stated that those hairs were taken in a packet. Ext.P2 is the mahazar prepared for that purpose which was attested by PW12. The learned counsel would submit that in order to fix the complicity of the accused, PW38 might have taken hairs of the deceased and of the accused along with other hairs and a mahazar might have been prepared for that purpose. No such assumption can be had. The action taken by the police officer can not be viewed with distrust or suspicion. On going through the evidence it could not be found that during the relevant time, that is, in between the date of the incident and the date of Ext.P2 there was any such onrush of water so as to accept the defence theory of impossibility of any hair existing at the place mentioned in Ext.P2. On going through the evidence it could not be found that during the relevant time, that is, in between the date of the incident and the date of Ext.P2 there was any such onrush of water so as to accept the defence theory of impossibility of any hair existing at the place mentioned in Ext.P2. PW12 has given details regarding the type of sieve used for sieving and it was by that process a few hairs could be obtained. The learned Public Prosecutor, submits that in the light of the evidence given by PW12 and PW38 the contention raised by the defence that it was only a planted recovery cannot be sustained. 27. PW20 Dr. Sreekumar who was then working as Assistant Director Biology, Forensic Science Laboratory, Thiruvananthapuram, has testified that a sealed packet was received in his laboratory and that the seals of the packet were intact and that 10 separate items were seen in that packet. It was stated by him that except items 4, 9 and 10 all others were examined by him. Ext.P7 is the certificate issued by him. It was stated by him that the suspected marks of bites, shown as item No.7(a) were not sufficiently clear and hence it could not be compared to give an opinion whether it was similar to the models furnished as item No.2(a). Ext.P38 is the forwarding note as per which the items mentioned there in were sent for various examinations as mentioned therein. Items 2(a) were the photographs containing a pair of study models of human dentition forwarded to ascertain whether the bite marks as could be seen from the photographs of the body particularly of the chest portion of the body were identical. But as it was not sufficiently clear it could not be ascertained. Item No.3(a) the underwear worn by the accused did not contain any vaginal epithelial cells. Similarly, the nail clippings of the deceased also did not contain any fibers or any other material relevant for the purpose of this case. 28. Four of the hairs found in item No.5 were identified to be human scalp hairs which were similar to the sample scalp hairs shown in item No.1(b). Item 1(b) contained the hairs of the accused taken from the Medical College Hospital as sample hairs. 28. Four of the hairs found in item No.5 were identified to be human scalp hairs which were similar to the sample scalp hairs shown in item No.1(b). Item 1(b) contained the hairs of the accused taken from the Medical College Hospital as sample hairs. Item No.5 mentioned earlier contained the hairs taken from the place of occurrence noted in Ext.P2 referred to earlier. It was further certified in Ext.P7 that one of the hairs in item No.5 taken from the scene of occurrence as per Ext.P2 was also human scalp hair similar to the sample scalp hairs found in item No.6(c) which was the scalp hair of deceased Mariya. Therefore, that part of the statement pertaining to the disclosure made by the accused pointing to that particular place from where the hairs of the deceased and of the accused could be collected by sieving the sand particles taken from that area is admissible in evidence. Four out of those hairs were proved to be of the accused and one hair was proved to be of the deceased. It clinchingly established that the incident did occur at the place shown in Ext.P2 and that the accused alone did commit the crime at the time and place. The argument advanced by the learned counsel for the accused that court should not place implicit reliance on that piece of evidence since the possibility of the police introducing those objects to fix the accused with the criminal liability does not appeal to us. The learned Public Prosecutor Sri. S.U. Nazar would emphasise that Ext.P7 certificate, proved by PW20, is sufficient to hold that the offence was committed at that place and it was the accused who did the crime, for, there could be no plausible explanation as to how the hairs of the accused and of the deceased could be seen at that place. 29. Yet another circumstance relied upon by the prosecution is the evidence obtained from Ext.P5 report prepared by PW18. It was sworn by PW38 that while the accused was questioned he also disclosed the fact that a very minor injury was caused on the foreskin of his penis which he realised after taking bath on the day of the incident. The relevant portion of the statement given by him to PW38 is to the effect that he used the extract of a particular plant found by the wayside. The relevant portion of the statement given by him to PW38 is to the effect that he used the extract of a particular plant found by the wayside. His statement was to the effect that he crushed the leaves and the extract was applied to the injury/wound. According to PW38 when the underwear worn by the accused was seized it showed some greenish stains. According to PW38 the accused gave a statement to the effect that if he was taken to the particular place he would show the plant mentioned above and accordingly as led by the accused he went to that place and as pointed out by the accused, a few plants were seized by him. Those plants were taken in another pocket and the underwear worn by the accused were sent for examination. Ext.P26 is the mahazar as per which the plants mentioned above were seized by PW38 based on the information given by the accused. It was stated that those plants recovered as per Ext.P26 and ‘shuddy’ (MO12) seized as per Ext.P17 mahazar on the date of his arrest were forwarded to the FSL, Thiruvananthapuram for examination. 30. Ext.P5 which was proved by PW18 the Scientific Assistant would show that item No.9 shown therein (the plants mentioned earlier) and item No.3(a) (shuddy-jetty) were examined to find whether MO12 contained the plant extract. It was stated by PW18 that item 9 contained the leaves of the plant. Since the accused could not give the name of the plant and since the investigating officer was not in a position to furnish the name of the plant it was not specifically mentioned therein. The crucial point is whether that was the plant shown by the accused and whether it was the extract of that plant which was used by the accused and whether the stain of that extract could be found on MO12. The evidence given by PW18 did undoubtedly prove that the extract of the aforesaid plant was detected on MO12 (shuddy) which was worn by the accused. 31. The Test Identification Parade (TIP) in this case was conducted by P.W.30, the learned Judicial First Class Magistrate, Neyyattinkara as ordered by the learned Chief Judicial Magistrate as per Ext.P19. The TIP was conducted by him on 23.2.2005. Ext.P18 is the report prepared for that purpose. 31. The Test Identification Parade (TIP) in this case was conducted by P.W.30, the learned Judicial First Class Magistrate, Neyyattinkara as ordered by the learned Chief Judicial Magistrate as per Ext.P19. The TIP was conducted by him on 23.2.2005. Ext.P18 is the report prepared for that purpose. The learned Magistrate has stated that it was only after he was convinced from the statement of the accused that he was not shown to the witnesses prior to the identification parade, the identification parade was conducted. 32. The learned counsel for the accused would submit that though the procedure in conducting the TIP followed by P.W.30 has not been assailed, it was not ensured by the learned Magistrate that the photograph of the accused was not shown to P.W.1 before conducting TIP. But the learned Magistrate was convinced from the answer stated to have been given by P.W.1 that no particulars of identity were furnished to her nor was the accused shown to her prior to TIP. The learned counsel for the accused would draw our attention to Ext.36. It is a letter issued by the Senior Technical Assistant, Human Molecular Genetics Division, Rajiv Gandhi Centre for Biotechnology to the JFCM Court, Neyyattinkara with copy marked to P.W.38. It was stated that 10 ml of blood samples was collected from the accused on 21.12.2005. The photograph of the accused is seen affixed on that letter. The argument advanced by the learned counsel for the accused is that since the TIP was conducted on 23.2.2005, there was possibility for P.W.38 to show the photograph of the accused to P.W.1 before TIP was conducted. Though this letter was sent to the Magistrate on 21.2.2005, it appears it was received by the Magistrate only on 25.2.2005. If so, it is reasonable to think that the copy of the same could have reached the office of P.W.38 only on or after 25.2.2005. But the learned counsel submits that the photocopy must have been taken at the instance of P.W.38 and furnished to the Senior Technical Assistant of the Rajiv Gandhi Centre for a Biotechnology and so it was possible that the photograph must have been taken prior to 21.2.2005. That is only an assumption. No question was put to P.W.38 to suggest that the photograph was taken at his instance or that it was shown to P.W.1 before TIP was conducted. 33. That is only an assumption. No question was put to P.W.38 to suggest that the photograph was taken at his instance or that it was shown to P.W.1 before TIP was conducted. 33. The learned counsel further submits that though blood sample of the accused was collected and blood sample and the stains of semen were available for conducting DNA finger printing and though the samples were preserved for that purpose, the DNA finger printing test was not conducted. The suggestion made by the defence was to the effect that further steps were not taken for that purpose since the investigating agency was sure that the result would show that the stains of semen collected from the body of the victim were not that of the accused. It was sworn by P.W.38 that he had requested the higher authorities for sanctioning a sum of Rs.20,000/-which was the amount to be remitted at the Rajiv Gandhi Centre for Biotechnology for conducting DNA finger printing test, but the amount was not sanctioned. It is really unfortunate that even when such a gruesome rape-cum-murder was committed, the Government/Police Department could not raise a sum of Rs.20,000/-. The learned counsel for the accused and the learned Public Prosecutor would submit that had the victim been of a rich or powerful class, then the Government would have spent any amount for such purposes, but only because the victim happened to be of a very poor family, the authorities turned deaf ear to the genuine request made by P.W.38 for sanctioning a sum of Rs.20,000/-. It was stated by P.W.38 that 90 days time was about to expire and so in order to see that statutory bail was not granted to the accused, he filed the charge sheet before the expiry of 90 days itself, as otherwise the accused would be granted bail under Section 167(2) Cr.P.C. and if so he would flee and would be impossible for the police to apprehend him again. But it is contended that there was no difficulty to get DNA finger printing conducted even thereafter under Section 173(8) of the Cr.P.C. if actually the investigating agency was very keen to have it conducted. 34. When collection of evidence by scientific method would be more accurate and dependable and when the possibility of collecting such evidence is there, the investigating agency cannot shirk its responsibility by putting forth such reasons. 34. When collection of evidence by scientific method would be more accurate and dependable and when the possibility of collecting such evidence is there, the investigating agency cannot shirk its responsibility by putting forth such reasons. The endeavour of the investigating agency should be to bring the real culprit before court and to ensure conviction for the crime proved to have been committed by him. The interest of the society cannot well be protected otherwise. It was argued at the Bar that when the Government spends lakhs of rupees for so many other purposes, it cannot throw its hand up in helplessness and putforth a lame excuse of want of funds, that too, only Rs.20,000/-. It is a serious matter which the Government must certainly think over and appropriate directions issued in the matter. It would be ideal if the Government provides a fund exclusively for such purposes and issues such orders which would enable such officers to get release of the amount without delay to ensure justice to the victims as otherwise the doctrine of equality before law and equal protection of law envisaged under Article 14 of the Constitution of India would be a sheer myth for the unorganized marginalized poor people. 35. Be that as it may, the question is whether the evidence is sufficient to uphold the conviction of the accused. The TIP is not a substantive evidence. But the fact that it in the TIP conducted, P.W.1 could unmistakably identify the accused as the person who was seen by her on 25.12.2004 when she was going in search of her daughter, especially because after walking for a while he turned back and gazed at P.W.1 and the further fact that he was then wearing only an underwear and the banian of a particular colour inspired confidence in the mind of the learned Sessions Judge. On a careful scrutiny of the evidence, we find no infirmity in the finding so entered by the court below. 36. Though questions were put to some of the witnesses to the effect that the raging waves lashed at during Tsunami had lashed at the sea shores and so there was no possibility of finding any hair at the alleged place of incident, it was denied by the witnesses stating that Tsunami waves had lashed at the sea shores at other places, but there were no such incident in that locality. 37. Yet another important ground that has been projected by Mr. Sujit Mathew Jose is that though diatom test was claimed to have been conducted in this matter, P.W.26 the doctor who conducted postmortem examination has stated that the result of the test was negative. It is argued that admittedly sample water from the place where the deceased was stated to have been sunk or submerged was not taken to find out whether the diatoms found during postmortem examination were similar to the diatoms contained in the sample water. Diatoms are a class of unicellular algae of different shapes found in fresh or sea water or Kayal water. The learned counsel for the accused would submit that though diatom test may have certain limitations, yet the qualitative and quantitative identification of diatoms by experienced hands would provide the most reliable proof of drowning. The line of argument is that if the death of the girl had taken place at some other place and if thereafter the dead body was brought and submerged in the Kayal, then the diatom test, if proved to be negative would go a long way against the case of the prosecution. But that argument cannot be accepted in this case since diatom test was conducted in this case with tissue bits, though it revealed negative results. P.W.26 was emphatic in her statement that she confirmed that the death was due to drowning. She could notice fine sand particles present in the air passages down to the lower deviations which can occur during active breathing in sand mixed water also. 38. The case of the prosecution is that in the course of rape, the girl must have become unconscious and so her body was carried having been wrapped with the lunki belonging to the accused and he sunk the body in Kayal water and so there was no possibility for active breathing. It was deposed by P.W.26 that due to touch in the water continuous stimulation can revive a person from the stage of unconsciousness. The further argument was that if bone marrow, bits from liver, kidney and spleen were taken and compared with the sample water by conducting diatom test the place of drowning could have been ascertained. True, that was also possible. But, there was presence of sand particles in the air passage. The further argument was that if bone marrow, bits from liver, kidney and spleen were taken and compared with the sample water by conducting diatom test the place of drowning could have been ascertained. True, that was also possible. But, there was presence of sand particles in the air passage. The fact that the death was due to drowning could not be assailed at all. Usually the sunken body comes to the surface a little distance away from the site of drowning due to movement or flow of water. A submerged body, after decomposition has advanced usually floats belly up because the buoyancy of the body is increased due to the formation of a considerable amount of gas inside the decomposed body. If there is only a slight distension of abdomen, then the submerged body floats face down, buttocks up, with limbs hanging down in front of the body. 39. According to the prosecution the accused was wearing a lunki prior to the incident but when he was alleged to have been seen walking towards Chembakaramanthura he was wearing only a jetty and banian having stripes of sandalwood colour. The prosecution wanted to contend that the dead body of the girl was wrapped using the lunki and taken to the Kayal and submerged in the Kayal water. It is contended by the defence that even though P.W.38 and other witnesses claimed that the accused had shown that particular place, no attempt was made by the investigating agency to recover that kailimundu from the kayal water. It is contended that the investigating agency has purposely did not seize or produce the kailimundu since that would go against the case of the prosecution. It is true that the investigating agency could have traced out the lunki from the kayal water. Had it been seized, it could have helped the prosecution to prove that the stains of blood oozed out from the vaginal orifice of the victim girl had stained the cloth. True, it would have been an additional link in the chain of the prosecution case. But that is no reason to assume that the prosecution case is untrue or that all the required links to form a complete chain are not brought to the court. 40. To sum up, the following are the circumstances which could be proved by the prosecution. But that is no reason to assume that the prosecution case is untrue or that all the required links to form a complete chain are not brought to the court. 40. To sum up, the following are the circumstances which could be proved by the prosecution. On 25.12.2004 at about 2.30-2.45 PM the victim girl had gone to the Kayal for washing M.O.2. She did not return. She was found missing. In spite of thorough search, the dead body could not be found out on that day, but could be found on the next day morning at about 6 AM. When the dead body was examined, it contained so many abrasions on her body and there was bleeding from her vagina. Postmortem examination revealed that she was raped. The death could have taken place after 2.45 PM as alleged by the prosecution. A person wearing a lunki and a banian of the particular colour (sandalwood colour) was found lying on the sandy area near the sea shore/near the Kayal at about 2.30 PM. When P.Ws.1, 3 and others were searching for the deceased, P.W.1 saw the accused walking along the way towards Chembakaramanthura wearing only a jetty and a banian of that particular colour (sandalwood colour). When the accused was arrested in connection with another case and in the course of questioning when the photograph of the deceased girl was shown to him, there was an unusual conduct and behaviour on the part of the accused. The silver anklets which were worn by the deceased were recovered consequent to the disclosure statement given by the accused. The underwear worn by the accused contained the extract of the plant ‘odiyan pachila’ which is used to heel the wound/injury. From the place shown by the accused, after sieving, hairs could be found which were proved to be the hairs of the deceased and the accused. It was proved that the girl was raped and thereafter her body was submerged in water and thus dies due to drowning. 41. The watch worn by the accused at the time of the incident had water leaked in and so it was given for repair. It shows that the water got leaked into the watch as the accused happened to dip his hands in the kayal water at the time of submerging the body of the girl in the kayal. 41. The watch worn by the accused at the time of the incident had water leaked in and so it was given for repair. It shows that the water got leaked into the watch as the accused happened to dip his hands in the kayal water at the time of submerging the body of the girl in the kayal. The blood group of the semen collected by P.W.26 at the time of postmortem examination was found to be ‘O’ positive. The blood group of the accused was also ‘O’ positive 42. The learned counsel for the accused would submit that the circumstances with which the conclusion of guilt is to be drawn should be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In Padala Veera Reddy v. State of A.P. (1991 SCC (Cri.) 407) the apex court held that the following tests must be satisfied when a case rests upon circumstantial evidence: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” It is argued by Mr. Sujit Mathew Jose that the falsity or untenability of the defence set up by the accused cannot be made the basis for finding the accused guilty. The prosecution has to stand on its own legs. The serious infirmity or lacuna in the prosecution case cannot be lost sight of while appreciating the evidence as a whole. In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86] the apex court held that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86] the apex court held that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The cumulative effect of the facts established must be consistent with the hypothesis of guilt. 43. The learned counsel for the accused would submit that simply on the recovery of stolen articles, no inference can be drawn that the person in possession of the stolen articles is guilty of the offence of murder and robbery. As held by the apex court in Sanwat Khan v. State of Rajasthan (AIR 1956 SC 54) no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. The question whether an inference can be drawn that the accused who had sold the silver anklets to P.W.11 was the person who committed murder of the victim Maria has to be considered on the facts and circumstances available in this case [See the decisions of the apex court in Gulab Chand v. State of M.P. (AIR 1995 SC 1598) and Geejaganda Somaiah v. State of Karnataka (AIR 2007 SC 1355)]. The learned counsel would submit that even to draw the presumption under Section 114 (a) of the Evidence Act, the prosecution should prove that the accused was in possession of the silver anklets soon after the murder of the girl. Unless it is proved that the possession of the article was soon after the murder, a presumption of guilt cannot be drawn. According to the learned counsel, there was long duration between the date of murder and the recovery of the articles from the shop of P.W.11. But it is pertinent to note that the evidence given by P.W.11 would show that the accused had sold those articles on a day towards the last week of December, 2004. The seizure of the same from his shop at the instance of the accused, as deposed by P.W.38 was only after he was arrested. Therefore, it cannot be said that there was any time-gap between the date of murder and the sale of the silver anklet at the shop of P.W.11. The seizure of the same from his shop at the instance of the accused, as deposed by P.W.38 was only after he was arrested. Therefore, it cannot be said that there was any time-gap between the date of murder and the sale of the silver anklet at the shop of P.W.11. It was held in Earabhadrappa v. State of Karnataka (AIR 1983 SC 446) that the nature of the presumption under illustration (a) of Section 114 of the Evidence Act must depend upon the nature of the evidence adduced and that no fixed time limit can be laid down to determine whether possession is recent or otherwise. It was further held that each case must be judged on its own facts. 44. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according “as the stolen article is or is not calculated to pass readily from hand to hand”. If the stolen articles were such as were not likely to pass readily from hand to hand, even if there was short time gap that could not be said to be too long so as to contend that the presumption under Section 114(a) of the Evidence Act cannot be drawn at all. There was no case for the accused that the silver anklets reached his hands through somebody else. Even though the exact date of sale to P.W.11 could not be established, it could be proved that the sale of the same by the accused to P.W.11 was with a very few days of the murder. In Tulsiram v. State (AIR 1954 SC 1) the apex court has held that the presumption permitted to be drawn under Section 114(a) of the Evidence Act has to be drawn under the ‘important time factor’. If the ornaments in possession of the deceased are found in possession of a person ‘soon after murder’, a presumption of guilt may be permitted. Hence this decision is also applicable to the facts of this case. 45. Relying on the decision in Ronny alias Ronald James Alwaris & Ors. V. State of Maharashtra (AIR 1998 SC 1251), it was held by the apex court in State of Rajasthan v. Talevar (AIR 2011 SC 2271): “In Ronny alias Ronald James Alwaris & Ors. Hence this decision is also applicable to the facts of this case. 45. Relying on the decision in Ronny alias Ronald James Alwaris & Ors. V. State of Maharashtra (AIR 1998 SC 1251), it was held by the apex court in State of Rajasthan v. Talevar (AIR 2011 SC 2271): “In Ronny alias Ronald James Alwaris & Ors. V. State of Maharashtra, AIR 1998 SC 1251: (1998 Cri LJ 1638), this Court held that apropos the recovery of articles belonging to the family of the deceased from the possession of the appellants soon after in robbery and the murder of the deceased remained unexplained by the accused, and so the presumption under Illustration (a) of Section 114 of the Evidence Act would be attracted:” It was also held: “It needs no discussion to conclude that the murder and the robbery of the articles were found to be part of the same transaction. The irresistible conclusion would therefore, be that the appellant and no one else had committed the three murders and the robbery.” Here the evidence against the accused is not merely the recovery of the stolen/robbed silver anklets but also other circumstances which have been discussed earlier. Therefore, the contention raised by the learned counsel for the accused that it is not safe to draw the inference that it was the accused who committed the murder is found to be devoid of any merit. The recovery of M.O.11 based on the disclosure statement of the accused and the evidence that could be obtained that the sale of the same to P.W.11 was in close proximity of time from the date of the incident would help the court to conclude that the accused happened to be in possession of the silver anklets as he removed it at the time when he sunk the body of Maria in the Kayal water. 46. The circumstances relied upon by the prosecution as have been delineated earlier would leave no doubt that the circumstances unerringly point towards the guilt of the accused and that all the links in the chain of evidence is so complete that there could be no other hypothesis than that of the guilt of the accused. 46. The circumstances relied upon by the prosecution as have been delineated earlier would leave no doubt that the circumstances unerringly point towards the guilt of the accused and that all the links in the chain of evidence is so complete that there could be no other hypothesis than that of the guilt of the accused. It was argued by the learned counsel that suspicion, however, strong cannot be a substitute for proof and that the circumstances from which the conclusion of guilt is to be drawn should be fully established and that there is a long distance to travel from “may be true” to “must be true”. The learned counsel has relied upon the decision of the apex court in Sattatiya Alias Satish Rajanna Kartalla v. State of Maharashtra [(2008) 3 SCC 210]. The decisions cited earlier by the apex court were followed in this decision. In the facts and circumstances which have been detailed earlier, we have no hesitation to hold that the finding of guilt entered by the learned Additional Sessions Judge is correct. The inescapable conclusion is that it was the accused who raped the victim girl and it was he who sunk the body of the girl in kayal water to cause her death. As such it is proved that the accused committed the offences punishable under Sections 376(2)(f) and 302 IPC. Since the silver anklets were robbed by the accused by causing her death, his conviction under Section 397 IPC is also confirmed. 47. It is a case where a seven year old girl was brutally raped and murdered by the accused. The learned Sessions Judge sentenced him only to undergo imprisonment for life for the offence under Section 302 IPC, rigorous imprisonment for 10 years for the offence under Section 376(2)(f) and rigorous imprisonment for 7 years for the offence under Section 397 IPC. No interference is called for regarding the sentence as well. In the result, the Criminal Appeal is dismissed confirming the conviction and sentence passed against the appellant. 48. Before parting with the case, we place our deep appreciation for the sincere effort taken by Adv. Mr. Sujit Mathew Jose who appearing for the appellant as State Brief, argued the case so meticulously. The learned Public Prosecutor Mr. S.U. Nazar has also argued the case very well. 48. Before parting with the case, we place our deep appreciation for the sincere effort taken by Adv. Mr. Sujit Mathew Jose who appearing for the appellant as State Brief, argued the case so meticulously. The learned Public Prosecutor Mr. S.U. Nazar has also argued the case very well. The Registry will forward a copy of this judgment to the Additional Chief Secretary/Home Secretary to Government of Kerala, Home Department, Government Secretariat, Trivandrum and the Director General of Prosecution, Ernakulam (see the observations contained in paragraph 34).