IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 941 of 2005() 1. C.M.ABOOBACKER, S/O.ARABI, MIYANATH Petitioner 2. P.NARAYANAN, S/O.KUNHIRAMAN, PERUVADAN 3. K.A.KARUNAKARAN, S/O.NARAYANAN, 4. T.BALAN, S/O.ACHU, CHENDALAM, Vs 1. THE STATE OF KERALA, REPRESENTED BY THE Respondent For Petitioner :SRI.SOJAN MICHEAL For Respondent : No Appearance The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MR. Justice P.BHAVADASAN Dated :25/09/2009 O R D E R K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal Nos. 941 & 1391 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of September, 2009. JUDGMENT
Bhavadasan, J, These two appeals arise from S.C. 335 of 2000 disposed of by the Additional Sessions Court (Adhoc-I) Ksaragod by judgment dated 30.5.2005. By the said judgment, all the accused were found guilty of the offences punishable under Sections 143, 147, 148 and 326 read with Section 149 of Indian Penal Code. In addition, the third accused was found guilty of the offence punishable under Section 302 IPC also. The third accused had preferred Crl. Appeal No.1391 of 2005 and Crl. Appeal No.941 of 2005 by the other accused persons.
2. The prosecution case reveals thus:
The incident is said to have happened on 20.6.1999 at about 7.15 p.m The victim is Mani @ Mathews. P.W.1 is the neighbour of the deceased. The allegation is that on the date of the incident at the particular time P.W.1 heard a shriek from the road followed by a cry "snake". That brought P.W.1 outside and she asked who was it. Hearing her calls, her neighbour, P.W.2, also came to the spot. They went to the place from where P.W.1 had heard the sound. P.W.2 had a torch with him. In the light of the torch, they found a person lying on the road. They went to the house of a neighbour by name Baby. At that time, Baby was not at home. His son Binu alone was there. He was informed about the incident. He then told P.Ws.1 and 2 that he had seen Aboobacker (A1) going in his jeep a short while ago and he asked them to proceed to the place and that he would follow. By that time the autorickshaw driven by P.W.7 had come to the place. All the three of them got into the autorickshaw and went to the place where the body was found by P.Ws. 1 and 2. They found that the person who was lying on the road was none other than the victim namely Mani. At about 11.30 p.m. on the same day, P.W.1 went to the police station and laid Ext.P1 First Information Statement. That was recorded by P.W.21, the Sub Inspector of Police at the relevant time. On the basis of Ext.P1 FIS, he registered Crime No.126 of 1999 of Rajapuram Police Station as per Ext.P1(a) FIR. Investigation was taken over by P.W.25. On 21.6.1999 he went to the place where the body was kept, conducted inquest over the body and prepared Ext.P2 report. He seized M.Os. 9 and 10 found on the body and he then sent the body for postmortem examination. Postmortem examination was conducted by P.W.19 and Ext.P6 is the report. In the meanwhile, P.W.25 prepared Ext.P8 scene mahazar. From the scene of the incident, he recovered M.O.3 and M.O. 5. He also found M.O.6 chappals near the place of the incident. He also recovered M.O.7 umbrella and recorded the statements of witnesses. He filed Ext.P11 report incorporating the names of the accused before court. Ext.P12 is the report filed by him incorporating Section 143 also. He had the jeep owned by first accused recovered under Ext.P3 mahazar. First accused was arrested on 22.6.1999. He seized the clothes worn by the first accused as per Ext.P10 and M.Os. 11 and 12 are the said clothes. Finding that there are other accused, P.W.25 filed Ext.P13 report. According to him, as per Ext.P14 confession statement of the third accused he had M.O.2 recovered. Accused Nos. 2 to 5 were arrested on 22.6.1999 and he had the clothes worn by them at the relevant time seized as per Ext.P4 mahazar. He produced all the materials before court. Later on, P.W.25 claims that he had M.O.1 also seized. Ext.P19 is the forwarding note sent by him to court for sending the articles for chemical examination. The report received is Ext.P22. He completed investigation and laid charge before court after obtaining the site plan etc.
3. Judicial First Class Magistrate-I, Hosdurg, before whom final charge was laid, took cognizance of the offence. On summons the accused entered appearance before the said court. The learned Magistrate found that the case was exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Kasaragod. The said court made over the case to the Additional Sessions Court (Adhoc-I), Kasaragod for trial and disposal.
4. On getting the records, the trial court framed charges against the accused for the offences punishable under Sections 143, 147, 148, 302 and 120B read with Section 149 of Indian Penal Code. The accused pleaded not guilty and claimed to be tried. Prosecution had therefore P.Ws. 1 to 26 examined and Exts. P1 to P25 marked. M.Os. 1 to 14 were identified and marked. After the closure of the prosecution evidence the accused was questioned under Section 313 of Criminal Procedure Code. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on defence. They had examined D.W.1 and Exts.D1 to D6 marked. On a consideration of the entire evidence, the court below found that the prosecution has succeeded in establishing the case against the accused. All the accused were found guilty of offences punishable under Sections 143, 147, 148 and 326 read with Section 149 IPC. The third accused was found guilty of the offence punishable under Section 302 also. Conviction and sentence followed. The said conviction and sentence are assailed in these appeals.
5. Since the evidence is common, these two appeals are being disposed of by a common judgment.
6. That Mani, the victim, died due to the injuries suffered by him is a matter not in dispute. Ext.P6 is the postmortem report prepared by P.W.19, Professor of Forensic Medicine and Police Surgeon attached to Pariyaram Medical College. The said document shows that eleven anti mortem injuries were noticed on the body. According to P.W.19, injury No.6 is the fatal injury and that is sufficient to cause death. According to him, the said injury could have been caused with M.O.2. Whatever that be, it is a clear case of homicide, since the death was due to inflicted wounds.
7. The next question that arises for consideration is whether the prosecution has established the acts attributed to the accused persons. Recollecting the prosecution case, the allegation is that the first accused was on enimical terms with the deceased and there were litigations pending between him and a friend of the deceased. The deceased was rendering assistance to his friend to fight the litigation with the said accused. First accused had on several occasions declared that he would teach the victim a lesson. Prosecution allegation is that in furtherance of the said intention, the accused persons have conspired to do away with deceased, and that was done on 20.6.1999.
8. P.W.1 claims to know about the incident. She is a neighbour of the deceased. On the day of the incident she would say that she heard a shriek from the road followed by a cry "snake". That brought her out and by that time P.W.2 had also joined her. They went to the direction from where P.W.1 had heard the sound. P.W.2 lit the torch. They found a person lying on the road. P.W.1 would claim that she went to the house of one Baby. However, Baby was not at home and his son P.W.4 was at home. P.Ws. 1 and 2 told him about the man lying on the road. P.W.4 replied that he had seen first accused going in his jeep a short while ago and asked them to proceed and that he would follow them. She would further say that when they came to the road they saw P.W.7 coming in his autorickshaw and they got into the autorickshaw and proceeded to the place. Soon P.W.4 joined them. They found that the person lying in the road was none other than Mani. The matter was informed to the relatives of the deceased. A short while thereafter, she happened to see the deceased being carried away in a police jeep. She went to the police station at about 11.30 in the night and lodged Ext.P1 First Information Statement.
9. The next witness is P.W.2. He speaks in tune with P.W.1. Therefore, it is unnecessary to narrate his evidence in detail.
10. The next witness is P.W.4. He claims to know about the incident. The body of the deceased was found lying on the road in front of his house. His house is about 100 meters away from the place of incident. In fact it is near the house of P.W.1. He would claim that he had seen first accused's jeep driven by the said accused from west to east at about 7.30 p.m on the date of the incident. P.W.4 was waiting for his parents, who had gone out. He claimed that usually whenever first accused passes by, he used to stop his vehicle and talk to him, but on that day, that did not happen. He claims to have seen first accused and second accused going along the road from west to east. He would also claim that a short while thereafter accused Nos. 3, 4 and 5 were seen following accused Nos. 1 and 2. He would say that P.Ws. 1 and 2 came to his house and told him what they had noticed. They got into the autorickshaw driven by P.W.7 and went to the place. When P.Ws. 1 and 2 came to his house and told him about the matter, he told them that he had seen the first accused passing by in his jeep a short while ago. On reaching the place they found that the person who was lying on the road was Mani @ Mathews. P.W.4 claims to have contacted Rajapuram Police Station, but the phone was not attended to by anybody. He claims to have called a person by name Vijayan Nambiar and informed him about the mishap and asked him to come with his jeep. P.W.4 would say by then a police jeep had come to the spot and taken the deceased in the jeep. He says that there was previous enemity between first accused and the deceased.
11. The next witness is P.W.5. It appears that there was a civil case between him and the first accused. According to him, the deceased used to help him in the litigation. That was not liked by the first accused. The case was decided in his favour. On the date of the incident he claims to have seen the deceased. On that day, he says that the deceased had come to his shop. Since it was raining heavily he closed his shop early and they decided to return home together. He would also say that at about 6.30 p.m. on the date of the incident the fourth accused had come to his shop to buy a cigarette. He claims that the fourth accused asked him whether the deceased had gone home. He replied that the deceased would be returning along with him. Later an autorickshaw was fetched and he along with the deceased, Baby and Kunhiraman got into the autorickshaw driven by P.W.7. While they were going along, he claims that the jeep driven by the first accused went past them. He happened to see two persons entering the main road from the bye-lane road to the quarry. A short distance thereafter they found a jeep parked on the side of the road and that belonged to the first accused. Autorickshaw went past the jeep and later he came to know that Mani was no more.
12. P.W.6 would claim that from 6 p.m. onwards on the date of the incident he and the deceased were together. He had gone to attend a meeting. He met the deceased there and returned home together. He would say that on the way they found the jeep belonging to the first accused parked on the side of Geo medicals. There were four persons in the jeep and they were accused Nos.2 to 5. He went and asked where was Aboobacker, thinking that if Aboobacker was available, he could go in that jeep. They said that they were not aware where Aboobacker had gone. He too would say that while they were going in the autorickshaw as claimed by P.W.5, the jeep driven by the first accused went past by them. Accused Nos. 2 to 5 were there in the jeep and he was not able to identify the person who was driving the jeep.
13. P.W.7 is an autorickshaw driver by profession. He speaks about the travel by the deceased and three others on the date of the incident as claimed by P.W.4. He would say that while they were going along the road the jeep driven by the first accused went past by them. Baby and Kunhiraman got down at a place called Manikallu. They went further and stopped at a place called Arakkankada for the deceased to alight. As soon as they went past the house of P.W.4, they happened to see the jeep of the first accused parked on the side of the road. There was nobody in the jeep. When P.W.7 was returning home after the day's trip, he saw first accused going back to his house. He speaks about P.Ws. 1, 2 and 4 having got into his auto for going to the place where the body was lying.
14. P.W.8 would say that the first accused is very familiar to him and he used to travel in his jeep. A week before the date of the incident and while he was travelling along the first accused, he claims that the first accused told that he would teach the deceased a lesson. He claims that he had conveyed this information to the father of P.W.4. However, this witness had turned hostile.
15. P.W.9 is an autorickshaw driver. At the time of the incident he was driving a jeep. He knows the first accused. On 18.6.1999 he says that he had occasion to see the first accused and four other accused were also with him. He found them standing by the side of the jeep near the stadium. It appeared that the jeep had developed some trouble. He claims that he had gone near the jeep and he found the four persons sitting in the jeep and heard them saying "he shall not be let off". He returned.
16. P.W.13 is the wife of the deceased. She claims that earlier her family and first accused were on very cordial terms. Later they fell out since her husband had helped P.W.5 in a litigation. She would claim that thereafter her husband was implicated in several false cases by the first accused. She says that her husband had told her that the first accused was threatening him.
17. This is the oral evidence in the case.
18. As far as the documentary evidence is concerned, the relevant documents relied on by the court below are Ext.P20, which is the chemical analysis report, Ext.P14, confession statement said to have been given by the third accused, which led to the recovery of M.O.8.
19. The court below has in paragraphs 75, 76 and 77 discussed the materials on record. The court came to the conclusion that on the available materials the prosecution has succeded in establishing the case.
20. Learned counsel appearing for the appellant pointed out that the court below has based its conclusion on speculations, imaginations, conjectures and surmises. There is absolutely no evidence at all to connect the accused with the incident involved in this case. All that the evidence, at best, shows is that the first accused along with others had travelled in a jeep on the date of incident. Learned counsel for the appellants drew the attention of this court that the conspiracy alleged by the prosecution has been found against by the trial court. Reliance placed on the chemical analysis report, which indicates that M.O.8 had blood stains on it and therefore, the same is an incriminating evidence is incorrect. Learned counsel pointed out that the evidence of P.W.25, the investigating officer and also the mahazar, by which M.O.8 was recovered did not show that M.O.8 contained stains of blood at the time of recovery. That casts considerable suspicion on the prosecution version. Learned counsel for the appellants pointed out that the case is based on circumstantial evidence and law is well settled in this regard. There is absolutely no evidence in this case at all to show that the deceased was in the company of the accused at or about the time of the incident or that they were seen carrying any weapon. According to learned counsel, the conviction and sentence are totally unsustainable in law.
21. The learned Public Prosecutor pointed out that the evidence clearly shows that the relationship between the first accused and the deceased was bitter and that first accused has indicated that he would deal with the deceased as spoken to by some of the witnesses. It was pointed out that on the date of the incident, just before the alleged time of incident first accused and others were seen travelling in a jeep and in fact they were found waiting by the side of the road, along which the deceased had come in an autorickshaw. These circumstances taken along with the blood stains found on M.O.8, according to the learned Public Prosecutor, are sufficient to show that the accused are the culprits, responsible for the death of the deceased.
22. At the outset it may be noticed that the prosecution case is built on circumstantial evidence. It is well settled that while appreciating circumstantial evidence the courts have been cautioned that the court must adopt a very cautious approach and should record the conviction only if all the links in the chain are complete, pointing to the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating the circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, one in favour of the accused must be accepted. The circumstances relied on must have been fully established and must be consistent only with the hypothesis of guilt. But, that is not to say that the prosecution has to meet any hypothesis put forward by the prosecution and has to answer them however far fetched and fanciful it might be, nor does it mean that the prosecution evidence must be rejected on the slightest doubt because law permits rejection, if the doubt is reasonable and not otherwise. It is not every lingering or fanciful doubt that can be regarded as a reasonable doubt. A doubt to be reasonable must be such that a reasonable person would entertain. Doubt of fleeting nature approximating to vague hunches cannot pass muster a reasonable doubt. Usually three tests are applied in such cases. They are, (1) The circumstances from which the inference of guilt is sought to be drawn, must be cogently and fully established.
(2) Those circumstances should be of definite tendency unerringly pointing towards the 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 no one else.
23. These aspects had been considered in a number of decisions. It is unnecessary to refer to all of them. In the decision reported in Chattar Singh v. State of Haryana (AIR 2009 SC
378), the Apex Court held as follows:
"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1963); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC
446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
We may also make a reference to a decision of this Court in C.Chenga Reddy and Ors. v. State of A.P. 1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence "
In Padala Veera Reddy v. State of A.P. And Ors. (AIR 1990 SC 79)l, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(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."
In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl. L.J 1104), it was pointed out 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. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and in capable of explanation, upon any other reasonable hypothesis that that of his guile, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
24. In the decision reported in Ujjagar Singh v. State of Punjab 2009) 1 SCC (Cri) 272), it was held as follows:
"We have considered their arguments very carefully. In Mahmood v. State of U.P., it has been observed that in a case dependent wholly on circumstantial evidence, the court must be satisfied-
"(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt;
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused;
(c) that the circumstances, taken collectively, are incapable of explanation of any reasonable hypothesis save that of the guilt sought to be proved against him." In this case this court held that the omission of the prosecution, inter alia, to have the fingerprints found on the alleged murder weapon was fatal to the prosecution story."
In sharad Birdhichand Sarda v. State of Maharashtra, this court discussed the ratio of the judgments in Hanumant Govind Nargundkar v. State of M.P., Tufail v. State of U.P., Ram Gopal v. State of Maharashtra and Shivaji Sahabrao Bobade v. State of Maharashtra and observed thus:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established."
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be proved' and must be or should be proved' as was held by this court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made:
"19 Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Mr. Goburdhun has also cited Mahmood v. State of U.P., Shankarlal Gyarasilal Dixit v. State of Maharastra, Sharad Birdhichand Sarda v. State of Maharashtra, Omwati v. Mahendra Singh, Sudama Pandey v. State of Bihar and Ramreddy Rajesh Khanna Reddy v. State of A.P. In support of his plea relating to the evaluation of circumstantial evidence. These judgments have broadly followed the principles laid down in the judgments referred to above and need not therefore be dealt with by us in extenso. It must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. It is in this background that we must examine the circumstances in the present case."
25. In the decision reported in Vinay D. Nagar v. State of Rajasthan 2008) 5 SCC 597) it was held as follows:
"The principle of law is well established that where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
26. In this context, it is useful to ascertain what is meant by 'reasonable doubt'. In the decision reported in Gangadhar Behera v. State of Orissa 2002) 8 SCC 381) it was held as follows:
"It is submitted that the benefit of doubt should be given on account of the co-accused's acquittal. It was submitted that the evidence is inadequate to fasten guilt, and therefore the prosecution cannot be said to have established its case beyond doubt.
Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh) Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava). A reasonable doubt is not an imaginary , trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh v. State (Delhi Admn.). Vague hunches cannot take the place of judicial evaluation."
27. It is also well settled that if on analysis of circumstantial evidence the court feels that two views are possible, then the view favourable to the accused will have to be accepted. (See the decision reported in State of Maharashtra v. Champalal Punjaji Shah (1981 SCC (Crl) 762 . It is also useful to mention the principles regarding 'appreciation of evidence'. In the decision reported in State of Maharashtra v. Siraj Ahamed Nisar Ahmed (2007 (5) SCC 161) it was held as follows:
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence, more particularly keeping in view the deficiencies, drawback and infirmities pointed out in the evidence, as a whole, and evaluate them to find out whether it is against the general tenor of the evidence even by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hyper technical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole."
28. It may not be inappropriate to refer to two of the decisions in this context. They are 1) Lalliram v. State of Madhya Pradesh (2008(10) SCC 69), wherein it was held as follows:
"As rightly contended by the learned counsel for the appellant a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Amankumar case it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule f law that her testimony cannot be acted upon without corroboration in material particulars. She stands n a higher pedestal than the injured witness. In the latter case there is injury in the physical form which in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial."
2) Charan Singh v. State of Punjab (AIR 1975 SC 246) "In the context of what value should be attached to the statements of the witnesses examined in this case our attention has been invited by the learned counsel for the appellants to a number of authorities. We have refrained from referring those authorities, because, in our opinion, reference to those authorities is rather misplaced. The fate of the present case like that of every other criminal case depends upon its own facts and the intrinsic worth of the evidence adduced in the case rather than what was said about the evidence of witnesses in other decided cases in the context of facts of those cases. The question of credibility of a witness has primarily to be decided by referring to his evidence and finding out as to how the witness has fared in cross-examination and what impression is created by his evidence taken in the context of the other facts of the case. Criminal cases cannot be put in a straight jacket. Though there may be similarity between the fact of some cases, there would always be shades of difference and quite often that difference may prove to be crucial. The same can also be said about the evidence adduced in one case and that produce in another. Decided cases can be of help if there be a question of law like the admissibility of evidence. Likewise, decides cases can be of help if the question be about the applicability of some general rule of evidence, example the weight to be attached to the evidence of an accomplice. This apart, reference to decided cases hardly seems a apposite when the question before the court is whether the evidence of a particular witness should or should not be accepted."
29. Going by the records, it must be said that the evidence is too feeble. All that the prosecution has been able to show at best is that the first accused was seen travelling in a jeep along with other accused on the date of the incident just before the time at which the incident is said to have taken place. Even assuming that it is true that at the relevant time accused Nos. 2 to 5 were seen along with the first accused, that by itself is not sufficient to come to the conclusion that it was the accused, who had caused injuries to the deceased. No doubt it is a homicide. It may also be true that first accused and the deceased were on enemical terms due to various reasons. Evidence discloses that there were litigations between them and first accused had filed complaints against the deceased. Merely from that fact, to draw an inference that it was the first accused and his companions, who caused hurt to the deceased, is too far fetched.
30. The court below has chosen to place considerable reliance on the fact that the accused were seen together at or about the time of incident and also the recovery of M.O.8. In paragraph 77 of the judgment the lower court has mentioned the circumstances, which according to the court below, lead to the irresistible conclusion that the injuries were caused by the accused.
31. It must be said that the grounds relied on by the court below are imaginary than real. None of the witnesses examined by the prosecution claimed to have seen the accused and the deceased together. The declarations and utterances by the first accused that he will teach the deceased a lesson and that the deceased will be dealt with properly, by no stretch of imagination can be taken as a conclusive proof of the act of the accused. Apart from the improbability of such evidence, it looks highly artificial also.
32. What now remains to be considered is the recovery of M.O.8, which is claimed to have been made on the basis of the statement said to have been given by the accused. According to the prosecution, the statement made by the accused, based on which recovery was made, becomes admissible under Section 27 of the Indian Evidence Act. It appears that the court below was greatly impressed by the said recovery.
33. Before going into the question of recovery, the law on the point may be considered.
34. It is well settled that in order to attract Section 27, which is in the nature of an exception to Sections 25 and 26 of the Evidence Act, two essential ingredients will have to be established. Disclosure statement on the basis of which recovery is said to have been made must 1) disclose authorship of concealment and (2) the factum of concealment. The Section is based on the theory of confirmation by subsequent facts. As already noticed Section 27 is an exception to Sections 25 and 26. Exception is that if a fact is actually discovered in consequence of the information given by the accused, it gives some guarantee of truth of that fact. In the decision reported in Geejaganda Somaiah v. State of Karnataka (AIR 2007 SC 1355) it was held as follows:
"Section 25 of Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, thee is an exception carved out by Section 27 of the Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally terms as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act."
35. In the decision reported in George v. State (2005(3) KLJ 593) it was held as follows:
"A reading of the confession alleged to have been made by the appellant shows that he had not stated anything about the concealment of those articles. He only stated that if he was taken to the place, he will show the articles. One of the primary requisites to make a recovery in pursuance of the confession made by the accused under Section 27 of the Evidence Act, the authorship of concealment is established, the recovery in pursuance of the information stated to have been furnished by the accused will not fall under "discovery" as envisaged under Section 27 of the Indian Evidence Act."
"It is true that even if the statement may not fall within the purview of Section 27 of the Evidence Act, the conduct of the accused leading a police officer to a particular place and pointing out an article kept there will be relevant under Section 8 of the Evidence Act. There is clear distinction between the conduct of person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act if such conduct is influenced by any fact in issue or relevant fact (See Prakash Chand v. State (Delhi Admn. -AIR 1979 Sc
400). In Raveendran & Others v. State (1989 (2) KLJ
534) it was held as follows:-
"The evidence of the circumstances simplicitor that the accused led a police officer and pointed out the place or article kept hidden, would be admissible as conduct under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of S.27."
In V.Ravi v. State of Kerala (1994 Crl.L.J. 162) also it was held that the confession though not admissible under Section 27, it is admissible under Section 8. But, the conduct alone is not sufficient to find a person guilty of the offences alleged against him.
It is settled position of law that recovery is not substantive evidence. It is corroborative evidence (See D.B.DEshmukh v. State AIR 1970 Bombay 438; Babboo v. State of M.P. - AIR 1979 SC 1042; and Harish Natwarlal Mistry and ors. Etc. v. State of Gujarat - 1993 (1) Crimes 451). The evidence on record shows that in none of the recoveries the authorship of concealment is established."
36. In the decision reported in Sankara Narayanan v. State of Kerala (2006(3) K.L.T. 429) it was held as follows:
"Mr. Sujith Mathew Jose, learned Public Prosecutor appearing for the State on the other hand for a contrary view relied upon another judgment of the Honourable Supreme Court in State of Maharashtra v. Suresh (2000 SCC (Cri) 2630, paragraph 26 of the judgment which is relevant and which supports the contention of the learned Public Prosecutor reads as follows:
"We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well- justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in S.27 of the Evidence Act."
37. Now one may have a look at the mahazar, by which M.O.8 was recovered and the statement which led to the recovery. Ext.P14 is the extract of that portion of the confession statement, which led to the recovery. It reads as follows:
One may at once be noticed that the above statement does not disclose the authorship of concealment at all. It is only stated that if he is taken to the place, he will show where M.O.8 had been thrown. There is nothing in the statement to indicate it was he who had thrown M.O.8 at the place. In the light of the above fact it is not possible to accept the prosecution case that the statement which led to the recovery of M.O.8 falls within the ambit of Section 27 of the Evidence Act. Even assuming that the authorship of concealment is inferred or implied from the above statement and circumstances established by evidence, that is of no consequence in the present case. It is only of academic interest.
38. The court below also placed considerable reliance on Ext.P20 Chemical analysis report, which showed that M.O.8 contains stains of human blood. But it is interesting to note that Ext.P9 mahazar, by which M.O. 8 was recovered, does not make mention of any trace of blood on M.O.8. P.W.25, the investigating officer, who effected the recovery was examined in court. He had no case that M.O.8 had traces of blood on it. In fact he says that none of the weapons said to have been recovered by him had traces of blood on them.
39. Of course one has not to forget the fact that the Doctor, P.W.19, who conducted autopsy over the body of the deceased, had opined that injury No.6, the fatal injury, could have been caused by a weapon like M.O.8. If one is to consider that the recovery falls short of requirement under Section 27 of the Indian Evidence Act and it becomes relevant under Section 8 of the Indian Evidence Act.
40. The result is that except for the thin evidence of recovery of M.O.8 falling under Section 8 of the Act, or even assuming there is the recovery based on confession statement of accused falling under Section 27 of the Indian Evidence Act, there is absolutely no other evidence to connect the accused to the crime. There is no corroborative evidence in this case at all.
41. One may say that at best the prosecution has been able to create a suspicion that the accused might have committed the act attributed to them. But the test is not "might have done"
but "must have done". There is a long distance to be traversed between "might" and "must". We are constrained to observe that there is absolutely no evidence at all to establish the culpability of the accused.
42. We are therefore unable to agree with the conviction and sentence passed by the court below.
These appeals are allowed, the conviction and sentence passed by the court below are set aside and we hold that the accused are not guilty of the offences alleged against them. They are acquitted of the offences punishable under Sections 143, 147, 148 and 326 read with Section 149 IPC and the third accused is acquitted of the offence punishable under Section 302 IPC also. Bail bonds of Accused Nos. 1, 2, 4 and 5 shall be cancelled and they shall be set at liberty forthwith. Accused No.3 shall be let off forthwith, if his detention is not necessary in any other case.
K. Balakrishnan Nair, Judge P. Bhavadasan, Judge sb.