IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 CRL.A.No. 761 of 2006(B) ------------------------ SC.445/2004 of ADDL.SESSIONS COURT, N.PARAVUR .................... APPELLANT: ACCUSED: ---------------------- SUBBARAJ, S/O. SUBBAYYA, CONVICT NO.5224, CENTRAL PRISON, VIYYUR. H.NO.188, MARIAMMA STREET, SEERPALKOTTA, KAMAKSHIPURAM, UTHAMAPALAYAM, THENI (T.N). BY ADV. PREETHA.C.G(STATE BRIEF) RESPONDENT: COMPLAINANT: ----------------------------------- STATE, REP.BY C.I. OF POLICE, ALUVA POLICE STATION -CR.554/02. PUBLIC PROSECUTOR SHRI NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- CRL.APPEAL No.761 OF 2006 ----------------------------------------------------- DATED THIS THE 15th DAY OF FEBRUARY, 2010 J U D G M E N T Basant, J. The appellant, a convict in custody, in this appeal assails the impugned verdict of guilty, conviction and sentence of imprisonment for life imposed on him under Section 302 IPC. The appeal is preferred through prison authorities. The appellant was not defended before the court below as also before this Court by a counsel of his choice. The assistance of a counsel on State Brief has been made available to the appellant. 2. We have heard the learned counsel for the appellant Ms.C.G.Preetha and Shri Noble Mathew, the learned Public Prosecutor. The prosecution case can be summarised as follows: 3. On 26.5.2002, PW1 found a decomposed human body from which foul smell emanated on the first floor of an incomplete building belonging to him on the western side of the road at the North Paravur traffic junction. He reported that fact to the police. Investigation commenced on the basis of that. According to the prosecution, about 3 to 5 days prior to that date, i.e., 22.5.2002, it was the accused who allegedly inflicted Crl.A.NO.761/06 -2- homicidal injuries on the deceased with MO1 stone at the scene of the crime on account of prior animosity. There was no witnesses to the occurrence. The prosecution relied on various circumstances. Final report was filed after completion of investigation by PW20. 4. The accused denied the offence alleged against him. Thereupon, the prosecution examined PWs 1 to 20. Exhibits P1 to P10 were proved. MOs 1 to 6 material objects were also marked. 5. The accused denied all circumstances which appeared in evidence against him. According to him, it was a totally false implication. He did not adduce any defence evidence. 6. The court below in these circumstances came to the conclusion that the prosecution has succeeded in establishing all the ingredients of the offence punishable under Section 302 IPC against the appellant. Accordingly, the court below proceeded to pass the impugned verdict of guilty, conviction and sentence. 7. Before us, arguments have been advanced. The learned counsel for the appellant assails the impugned verdict of guilty, conviction and sentence on the following grounds. Crl.A.NO.761/06 -3- 1) The court below ought to have held that no circumstances have been established satisfactorily by the prosecution against the appellant. (2) The court below ought to have found that the circumstances established even if accepted in toto, cannot lead to a safe inference/conclusion of guilt against the appellant. GROUNDS 8. The appellate judgment must be read in continuation of the judgment of the trial court. The court below has adverted to the oral evidence of PWs 1 to 20, Exhibits P1 to P10 and MOs 1 to 6 in detail in the impugned judgment. We have been taken through the evidence of PWs 1 to 20, and Exhibits P1 to P10 in detail. We do not in these circumstances think it necessary to re-narrate the oral and documentary evidence relied on by the prosecution. We have already noted that the stand of the accused is one of total denial. 9. It is unnecessary to advert to precedents relating to proof by circumstantial evidence. We need only remind Crl.A.NO.761/06 -4- ourselves that in a case where the prosecution depends on circumstantial evidence to prove the guilt of the accused, the burden is on the prosecution to establish all the circumstances by cogent and satisfactory evidence. The evidence of circumstances adduced must form strong links in themselves and together the links must constitute a strong and firm chain of circumstances. Such chain of circumstances, it is trite, must point unmistakably to the guilt of the accused. The chain of circumstances must exclude every reasonable hypothesis of innocence of the accused also. 10. Having so adverted to the nature of burden on the prosecution, we shall now straightaway advert to the circumstances relied on by the prosecution in this case. (i) Deceased was one Gopinathan, who has criminal antecedents. He had met with his death resulting from homicidal injuries on some date, three to five days prior to 27.5.2002 at the scene where his body was found on 26.5.2002. (ii) PW3 had heard the accused threatening one Muthuchami (not examined) at some unspecified Crl.A.NO.761/06 -5- earlier date that he would kill the said Muthuchami by hitting him (dropping) with a heavy stone. (iii) On some day in the 3rd week of May, 2002, PW19, admittedly a person with many criminal cases to his credit, had seen the accused and the deceased consuming toddy in a toddy shop in North Paravur at about 9 p.m. (iv) After they got out from the toddy shop, PW19 saw accused and the deceased quarrelling and at the end of the quarrel, they moved in different directions at about 10 p.m. on that date. (v) According to the prosecution, the said quarrel was the motive which the accused entertained against the deceased. The deceased had allegedly taken away money of the accused in the course of such quarrel. (vi) Later, on that night, at about 12 midnight, PW19 had seen the accused coming down from an incomplete two storied building at North Paravur Crl.A.NO.761/06 -6- junction. (vii) The accused had led the police to the scene of the crime, after his arrest. (viii) The accused had allegedly shown to the Investigating Officer the place from where MO1 stone was obtained by him. 11. It will not be inapposite straightaway to mention that some hairs were allegedly traced at the scene of the occurrence; but they on scientific examination did not tally with the specimen hair sample of the accused. 12. We shall now consider these circumstances – whether they have been established and whether what has been established points satisfactorily to the guilt of the accused. 13. That the deceased had met with homicidal death is seen established satisfactorily by the oral evidence of PW7 Doctor, who conducted the postmortem examination and issued Exhibit P3 postmortem certificate. Exhibit P2 inquest report which is attested by PWs 5 and 6 also suggests unmistakably that it was a case of homicidal death. Evidence of PWs 8 and 12 and Exhibits P4 and P4(a) suggest unmistakably that the finger prints Crl.A.NO.761/06 -7- of the deceased tallied with the finger prints of one Gopinathan, which were available with the police. Deceased Gopinathan had criminal antecedents also. In these circumstances, we come to the conclusion that circumstance No.(i) has been established adequately and sufficiently by the prosecution. 14. We now come to circumstance No.(ii). PW3 claims that he had seen the accused threatening one Muthuchami. Muthuchami has nothing to do with this case. The attempt of the prosecution is to suggest that Muthuchami was threatened to be killed in an identical manner in which the deceased in this case must have been killed. Therefrom, it is contended that this is a relevant circumstance against the appellant/accused herein. The evidence may not be irrelevant. But, no court can omit to take note of the fact that the circumstance is too feeble and has not been established satisfactorily to suggest or to reckon the same as a relevant link to connect the accused with the instant crime. Muthuchami has not been examined. The nature of the motive which the accused allegedly entertained against Muthuchami has not been established. It is of course true that the accused who was not defended by a counsel of his Crl.A.NO.761/06 -8- choice had not cross examined PW3 in any greater detail. That inadequacy notwithstanding we are not persuaded to agree that any crucial reliance can be placed on circumstance No.(ii) referred above. We alertly note that the method of harm of which Muthuchamy was allegedly threatened – of being hit with a stone – was not very peculiar or special or to perceive a link between the accused and the instant crime. 15. We now come to the 3rd circumstance. That on a non- specified day in the 3rd week of May, 2002, PW19 had seen the accused and the deceased at a toddy shop in North Paravur discussing some proposal regarding employment. Details of the conversation is not available. It is impossible from the materials available to identify and ascertain the precise date on which PW19 had seen the accused and the deceased. A day in the 3rd week of May, 2002 is the date suggested. May, 2002 starts on a Wednesday. If that is reckoned as the first week, the 3rd week starts with 12th Sunday and ends with 18th Saturday. If three weeks are counted from 1.5.2002, the 3rd week would start on 22.5.2002. We have absolutely no material to specifically identify the date of the crime. The decomposed dead body was Crl.A.NO.761/06 -9- found on 26.5.2002. The evidence of the Doctor who conducted the postmortem examination, i.e., PW7 and Exhibit P3 postmortem certificate suggest that death must have been taken place three to five days prior to 27.5.2002, the date on which the postmortem examination was conducted. What we intend to note at the first instance is that circumstance Nos.(iii) to (vi) while being appreciated, it has got to be noticed that the precise date on which these events took place or the death took place cannot be specifically ascertained. The evidence of PW19 alone is there to prove such presence of the accused and the deceased at the toddy shop. Less said about the antecedents of PW19, the better. The precise date on which PW19 is questioned is not revealed to the Court from the evidence of the Investigating Officers. A perusal of the case diary reveals that PW19 was questioned long after the date of the alleged crime, i.e., 22.5.2002 and long after the date of registration of Exhibit P1(a) FIR (i.e.26.5.2002) on 20.2.2003. PW19 is admittedly a person with criminal antecedents. We have also indications to suggest that when PW16 arrested the accused on 30.12.2002, a confession statement was allegedly made by the accused, Crl.A.NO.761/06 -10- whereupon the accused was implicated in several cases. The remand report dated 13.1.2004 suggests that he was implicated in as many as seven crimes after his arrest on 30.12.2002 by PW16. It is in these circumstances that PW19 comes out with the statement implicating the accused as late as on 20.2.2003. We must mention that the evidence of PW19 notwithstanding the absence of meticulous cross examination does not inspire us at all. The evidence of PW19 suggests that he was available when the police spotted the dead body – evidently on 26.5.2002. He had not come out with this version till 20.2.2003 and that is of course relevant in the totality of circumstances in this case. Further, the circumstance relied on is only that the accused and the deceased were found consuming toddy together in a toddy shop. No other witness is examined in support of this theory, except PW19, who by his own showing is a person involved in many other crimes. We entertain reservations on this circumstance. 16. The 4th circumstance relied on is also brought out through the word of the mouth of PW19. We have already expressed our reservation against the oral evidence of PW19. Crl.A.NO.761/06 -11- We have also referred to the absence of precise and cogent evidence to connect circumstances (iii) to (vi) with the precise date of death, whatever that date be. The evidence of PW19 about this 4th circumstance is only that after the accused and the deceased got out from the toddy shop, they were seen quarrelling . What is more important is that after the quarrel, going by the evidence of PW19, they were moving in different directions. The theory of last seen together as an incriminating circumstance has to be understood in the light of the evidence of PW19 that the accused and the deceased were seen moving in different directions after an incident of quarrel when they were last seen by PW19. 17. The next circumstance relied on by the prosecution is that the accused had a motive against the deceased. This motive evidently was not there when they together consumed toddy at the toddy shop. Some motive, according to the prosecution developed after they got out from the toddy shop. Evidence of this motive also comes out through the mouth of PW19, reservations against whose evidence, we have already expressed. We have no satisfactory evidence, though it is suggested now by Crl.A.NO.761/06 -12- PW19 that he had seen both of them quarrelling. The alleged motive according to PW19 is that the deceased snatched some money from the accused. It is thereafter that they allegedly went away in different directions. This circumstance also according to us is too insufficient and feeble to be reckoned as a crucial circumstance to suggest motive for the accused against the deceased. PW19, as stated earlier, had not parted with this information to the police until he was questioned long later on 20.2.2003. We need only mention that this circumstance which is attempted to be brought out through the mouth of PW19 is also not found by us to be convincing or inspiring. 18. As the 6th circumstance, the prosecution relies on the evidence of PW19 that the accused was found coming down from an incomplete two storied building at about 12 mid night. What appears to be crucial is that the Investigator or the Prosecutor or even the court had not taken pains to ascertain whether he was found coming down from the building where the dead body was found. Even on that crucial aspect, cogent linking evidence is not adduced. The evidence on this circumstance also came out belatedly from the mouth of PW19. We hold that this Crl.A.NO.761/06 -13- circumstance is also not established satisfactorily. 19. The 7th and 8th circumstances relied on by the prosecution are strange. The court below has not accepted the same. After his arrest, the accused is alleged to have led the police to the scene of the crime. That is the 7th circumstance. After his arrest, he is alleged to have led the police to the place where from he had taken MO1 stone -the alleged weapon of offence. If at all the prosecution wanted to rely on this, we would have expected evidence from the Investigating Officers about such conduct on the part of the accused. Quite interestingly, PWs 11, 16, 17, 18 and 20 who are the police officials connected with the investigation of this crime, did not tender evidence of any such conduct on the part of the accused. Moreover, as rightly noted by the court below, the place of the occurrence and the place where the weapon had been found were already known to the Investigating Officer with the registration of Exhibit P1(a) FIR and the preparation of Exhibit P2 inquest report as early as on 26.5.2002 and 27.5.2002. In these circumstances, the alleged conduct of the accused leading the police to the scene of the crime from where MO1 stone was Crl.A.NO.761/06 -14- found, loses all its significance and relevance. Circumstances (vii) and (viii) have also not thus been established satisfactorily. 20. We have already discussed the eight circumstances which are relied on by the prosecution. We take note of the fact that the hair strands found at the scene of the crime are not proved to be identical or similar with that of the accused. The accused was arrested on 30.12.2002 by PW16 in another crime. We do not find any evidence of the Investigating Officers in this crime of having taken any prompt action after such arrest was made and indications were gathered that the accused was connected with this crime also. Even though Exhibit P6 shows that the accused was obtained in police custody, the precise date on which such custody was obtained is not revealed from any of the records. We went through the remand report and the remand report dated 13.1.2004 suggests that the accused was in judicial custody (as remanded in some other crime) was obtained custody on the basis of a production warrant and he was remanded in this case from 13.1.2004 to 27.1.2004. 21. We have adverted to all the relevant circumstances in this case. We are not persuaded to agree that the case of the Crl.A.NO.761/06 -15- prosecution has been established satisfactorily by cogent and acceptable evidence. The court below was obviously wrong in concluding that the crime alleged against the accused has been proved satisfactorily. We have absolutely no hesitation in conceding to the accused the benefit of doubt which is aroused in our mind on the basis of the totality of circumstances available in this case. 22. The crime may be foul; but unless satisfactory evidence to drive home the guilt of the accused is made available, the golden thread that runs through the entire fabric of the criminal justice delivery system in this country - the insistence that the accused must be deemed to be innocent till the guilt is proved with reasonable certainty, cannot lead to a verdict of guilty, conviction and sentence of an accused in a criminal indictment. We are satisfied that the appellant/accused is certainly entitled to the benefit of doubt. 23. In the result: (a) this appeal is allowed in part. (b) the impugned verdict of guilty, conviction and sentence imposed on the appellant under Section 302 IPC are set aside. Crl.A.NO.761/06 -16- (c) The accused is found entitled to the benefit of doubt. He is consequently found not guilty and acquitted. (d) If the detention of the accused is not necessary in connection with any other crime, he shall forthwith be released from custody by the prison authorities. (e) The Registry shall forthwith communicate this judgment to the court below and the prison authorities. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn Crl.A.NO.761/06 -17- R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- CRL.APPEAL No.761 OF 2006 ----------------------------------------------------- DATED THIS THE 15th DAY OF FEBRUARY, 2010 GIST OF THE JUDGMENT Basant, J. xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx In the result: (a) this appeal is allowed in part. (b) the impugned verdict of guilty, conviction and sentence imposed on the appellant under Section 302 IPC are set aside. (c) The accused is found entitled to the benefit of doubt. He is consequently found not guilty and acquitted. (d) If the detention of the accused is not necessary in connection with any other crime, he shall forthwith be released from custody by the prison authorities. (e) The Registry shall forthwith communicate this judgment to the court below and the prison authorities. Crl.A.NO.761/06 -18- R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn