IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 CRL.A.No. 941 of 2005() ----------------------- SC.335/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD .................... APPELLANT(S): ACCUSED 1, 2 ,4 AND 5: -------------------------------------------------------- 1. C.M.ABOOBACKER, S/O.ARABI, MIYANATH VEEDU, MUNDA MANI, KALLAR VILLAGE. 2. P.NARAYANAN, S/O.KUNHIRAMAN, PERUVADAN VEEDU, ATTENGANAM,BELURE VILLAGE. 3. K.A.KARUNAKARAN, S/O.NARAYANAN, VELLACHAL VEEDU, ATTENGANAM, BELURE VILLAGE. 4. T.BALAN, S/O.ACHU, CHENDALAM, ATTENGANAM. BY ADV. SRI.SOJAN MICHEAL SRI.SOJAN MICHEAL RESPONDENT(S): COMPLAINANT. ---------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2009, ALONG WITH CRA NO.1391 OF 2005 , THE COURT ON 25/09/2009 DELIVERED THE FOLLOWING: 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 Crl.A. 941 & 1391/2005. 2 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 Crl.A. 941 & 1391/2005. 3 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 Crl.A. 941 & 1391/2005. 4 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 Crl.A. 941 & 1391/2005. 5 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 Crl.A. 941 & 1391/2005. 6 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 Crl.A. 941 & 1391/2005. 7 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. Crl.A. 941 & 1391/2005. 8 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 Crl.A. 941 & 1391/2005. 9 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 Crl.A. 941 & 1391/2005. 10 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. Crl.A. 941 & 1391/2005. 11 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 Crl.A. 941 & 1391/2005. 12 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 Crl.A. 941 & 1391/2005. 13 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. Crl.A. 941 & 1391/2005. 14 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. Crl.A. 941 & 1391/2005. 15 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. Crl.A. 941 & 1391/2005. 16 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 Crl.A. 941 & 1391/2005. 17 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 Crl.A. 941 & 1391/2005. 18 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 Crl.A. 941 & 1391/2005. 19 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 Crl.A. 941 & 1391/2005. 20 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 Crl.A. 941 & 1391/2005. 21 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....” Crl.A. 941 & 1391/2005. 22 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