IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 CRL.A.No. 75 of 2006(B) ----------------------- SC.69/2000 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT: ACCUSED --------------------- POULOSE @ SHAJI, S/O.KURIAN CHACKO, KUPPADITHARA, WAYANAD(NOW IN JAIL). BY ADV. SRI.PROMY KAPRAKKATT SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH RESPONDENT: COMPLAINANT -------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 6.11.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr.A.No.75 of 2006-A ------------------------------------------------------------------ Dated 6th November 2009 Judgment Balakrishnan Nair, J. The appellant was the accused in Sessions Case No.69 of 2000, on the file of the Court of Additional Sessions Judge (Ad hoc), Kalpetta. The trial court found the appellant guilty of the offence punishable under S.302 IPC and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.20,000/- (Rupees Twenty Thousand only) in default of which, he had to undergo simple imprisonment for three years. Aggrieved by the above conviction and sentence, the appellant has preferred this appeal. The prosecution case, in brief, is as follows : 2. The appellant is married to PW18 and they have two children. The appellant and the deceased Lalitha were working under PW8, a lady who owns extensive landed properties. The deceased was unmarried and she fell in love with the appellant. It appears, she wanted to marry him and live with him. Since the appellant was having a family, he was not willing to marry her. To get rid of Lalitha, the appellant took her to a forest on 25.05.1997 in the morning and CR.A.No.75 of 2006-A 2 murdered her by hitting on her head with MO48 stone. 3. The deadbody of Lalitha was found by PW1, an official of the Forest Department in a highly decomposed stage on 09.06.1997. PW2, the father of the deceased had lodged information before the police about the missing of his daughter and a crime was already registered for man-missing. On receipt of the information lodged by PW1, which was recorded as Ext.P1 F.I.statement, another crime was also registered. Later, PW2 and others identified that the body found by PW1 was that of Lalitha, who was missing since 25.05.1997. Thereupon, PW28, the Circle Inspector of Police took over the investigation. On the basis of suspicion, the appellant was detained and questioned. Thereupon, he confessed to his guilt and he was arrested on 13.06.1997. Based on the confession statement, MO48 stone was recovered from the scene of occurrence, pointed out by the appellant under Ext.P5 mahazar. From the scene of occurrence, various belongings of the deceased were already seized under appropriate mahazars. 4. PW28 completed substantial part of the investigation, like preparing the scene mahazar, sending the body for autopsy, questioning the witnesses etc. The inquest report was prepared by CR.A.No.75 of 2006-A 3 PW30, Sub Inspector of Police. Later, PW31 Circle Inspector of Police took over the investigation. On the arrest of the appellant, his sample finger prints were collected. One of them tallied with a finger print found on a nail polish bottle recovered from the scene of occurrence, which was produced at the time of trial as MO7. PW31 completed the investigation and laid the charge before the court. It was he, who obtained Ext.P20 FSL Report. 5. The learned Chief Judicial Magistrate, before whom the final report was laid, committed the case for trial by the Sessions Court, as the offence disclosed was exclusively triable by a Court of Sessions. The learned Sessions Judge made over the case to the Additional Sessions Judge (Ad hoc), Kalpetta. The appellant pleaded not guilty to the charge framed against him by the Trial Court. The prosecution, to prove its case, examined PWs 1 to 31, marked Ext.P1 to P20 and produced MOs.1 to 52. From the defence side, Ext.D1, the relevant portion of the statement of PW11, recorded under S.161, which was at variance with his statement before the court, was marked. The learned Additional Sessions Judge (Ad hoc), Kalpetta, after hearing both sides, found the appellant guilty of the offence and sentenced him to undergo the aforementioned punishment. Aggrieved by the conviction and sentence, the CR.A.No.75 of 2006-A 4 appellant has preferred this appeal. 6. According to the learned counsel for the appellant, there is absolutely no evidence on record to connect the appellant with the crime. The alleged intimacy between the appellant and the deceased, was not proved by any material evidence. Merely relying on hearsay, the said finding has been entered against him. The conviction is mainly made, relying on the evidence of PW5, P7 and PW11 and also the recovery made under S.27 of the Evidence Act. 7. PW5 is a businessman, who came to meet PW1 on 25.05.1997. He saw a man and a lady, walking together, towards the forest. The lady was wearing a red coloured nighty. So, according to him, it must be the appellant and the deceased, who were seen by him. He identified MO3 nighty, as the one worn by the lady. 8. PW7, the sister of the deceased, deposed that the appellant had given a wrist watch to the deceased. She also identified the articles belonging to her sister, which were recovered from the scene of occurrence. 9. PW11 is an auto-rickshaw driver, who took the appellant and the deceased in his auto-rickshaw in the morning on 25.05.1997 and dropped them at 8th Mile, which is a place near to the place of CR.A.No.75 of 2006-A 5 occurrence, where the deadbody of the deceased was found. 10. According to the appellant, the conviction based on the above materials, cannot be sustained. They are not even sufficient to raise any serious suspicion against him, it is pointed out. The learned Public Prosecutor, on the other hand, submitted that the nail polish bottle, found in the scene of occurrence contained the finger print of the appellant. MO48 stone recovered from the scene contained human blood. The evidence of PW7 would prove the intimacy between the appellant and the deceased. The evidence of PW5 and PW11 would prove the presence of both of them near the scene of occurrence, at the relevant time. Therefore, the conviction is fully supported by the materials on record, it is submitted. 11. We considered the rival submissions made at the Bar. We think, it is not necessary to refer to the deposition of all the witnesses examined in this case. We will confine to considering the evidence tendered by the relevant witnesses. Going by the evidence of PW25, who conducted autopsy and issued Ext.P13 postmortem certificate, the death of Lalitha was caused due to the head injury, found as Injury No.1 in Ext.P13. So, we are inclined to accept the above evidence and hold that the death of Lalitha was a homicide. 12. The next point to be considered is whether the appellant CR.A.No.75 of 2006-A 6 can be found guilty of the offence punishable under S.302 IPC, based on the circumstances proved in this case. Going by the principles governing conviction based on circumstantial evidence, the circumstances proved in this case cannot be described as unerringly pointing to the guilt of the appellant and it cannot be said that no proposition consistent with his innocence is possible. One of the items of evidence relied on by the court below is the finger print found on MO7 nail polish bottle. The case of the prosecution is that the appellant was in love with the deceased and he used to present various things to her. So, the possibility of the nail-polish bottle, being one presented by him, cannot be ruled out and the finger print could have been affixed on it at some earlier point of time. The second material relied on by the prosecution is MO48 stone, in which blood stains were found. The stone was found in the scene of occurrence. Therefore, there is nothing unusual, if human blood is found on the said stone. The recovery of stone, lying there at the scene of occurrence along with other stones, cannot be taken as an incriminating circumstance against the appellant. PW5 has stated that he found a lady and a man, walking towards the forest on the fateful day, while he was standing at a place near to the scene of occurrence. The lady was wearing a nighty, similar to MO3, which CR.A.No.75 of 2006-A 7 was recovered from the body of the deceased. PW11, the auto- rickshaw driver would depose that he dropped the appellant and the deceased at 8th Mile, which is one kilo-metre away from the scene of occurrence. The above circumstances, which are spoken by PW5 and PW11 may be sufficient to raise some suspicion against the appellant. But, we think, they are not sufficient to come to the conclusion that it was the appellant, who committed the crime. 13. In view of the above position, the conviction of the appellant cannot be sustained. He is entitled to get the benefit of doubt. Accordingly, the Criminal Appeal is allowed. The conviction and the sentence imposed on the appellant by the Court of Additional Sessions Judge (Ad hoc), Kalpetta, as per the Judgment dated 04.12.2004 in Sessions Case No.69 of 2000, are set aside. He shall be set at liberty forthwith, unless his detention is required in any other case. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta CR.A.No.75 of 2006-A 8