IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 CRL.A.No. 1724 of 2007(A) ------------------------- SC.277/2003 of ADDL.SESSIONS COURT, PARAVUR CP.153/2002 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... APPELLANT(S): ACCUSED NO.1 & 2: ------------------------------- 1. MANOJ, S/O. KUTTAPPAN, AGED 27 YEARS, PAREKUDY HOUSE, KODANAD KARA, KODANAD VILLAGE. 2. VINU, S/O. KUTTAPPAN, AGED 40 YEARS, KUTTIKKATTIL HOUSE, PADINJAREKADUNGALLOOR KARA, ALANGAD VILLAGE. BY ADV. LEAN JOSE.P(STATE BRIEF) SRI.RAJIT RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- Crl. Appeal No. 1724 of 2007 ------------------------------------------------- Dated this the 28th day of November, 2011 JUDGMENT Basant,J. Is the onerous burden on the prosecution to prove the guilt of the accused by relying on circumstantial evidence discharged by the prosecution satisfactorily? Did the learned Sessions Judge err in holding the first accused/appellant to be vicariously liable for the crime allegedly committed by the 2nd accused personally? These questions are raised with vehemence by Advocate Sri. Rajit in this appeal on behalf of the appellants. 2. This appeal is preferred by accused 1 and 2 who faced indictment before the court below for the offence of murder punishable under Sec.302 IPC. Altogether there were three accused persons. Accused No.3 was found not guilty and acquitted. Appellant/accused No.2 was found guilty, convicted and sentenced for the offence punishable under Sec.302 IPC. Appellant/accused No.1 was found vicariously liable and was found guilty, convicted and sentenced under Sec.302 read with Sec.109 and/or Sec.34 IPC. 3. The prosecution alleged that the accused No.1 has bitter Crl. Appeal No. 1724 of 2007 -: 2 :- animosity against the deceased, a person aged about 36 years. The 1st accused was a 'sishya' (apprentice) of the deceased. They were both toddy tappers. Accused/appellant No.2 is a friend of the 1st accused. The 3rd accused (who was acquitted) is said to be a relative of the 1st accused. 4. According to the prosecution, on account of the animosity which the 1st accused entertained against the deceased, he along with the other two accused, in furtherance of their common intention, had done away with the deceased. Accused No.2 allegedly inflicted a stab injury on the deceased in furtherance of their common intention. The deceased succumbed to the injuries. The prosecution alleged that accused No.2 is principally liable for the offence under Sec.302 IPC, whereas accused Nos.1 and 3 are vicariously liable for the said offence under Sec.302 IPC. 5. The crime was registered on the basis of Ext.P1 First Information Statement lodged by P.W.1, an employee of the toddy shop in front of which the deceased fell with injuries. Investigation commenced on the basis of Ext.P1(a) F.I.R. registered on the basis of Ext.P1 First Information Statement. Investigation was completed and final report was lodged by Crl. Appeal No. 1724 of 2007 -: 3 :- P.W.22, the Investigating Officer, before the learned Magistrate. The learned Magistrate committed the case to the Court of Session observing all legal formalities. The learned Sessions Judge took cognizance of the offences alleged against the accused. Charges were framed against the accused. They pleaded not guilty to the charges levelled against them. 6. Thereupon, the prosecution examined P.Ws.1 to 22 and proved Exts.P1 to P21. M.Os. 1 to 13 were also marked by the prosecution. 7. The accused denied all circumstances which were put to them. According to them, they were not in any way connected with the crime and were absolutely innocent. No defence evidence was adduced by the accused. 8. The learned Sessions Judge on an anxious evaluation of all the relevant inputs came to the conclusion that the prosecution has succeeded in proving the offence under Sec.302 IPC alleged against the second accused/appellant. Third accused was found not guilty and acquitted. The first accused was found to be vicariously liable for the crime committed by the 2nd accused. He was accordingly found guilty, convicted and Crl. Appeal No. 1724 of 2007 -: 4 :- sentenced under Sec.302 read with Sec.109 and/or 34 IPC. 9. The case rests entirely on circumstantial evidence. We must, at the outset, observe that an appellate judgment is and ought to be read in continuation of the judgment by the trial court. It is unnecessary for this Court to re-narrate the oral and documentary evidence relied on by the prosecution. Suffice it to say that the oral evidence of P.Ws.1 to 22 and Exts.P1 to P21 have been read to us in detail and threadbare. We have also been taken through the other materials available in this case including the charge framed by the court against the accused as also under Sec.313 Cr.P.C. Wherever necessary we shall specifically advert to the relevant, oral and documentary evidence. 10. As stated earlier, the case rests entirely on circumstantial evidence. The prosecution relies on the following circumstances to drive home the guilt of the accused: (1) Homicidal death of the deceased. (2) The motive entertained by the 1st accused against the deceased. (3) The oral evidence of P.W.12 about the conduct of Crl. Appeal No. 1724 of 2007 -: 5 :- accused Nos.1 to 3 prior to the occurrence. (4) Recovery of M.O.1 the alleged weapon of offence on the basis of information furnished by the 2nd accused to the police while in custody. (5) The unexplained presence of blood stains on the clothes of the 2nd accused. 11. While the prosecution contends that these circumstances have been established satisfactorily by the prosecution and that these circumstances clinchingly and unerringly point to the guilt of the appellants/accused, the learned counsel for the appellants contends that these circumstances have not been established satisfactorily. It is further contended that even if the circumstances are held to be established, they do not convincingly point to the complicity of the appellants herein. 12. We deem it unnecessary to advert to various precedents having a bearing on the question of the burden on the prosecution and the accused in a case resting of circumstantial evidence. The position of law is too well settled to justify or warrant reference to any specific precedents. We may attempt to reiterate and state the law thus. Crl. Appeal No. 1724 of 2007 -: 6 :- 13. The burden is always on the prosecution to prove its case satisfactorily before the court. That burden rests squarely on the shoulders of the prosecution, whatever be the nature of the evidence relied on by the prosecution and whatever be the nature of the defence which the accused takes up in the trial. In a case of circumstantial evidence, the various circumstances must be established satisfactorily. Those circumstances must constitute strong links in a chain of circumstances which point convincingly and unerringly to the guilt of the accused - to the exclusion of every reasonable hypothesis of innocence of the accused. We may hasten to observe that it is not the number of the links or the length of the chain that matters, the crucial significance is to be attached to the probative value of the circumstances - as to whether the circumstances proved can point to the guilt of the accused without any doubt. 14. We shall initially try to examine whether the circumstances relied on have been proved satisfactorily, as held by the learned Sessions Judge. We shall later proceed to consider whether the circumstances established do satisfactorily prove the guilt of the accused to the exclusion of every possible Crl. Appeal No. 1724 of 2007 -: 7 :- reasonable theory of innocence of the accused. 15. Circumstance No.(1): That the deceased died of homicidal injuries is not disputed. The evidence of P.W.1 confirms this. The evidence of the doctor P.W.20 and Ext.P15 post-mortem certificate issued by him confirm that the deceased succumbed to homicidal injuries suffered by him. This circumstance is clearly established. There is no dispute raised also. 16. Circumstance No.(2): It is the case of the prosecution that the 2nd accused is the friend of the 1st accused. The prosecution has no case that the 2nd accused has any motive against the deceased. But it is the case of the prosecution that the 1st accused did entertain a bitter animosity against the deceased. So far as the 2nd accused is concerned it is only reflected animosity/motive against the deceased. He being a close friend of the 1st accused, the animus of the 1st accused is reflected through him also. That is the contention of the prosecution. 17. Now coming to the specific motive. It is the case of the prosecution that the deceased was the 'guru' (Asan) of the 1st Crl. Appeal No. 1724 of 2007 -: 8 :- accused. The deceased was a toddy tapper and the 1st accused was an apprentice (sishya) under the deceased. We find no serious dispute on this aspect of the matter. 18. According to the prosecution, the 1st accused was in need of money. He was not able to raise it. Money was required by him for construction of a residential building. He wanted a loan to be availed. He wanted to avail the loan from P.W.7 a professional money lender, by all indications. A1 had no direct access to P.W.7. He approached P.W.7 through the deceased. The deceased introduced the 1st accused to P.W.7. P.W.7 by his money lender instincts was not willing to advance the loan to the 1st accused directly. The media of the deceased was chosen by P.W.7. Amount was advanced - a sum of `10,000/-. P.W.7 paid that money to the 1st accused; but on paper it was a transaction between the deceased and P.W.7. It is the case of the prosecution - supported by the evidence of P.W.7, that a cheque as well as a blank signed paper was obtained by P.W.7 from the deceased to ensure repayment of the amount. 19. As it usually happens, the 1st accused was not in a position to pay the amount. P.W.7 turned against the deceased Crl. Appeal No. 1724 of 2007 -: 9 :- and wanted him to make the payment. The deceased was obliged to make certain payments to keep P.W.7 satisfied. The deceased wanted A1 to make the payment. A1 did not. Deceased along with P.W.7 allegedly went to the house of the deceased on one day. The mother of A1 attempted to save his son by stating that the son was not available. The truth was revealed and there was a wordy and physical altercation between the deceased on the one hand and the 1st accused on the other. In the course of that incident, A1 as well as his mother were insulted, intimidated and threatened by the deceased according to the prosecution. A1 was assaulted also by the deceased. This alleged incident took place about a month prior to the date of the occurrence in this case i.e., 3/6/2000. It is the case of the prosecution that the mother of accused had met P.W.8, the second wife (woman with whom the deceased was living). She had stated that such threats cannot be permitted to recur. That communication, according to the prosecution, was a few days prior to the date of the incident in this case. The prosecution relied on the evidence of P.W.7 as also the evidence of P.Ws.8 and 9, the second and the first wives of the deceased Crl. Appeal No. 1724 of 2007 -: 10 :- respectively. 20. The court below accepted the evidence of P.Ws.7, 8 and 9 on this aspect. Ext.P13 seizure mahazar attested by P.W.18 was also relied on by the prosecution in support of this theory. Under that seizure mahazar the cheque and the blank signed paper given by the deceased to P.W.7 were seized by the police. Those documents are not marked as Exhibits. The explanation is that those documents have been returned to P.W.7 in the course of investigation/trial. 21. It is contended that the evidence of P.Ws.7, 8 and 9 cannot be accepted. We find absolutely no reason why the oral evidence of P.Ws.7, 8 and 9 which is broadly supported by Ext.P13 cannot be accepted in the facts and circumstances of this case. We are of the opinion that the learned Sessions Judge has committed no error in accepting and acting upon the evidence relied on by the prosecution to suggest that there was animosity for the 1st accused directed against the deceased. 22. This motive is inadequate. It is a strange motive. The alleged incident had taken place about a month prior to the date of occurrence and, in these circumstances, this alleged motive is Crl. Appeal No. 1724 of 2007 -: 11 :- too slender and unacceptable a piece of evidence to justify the alleged fatal assault on the deceased, contends the learned counsel for the appellants Sri. Rajit. Adequacy of motive, it has often been repeated, is too unsatisfactory a test in a criminal case while appreciating the evidence. Even God cannot fathom the depths of a human mind to decide which motive in what circumstances is sufficient to prompt and trigger action on the part of a human being. Therefore, we do not intend to embark on a detailed discussion as to whether motive was sufficient or not to justify the alleged conduct on the part of the appellants. Suffice it to say that the prosecution has succeeded in proving that there was a motive which soured the relationship between the deceased and the 1st accused. We do also note that the A2 is a friend of A1 and A3 (acquitted accused) is a relative of A1. Circumstance No. (2) is thus satisfactorily established. 23. Circumstance No.(3): The prosecution relies on the oral evidence of P.W.12. Before delving deeper into the evidence of P.W.12 it deserves to be noted that the incident had taken place on 3/6/2000. As the First Information Statement - Ext.P1 reveals, there was no clue for the police as to who could have Crl. Appeal No. 1724 of 2007 -: 12 :- committed this offence. This led the police to delve deep into the question whether any person had any motive against the deceased. It is in that context P.Ws.7 to 9 were questioned by the police. According to the police, they came to know that A1 was having some animosity against the deceased. This led to the questioning of A1 and his eventual arrest on 13/6/00. According to the prosecution, the Investigator worked on the clues obtained after the interrogation of A1. A2 was arrested on 13/6/00 itself and the police came to know that all the three accused had travelled on the afternoon of that day (3/6/00) in an autorikshaw. Attempt was made thereafter to trace the said autorikshaw and its driver. The police came to know that the autorikshaw in which the accused persons travelled on that day belonged to P.W.10 and the same on the date of occurrence was driven by P.W.12. It is thus that P.W.12 was traced and he was questioned by the police on 20/6/2000. His statement was recorded on that date. The police to be on surer and safer grounds, got his 164 statement recorded by the Magistrate on 10/7/00. A Test Identification Parade was also conducted on 10/7/00. P.W.19 is the learned Magistrate who recorded the 164 statement of Crl. Appeal No. 1724 of 2007 -: 13 :- P.W.12 and conducted the Test Identification Parade (TIP), the proceedings in which is marked as Ext.P14. It was thus, according to the prosecution, that P.W.12 was traced on 20/6/00 by the police and questioned by the police. 24. We now come to the version of P.W.12. According to P.W.12, on 3/6/00 at about 5 p.m. A1 had requisitioned his services as autorikshaw driver. He had got in to the autorikshaw. He travelled alone in the autorikshaw for some distance. A2 and A3 were available at an other spot. They were asked to get into the autorikshaw by A1. All three of them went on what appeared to P.W.12 to be a mission. They were attempting to trace and locate an individual. They came to the toddy shop where the deceased was employed as a toddy tapper at first. A1 remained in the autorikshaw. A2 and A3 went out to see if the person who they were searching for was available in the toddy shop. They returned to say that he was not available. They went in search of that person. They went to a couple of places including certain bars - Indian Made Foreign Liquor outlets. In those IMFL outlets initially they could not trace the person who they were searching for; but when they reached an outlet by name 'Jayaraj Bar', they Crl. Appeal No. 1724 of 2007 -: 14 :- found that a motor-cycle (Hero Splender) was parked there. They identified that motor-cycle to be the one belonging to the person who they were searching. That person came out of the Jayaraj Bar. He drove away in his motor-cycle. P.W.12 was asked by the accused to follow him/chase him. P.W.12 attempted to do the same. The two wheeler proved to be too good for the chase. Some where in between, P.W.12 lost track of the motor-cycle. The accused wanted P.W.12 to proceed to the toddy shop where the deceased was employed. Near the toddy shop the motor- cycle was located. The autorikshaw was stopped. A2 and A3 went out of the autorikshaw. A1 instructed P.W.12 to take the autorikshaw forward. It was parked in a by-road - evidently to avoid notice. After sometime, A1 wanted P.W.12 to return. P.W.12 was instructed to permit A2 and A3 to get into the autorikshaw if they were found on the way. P.W.12 and A1 returned. They could not see A2 and A3. As they were driving back, they found a collection of people near the toddy shop. The autorikshaw was driven back to Perumbavoor from where it was initially hired. Fare was paid and P.W.12 was disposed of by A1. 25. It is the case of the prosecution that it was the deceased Crl. Appeal No. 1724 of 2007 -: 15 :- who travelled in that motor-cycle on that evening. P.W.12 did not, of course, identify the deceased. In fact, P.W.12 was traced only on 20/6/00 and by then the deceased who expired on 3/6/00 must already have been cremated. Be that as it may, no attempt to identify the rider of the motor-cycle which P.W.12 and the accused chased by reference to the clothes worn by the deceased or by an attempt to identify the deceased with the help of any photograph is not seen undertaken by the prosecution. Be that as it may, the safe input available is that the motor-cycle belonged to the deceased. That it was seen at Jayaraj Bar from where the person chased come out and proceeded on the bike. P.W.12's autorikshaw with A1 to A3 in it chased the said motor- cycle rider. They lost track. Eventually, as they expected or anticipated, the motor-cycle was found near the toddy shop where the deceased was employed. The deceased was later found dead nearby. 26. The prosecution heavily relies on this circumstance. The learned counsel for the appellant submits that P.W.12 does not deserve to be believed. He was not traced on 3/6/00. He was not traced till 20/6/00. He is a witness manufactured by the Crl. Appeal No. 1724 of 2007 -: 16 :- Investigating Officer to subscribe to a version convenient to the prosecution, argues the learned counsel. His evidence does not inspire confidence and the same ought to be rejected, contends counsel. 27. We have with great care gone through the evidence of P.W.12. We note that P.W.12 was examined on 20/6/00 by the police and his statement under Sec.161 Cr.P.C. was recorded on that day. Later his sworn statement was recorded under Sec.164 Cr.P.C. on 10/7/00 by P.W.19, the learned Magistrate. Intrinsically and inherently there is no reason for any court to approach the evidence of P.W.12 with any amount of doubt, suspicion or distrust. His evidence sounds very natural to us. The learned Sessions Judge before whom his evidence was recorded has chosen to accept and act upon the oral evidence of P.W.12. It is significant that no contradiction worth the salt is seen marked during the cross-examination of P.W.12 with respect to his first statement before the police on 20/6/00 or his later statement under Sec.164 Cr.P.C. before P.W.19. There is not even the semblance of suggestion that P.W.12 is not worthy of credit. Except that he is an autorikshaw driver and autoriskhaw drivers Crl. Appeal No. 1724 of 2007 -: 17 :- can be put to harassment by a reckless police force, there is nothing to indicate that P.W.12 has any interest in favour of the police (or the deceased) or any interest against the accused. P.W.12 tenders evidence on oath and the truth discovery process under the Anglo Saxon system of jurisprudence has its foundations on the solemnity of oath. Generally and broadly, on probabilities and intrinsically on the worth of evidence tendered by P.W.12, we find no reason to approach the evidence of P.W.12 with any amount of dissatisfaction or doubt. 28. It is true that P.W.12 was located ultimately by the police only on 20/6/00 i.e., 17 days after the date of the incident and 7 days after the arrest of A1. This delay must generate suspicion, contends the learned counsel. The learned counsel further builds up an argument that inasmuch as the police, in the course of interrogation, had admittedly not attempted to ascertain from P.W.12, the broad features of the rider of the motor-cycle as also the passengers in his autorikshaw on the fatal day the evidence of P.W.12 deserves to be approached with suspicion and reservation. We have considered this. This significantly is not a case where a witness is located and the Crl. Appeal No. 1724 of 2007 -: 18 :- identify of the accused is sought to be ascertained from the description of the accused by the witness. This admittedly is a case where on the basis of suspicion revealed to the police the 1st accused was arrested and questioned and it is on his interrogation that the police get the information that all the three accused had travelled in an autorikshaw to chase the deceased. Some time taken by the police to ascertain the version of the accused who was arrested only on 13/6/00 and thereafter to ascertain the identity of P.W.12 is, in the facts and circumstances of this case, very probable and reasonable. Those gaps of time between 3/6/00 and 13/6/00 (date of the incident to the date of arrest of A1 and A2) and 13/6/00 to 20/6/00 (date of the arrest of A1 and A2 to the date of questioning of P.W.12) do not at all create any reasonable doubt in our mind about the acceptability of the evidence of P.W.12. 29. The learned counsel argues that better assurance of the oral evidence of P.W.12 could have been made available to the court by the prosecution. No one at the Jayaraj Bar where the vehicle of the deceased was initially located is examined by the prosecution. That is where the deceased was last seen alive Crl. Appeal No. 1724 of 2007 -: 19 :- before he allegedly started riding his motor-cycle to the venue of the crime. Some one ought to have been questioned to confirm that the one who travelled in the motor-cycle was the deceased himself, argues the learned counsel for the appellants. We find merit in the contention of the learned counsel for the appellants. The Investigator/the prosecution could have done better. But criminal trial cannot merely be an endeavour to test the level of perfection achieved by the Investigator or