IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 CRL.A.No. 2321 of 2007(A) ------------------------- SC.168/2005 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA CP.26/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, DEVICOLAM .................... APPELLANT(S): -------------- GOPALAKRISHNAN @ MOTTAYANDY, S/O.RAMASWAMY, C.NO.795, CENTRAL PRISON, TRIVANDRUM. BY ADV. A.R.USHA(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR MR.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- Crl. Appeal No.2321 of 2007 ---------------------------------------------------- Dated this the 17th day of March, 2011 Judgment Balakrishnan, J. The appellant was convicted by the Additional Sessions Judge (Adhoc-1), Thodupuzha for offence punishable under Section 302 I.P.C. and was sentenced to undergo imprisonment for life and to pay Rs.10,000/- as fine and in default to rigorous imprisonment for one year. 2. The case of the prosecution is that deceased Georgekutty used to give information to the forest officials regarding theft of sandalwood from Marayoor and nearby places. The accused was stated to be involved in or assisting in the theft of sandalwood. The incident in this case took place on 29.5.2002 at 8.35 AM. Two or three days prior to this incident the forest officials had been in search of this accused and other persons who were alleged to have committed theft of sandalwood. Thinking that it was deceased Georgekutty who gave information pertaining to the theft of sandalwood, the accused entertained grudge against Crl.A.2321/2007 2 deceased Georgekutty. Deceased Georgekutty went to Kaimuttiyar river near Marayoor kara at about 8.30 AM for taking bath. After some time, seeing the deadbody of the deceased Georgekutty on the rock near the river, his father was informed. The neighbouring people also reached the spot. One of them went to the police station and lodged Ext.P1 first information statement based on which P.W.9, the S.I. of Police, Marayoor registered Ext.P7 FIR. The investigation was conducted by the Circle Inspector of Police and charge sheet was laid. When the charge was framed, the accused pleaded not guilty. 3. P.Ws.1 to 13 were examined and Exts.P1 to P11 were marked. M.O.1 vakkathi(chopper) and M.O.2 series and M.O.3 series were identified and marked. 4. The learned Sessions Judge, after evaluating the evidence found the accused guilty, convicted and sentenced as mentioned above. 5. This appeal has been preferred through the Superintendent of Central Prison, Trivandrum. Adv.A.R.Usha was appointed as State Brief for the appellant. We have heard the submissions of the learned Public Prosecutor and Smt.A.R.Usha. Crl.A.2321/2007 3 6. Points for consideration in this appeal are: 1. Whether the accused with intention to cause the death of deceased Georgekutty inflicted fatal injuries on him and caused his death? 2. Whether the conviction and sentence are unsustainable on any of the grounds urged by the appellant? Point Nos.1 and 2: The deadbody of Georgekutty was found on the rock near the river. The inquest report was prepared from that rocky area at about 3 PM on 29.5.2002. Ext.P2 is the copy of the inquest report. It was stated in Ext.P2 that severe injuries were seen on the neck and other parts of the body of Georgekutty. It was confirmed that Georgekutty had a homicidal death. 7. Ext.P8 is the postmortem certificate issued by P.W.10, the doctor who conducted postmortem on the body of the deceased Georgekutty. Five antemortem injuries were noted by him. Injuries 1 to 4 were incised wounds. The other injury was only an abrasion. M.O.1 was shown to him. It was stated by him that all the incised wounds could be caused by M.O.1. It was testified by him that the injury sustained to the neck, i.e., injury Crl.A.2321/2007 4 No.1 is sufficient in the ordinary course of nature to cause the death of the victim. Therefore, we hold that deceased Georgekutty had a homicidal death. We also hold that the fatal injuries mentioned earlier could have been caused by a chopper like M.O.1. 8. It is a case where there is no direct eye witness's account to connect the involvement of the accused. The prosecution relies upon circumstantial evidence. The prosecution would contend that deceased Georgekutty used to furnish information to the forest officials regarding theft of sandalwood. Accused was one of the persons who used to commit theft of sandalwood or assist the persons who indulge in such activities. It was also contended that two or three days prior to this incident, in connection with the same, the forest officials went there in search of the accused and other persons. Thinking that it was the deceased who furnished information to the forest officials, the accused had serious grudge against him. 9. It is submitted by the learned counsel for the accused that the prosecution has not examined the forest officials to prove that any crime or occurrence report was registered by the Crl.A.2321/2007 5 forest officials to show that the accused and his close associates were implicated in any such crime. It is seen that investigation was not conducted in that line. Even if it is assumed that the prosecution failed to prove the motive for the crime, if there is other acceptable evidence to connect the accused, that would be sufficient to fasten the criminal liability. 10. Ext.P1 was lodged by P.W.1 on getting information that deceased Georgekutty was lying on a rocky area near the river. There is evidence to show that deceased Georgekutty had gone to that place for taking bath. Tooth paste, soap, thorthu and other materials found at the place of occurrence would positively prove that he had gone to that place for taking bath. 11. P.W.3, the father of the deceased Georgekutty happened to reach the place of incident as he was informed by a boy that a deadbody was lying on the rocky area mentioned above. He saw his son dead after having sustained injuries on his neck and other parts of the body. It was stated by P.W.3 that the accused had animosity towards his son Georgekutty as he used to give information regarding theft of sandalwood. 12. The prosecution mainly relies upon the evidence of P.Ws Crl.A.2321/2007 6 4 and 5. P.W.5 is the son of P.W.4. P.W.5 has stated that at about 7.30-7.45 AM on the day of incident he had seen Georgekutty going to the river for taking bath. He has further stated that at about 8.30 AM when he (P.W.5) was returning, he saw the accused carrying a chopper in his hand. That evidence is supported by his father P.W.4 also. It was argued by the learned counsel for the accused that P.Ws.4 and 5 did not say what was the dress worn by the accused at that time nor did they say that the chopper which was carried by the accused was blood stained. Since the accused belongs to that place, according to the defence, there was nothing unusual in seeing the accused going along that way. But the prosecution contends that since the accused was seen almost at a time when deceased Georgekutty must have sustained fatal injuries, it is a circumstance in favour of the prosecution. Though P.W.6 was examined to say that the accused used to threaten deceased Georgekutty, he did not support the prosecution and hence he was cross-examined by the learned Public Prosecutor after seeking permission of the court. P.W.7 was a witness to Ext.P5 as per which M.O.1 chopper was recovered by the police based on the information stated tp jave Crl.A.2321/2007 7 been furnished by the accused. 13. P.W.12, the Circle Inspector of Police has stated that the accused was arrested on 24.8.2002 at 0.30 AM and that when he was questioned, he had given a statement to the effect that he had concealed the chopper on the top of the shed. Accordingly, P.W.12 went to that place along with the accused and the accused took out the chopper and handed over the same to the Circle Inspector in the presence of P.W.7. P.W.7 has stated that he had seen the police officer and the accused going to the shed behind his house and that M.O.1 chopper was recovered pursuant to the information given by the accused. The prosecution wanted to rely upon the seizure of M.O.1 as it was stated to have been done at the instance of the accused. Learned counsel for the accused would submit that admittedly M.O.1 did not contain blood stains. The recovery was effected about three months after the incident. According to the prosecution, the chopper must have been washed from the river when he was returning from the scene of occurrence. Be that as it may, the recovery was effected about 3 months after the incident and so it is quite natural, that it did not contain blood stains. Even if it is Crl.A.2321/2007 8 accepted that M.O.1 was taken out by the accused from a place pointed out by himself and also pursuant to the information stated to have been given by him to the investigating officer, it cannot help the prosecution to prove the complicity of the accused since admittedly M.O.1-chopper did not contain blood stains nor was M.O.1 identified by any witness as the weapon carried by the accused just prior to or immediately after the incident. The other circumstance which has been projected by the prosecution is the alleged abscondence of the accused for nearly three months after the incident. That may be a strong circumstance against the accused. But that alone will not be sufficient to form a strong link in the chain of circumstances when it is a case where the prosecution relies on the circumstantial evidence alone. 14. Though the prosecution wanted to contend that the abscondence of the accused for a period of about three months after the incident should be taken as a strong circumstance against the accused, it is seen that no question pertaining to the same was put to the accused when examined under 313 Cr.P.C. The learned counsel for the appellant would submit that had any Crl.A.2321/2007 9 question been put to the accused, he could have given reasonable explanation for his absence and as such the mere abscondence as alleged by the prosecution cannot be used as a circumstance against the accused. 15. It is seen that the investigating and prosecuting agency did not bother to collect as much evidence as possible to bring the accused to trial to secure conviction if they were sure that it was the accused who committed the murder. The investigating agency should bear in mind and should always ensure that even if some witnesses turn hostile, the remaining materials collected would be sufficient to have a successful prosecution. In this case, no such material was collected at all. The prosecution wanted to contend that the accused had animosity towards the deceased as the latter was alleged to have furnished information regarding the theft of sandalwood. Even to prove that aspect, no evidence worth convincing was adduced. The only other evidence collected was that two persons happened to see the accused going from one place to another; but not near the place of occurrence, but at a far away place. No sincere effort was seen to have been made to collect better evidence to prove the prosecution case. Crl.A.2321/2007 10 16. The upshot of the above discussion is that even if the motive alleged by the prosecution is probable and acceptable, there is no convincing evidence to prove that in all probability death was caused by the accused. The facts established by the prosecution 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. The circumstance should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. 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 probability the act must have been done by the accused. The prosecution could not prove all the circumstances to exclude the hypothesis of the innocence of the accused. As such the accused- appellant is entitled to get the benefit of reasonable doubt. Point is found against the prosecution. 17. In the result, this Criminal Appeal is allowed. The conviction and sentence passed against the appellant are set aside. The accused-appellant is acquitted of the offence charged Crl.A.2321/2007 11 against him. He shall be set at liberty. He shall be released from jail forthwith unless his detention is required in connection with any other case. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.2321/2007 12