IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 CRL.A.No. 180 of 2007() --------------------------- SC.161/2006 of ADDL.SESSIONS COURT (ADHOC-1), KOTTAYAM .............................................. APPELLANT(S): ACCUSED 1 TO 4. ------------------------------------ 1. JOSEPH @ JAMES, S/O.THOMAS, KARIMPANAMATTATHIL VEEDU, MANARCADU VILLAGE, THIRUVANCHOOR, KOTTAYAM. 2. VINAYACHANDRAN @ VINAYAN, S/O.PRABHAKARAN, ALAKKATTU VEEDU, VIJAYAPURAM VILLAGE. 3. LAZAR, S/O.THOMAS, KARIMPANAMATTOM VEEDU, MUTTAMBALAM VILLAGE. 4. JOBY SEBASTIAN, S/O.SEBASTIAN, PULIMOOTTIL HOUSE, MANDIRAM LAKSHAM VEEDU COLONY, MANGANAM KARA, (PULICKATHOTTIL HOUSE, MUTTAMBALAM VILLAGE). BY ADV. SRI.V.K.SUNIL FOR A1 TO A3 ADV. SMT.SANGEETHA LAKSHMANA FOR A4 RESPONDENT(S): COMPLAINANT. ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q.Barkath Ali JJ. = = = = = = = = = = = = = Crl.Appeal No.180 of 2007 = = = = = = = = = = = = = = Dated this the 4 th day of July, 2011 Judgment In this appeal filed under Sec.374(2) Cr.P.C. the appellants who were accused Nos.1 to 4 in S.C.No.161/2006 on the file of the Addl. Sessions Court(Adhoc-I), Kottayam for offences punishable under Sections 120(B), 323 and 302 read with 34 IPC challenges the conviction entered and the sentence passed against them for offences punishable under Sections 302 read with 120(B)I.PC. 2. The case of the prosecution can be summarised as follows: The 1st accused was on inimical terms with deceased Harish. On account of the enmity of A1 towards the deceased, at about 10.30 am on 13.10.2003, in front of Shop No.X11/353 of Kottayam Municipality situated on the northern side of Kanjikuzhi market in Muttambalam village of Kottayam district, pursuant to the criminal conspiracy hatched by A1 to A4 to murder Harish, A1 took out MO1 chisel from the footwear shop of PW3 and proceeded towards the deceased. A1,A2 and A4 beat and fisted the deceased and PW2 with Crl. Appeal No.180 of 2007 2 their bare hands. A4 stabbed on the leg of PW2. While so, A1 stabbed the deceased, Harish twice on the right side of his chest with MO1 chisel. Harish who was fatally injured was rushed to the District Hospital, Kottayam from where he succumbed to the lethal injuries at about 11.15 am on 13.10.2003. The four accused persons who committed the aforesaid acts in furtherance of their common intention have thereby committed offences punishable under Sections 120(B),323 and 302 read with 34 IPC 3. A1 to A3 pleaded not guilty to the charge framed against them by the court below for the aforementioned offences on 08.9.2006. A4 who was subsequently arrested also pleaded not guilty to the charge framed against him for the aforementioned offences. The case was thereafter posted for prosecution evidence. 4. The prosecution altogether examined 21 witnesses as P.Ws 1 to 21 and got marked 21 documents as Exts. P1 to P21 and 7 material objects as MOs.1 to 7. 5. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with Crl. Appeal No.180 of 2007 3 regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. 6. Since this was not a case of no evidence within the meaning of Section 232 Cr.P.C, the trial Judge did not record an order of acquittal under Section 232 Cr.P.C. The accused were therefore called upon to enter on their defence. Except getting marked Exts.D1 to D3 case diary contradictions of Pws.4 and 7 the accused did not adduce any defence evidence. 7. The Addl. Sessions Judge, after trial, as per judgment dated 30.11.2006 found A1 to A4 guilty of the offences punishable under Sections 302 read with 120(B) I.P.C. A1 to A4 were, however, found not guilty of the offence punishable under Section 323 IPC. For the conviction under Section 302 IPC, A1 was sentenced to simple imprisonment for life and to pay a fine of `1000/- Crl. Appeal No.180 of 2007 4 (Rupees one thousand only) and on default to pay the fine to suffer rigorous imprisonment for one year. For the conviction under Section 302 read with 120(B) IPC, A1 to A4 were sentenced to imprisonment for life and to pay a fine of `1000/-(Rupees one thousand only) and on default to pay the fine to suffer rigorous imprisonment for one year each. The substantive sentences of imprisonment for life were directed to run concurrently. It is the above judgment which is assailed in this appeal by A1 to A4. 8. We heard the learned counsel appearing for the appellants and the learned Public Prosecutor. We also perused the oral and documentary evidence in the case. 9. After a careful evaluation of the oral and documentary evidence in the case, we are of the view that the conviction entered and the sentence passed against the appellants cannot be sustained. PW1 (Biju Mathew) is a fish vendor in Kanjikuzhi market. He lodged the First Information Report. He is not an occurrence witness. Crl. Appeal No.180 of 2007 5 PWs.2,3,4 and 6 are the persons examined as occurrence witnesses. All of them turned hostile to the prosecution and did not support the occurrence at all. PW5 is an auto driver who allegedly took the accused persons after the occurrence. He also turned disloyal to the prosecution. PWs.7 to 9 are the witnesses examined to prove the previous enmity between A1 and the deceased. They also did not support the prosecution. PWs.10 and 11 are the persons who allegedly took the deceased to the District Hospital, Kottayam. PW12 (Ajith Kumar) is the Scientific Assistant in the District Mobile Laboratory, Kottayam. He had collected particles from both palms of the deceased using cellophane tape. He had also collected a control sample of blood on cotton gauze from the cement slab. PWs. 13 and 14 are the witnesses to the recovery of MO1- chisel allegedly on the strength of Ext.P9(a) confession statement given by A1 to the Investigating Officer. Both these witnesses turned unfriendly to the prosecution. PW15 Crl. Appeal No.180 of 2007 6 (Dr.Mathukutty) is the Assistant Surgeon in the District Hospital, Kottayam. He proved Ext.P10 Wound Certificate pertaining to the deceased, who, according to him, was brought to hospital by an unknown auto driver, at about 11 am on 13.10.2003 and the deceased was conscious and gasping and died 15 minutes after he was brought to the Hospital. PW16 Dr.V.M.Rajeev, who was Senior Lecturer and Assistant Police Surgeon, who conducted autopsy over the dead body of Harish. He issued Ext.P11 postmortem certificate, as per which the deceased died due to the penetrating injury sustained by him to the chest and abdomen. PW17 (P.Jameela) is the Assistant Director (Serology) of Forensic Science Laboratory. She proved Ext.P12 report as per which blood was detected on MO1 Chisel, MO2 shirt and MO3 dhothi both belonging to the deceased. The above articles were despatched by PW12 in a polythene cover. PW18(Dalice George) was the Village Officer of Muttambalam Village who proved Ext.P13 Scene Crl. Appeal No.180 of 2007 7 Plan prepared by her. PW19(P.A.Sherif) was the A.S.I of Kottayam East Police Station who recorded Ext.P4 First Information Statement of PW1 and registered Ext.P1(a) FIR. PW20 (V.M.Mohammed Rafeeque) was the C.I. of Police, Kottayam East Police Station, who conducted the investigation. On 14.10.2003 at 8 am he held inquest over the dead body of Harish and prepared Ext.P14 inquest report as per which he siezed MO2 shirt, MO3 dhoti and MO4 series of currency notes found in the pocket of MO2. PW12, the Scientific Assistant was present at the place of occurrence during the time of inquest. Thereafter at 10.30 am on 14.10.2003 PW20 inspected the scene and prepared Ext.P15 scene mahazar. He seized MO5 series of chappals from the vicinity of the scene of crime on 15.10.2003. PW20 seized the motor bike used by A2 and found abandoned. Ext.P16 is the seizure mahazar dated 15.10.2003 prepared at 12 noon. On 15.10.2003 at 10 am he had prepared Ext.P17 mahazar for locating the house of A1 where the Crl. Appeal No.180 of 2007 8 criminal conspirary was allegedly hatched. He arrested A1 and A2 in the night of 16.10.2003 and A3 on 17.10.2003 and A4 on 23.10.2003. MO1 chisel was recovered as per Ext.P9 recovery mahazar prepared at 9 am on 21.10.2003 based on Ext.P9(a) confession of A1. PW20 prepared Ext.P18 mahazar on 17.10.2003 at 9.40 pm for the recovery of MO6 mobile phone from A3. On 18.10.2003 at 6am PW20 prepared Ext.P21 for the recovery of MO7 mobile phone from one Pelur @ Kottayam Babu pursuant to Ext.P21(a) confession statement made by A3. After the conclusion of the investigation it was PW21 who succeeded PW20 who laid the charge sheet before Court. 10. As mentioned earlier PWs.2 to 4 and 6 who are the four witnesses examined as eye witnesses to the occurrence, turned hostile to the prosecution and they did not support the prosecution to any extent. We have carefully scrutinized the testimony of PWs.2 and 4 and we do not find anything to justify the observation made by the Crl. Appeal No.180 of 2007 9 learned Sessions Judge that the admissible portion of their evidence incriminates the accused. No doubt, PW2 had deposed that A2 had beat him. But he subsequently deposed that he did not know who beat him. We need not labour much on the question as to who beat A2, since the learned Sessions Judge has acquitted all the accused of the offence punishable under Section 323 IPC. Moreover, PW4 who is the other witness who has been partly relied on, by the trial court, deposed that he did not see A2 beating anybody. Same is the position with regard to PWs.7 to 9 who were examined by the prosecution to prove the motive namely, the previous enmity of A1 towards the deceased. None of them had supported the prosecution to any extent. It was therefore not permissible for the court below to assume that there was enmity towards A1 towards the deceased. PWs.13 and 14 who are the independent witnesses to the recovery of MO1 chisel allegedly pursuant to the confession of A1, did not support the prosecution. Crl. Appeal No.180 of 2007 10 Even if the solitary testimony of the investigating officer with regard to the recovery of MO1 could be believed, it is well settled that recovery evidence is only corroborative evidence and can never constitute substantive evidence. When there is no substantive evidence to connect the appellants to the occurrence, the above recovery evidence pales into insignificance. It may be true that the deceased died due to the penetrating injury sustained to his chest and abdomen. But so long as there is no legal evidence to connect the accused persons to those injuries sustained, no conviction could legitimately be entered against any of the accused. Accordingly, the conviction entered and the sentence passed against the appellants are unsustainable and are dislodged and the judgment under appeal is set aside. The appellants are found not guilty of the offences punishable under Sections 302 read with 120B IPC and are acquitted of the same. The appellants are set at liberty forthwith. Crl. Appeal No.180 of 2007 11 The appellants shall be released from prison forthwith unless their continued detention is found necessary in connection with any other case against them. Dated this the 4th day of July, 2011 V. RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE sj