IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 CRL.A.No. 2122 of 2004() ------------------------ SC.226/2003 of SESSIONS COURT, PATHANAMTHITTA .................... APPELLANT: ACCUSED: ------------------- YOHANNAN @ JOY S/O. MATHAI, EATTIMOOTTIL VEEDU, VATTAMONPARA, THAZHAM MURI, IRAVON VILLAGE. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: COMPLAINANT: -------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.M.A.14966/04 IN CRL.A.2122/04 DISMISSED SD/- K.BALAKRISHNAN NAIR, JUDGE SD/- M.C.HARI RANI, JUDGE. 18.6.08 K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- CRL.A.No.2122 OF 2004 ----------------------------------------------------- DATED THIS THE 18th DAY OF JUNE, 2008 JUDGMENT Balakrishnan Nair, J. The appellant challenges his conviction and sentence in S.C.No.226/03 on the files of Sessions Court, Pathanamthitta. He was found guilty of the offence punishable under Section 302 IPC and sentenced to undergo RI for life and also to pay a fine of Rs.1 lakh and in default to undergo simple imprisonment for a further period of one year. 2. The brief facts of the case are the following: The appellant and the deceased were husband and wife. They were residing at Vattamon along with their daughter Nyci aged 3 ½ years. Earlier, they were residing along with the appellant's sister and husband at Vellapara. They shifted to Vattamon in February, 1999. While so, on 29.6.1999 afternoon, the deceased Saly was found dead in her house by her daughter Nyci. On hearing her cries, PW1 came to the scene. She was shocked to find the deceased lying in a pool of blood. Hearing her cries, the neighbours came to the spot. It was found that Saly was dead. PW1 lodged the information with the police and a crime was registered for the offence under Section 302 IPC. Based on the statement of the neighbouring persons that the appellant CRL.A.No.2122/04 2 was seen coming to the house and going out of it at the relevant time, he was suspected of having committed the murder. The police arrested him on 30.6.1999. The investigation in this case was conducted by the Circle Inspector of Police, PW15. He conducted the inquest, questioned the witnesses, and sent the body for postmortem. PW14, the Circle Inspector of Police who was the successor in office laid the charge before the Judicial First Class Magistrate, Pathanamthitta. The learned Magistrate committed the case to the Sessions Judge for trial. 3. The appellant pleaded not guilty to the charge framed under Section 302 IPC by the learned Sessions Judge. From the side of the prosecution, Pws 1 to 15 were examined and Exhibits P1 to P21 were marked. MOs 1 to 14 were produced. All the occurrence witnesses turned hostile. Practically, PWs 5 and 15 only supported the prosecution case. Since PW1 has deviated from her statement made before the police, she was also cross examined with the permission of the court. 4. With the materials on record, including the postmortem report, it is evident that the death of Saly was homicidal. The point to be decided is, whether the appellant was the culprit, who committed the murder. Pws 1 to 4 are persons residing in the neighbourhood, CRL.A.No.2122/04 3 who were examined to prove that they saw the appellant coming to his house at the relevant time and leaving it after some time, turned hostile. They did not support the prosecution. The result is that practically there is no evidence to connect the accused/appellant with the incident. PW5 has stated that the appellant has murdered his sister. But the same is only hearsay evidence, which cannot be relied on. Another circumstance, which may have pointed an accusing finger against the accused is the recovery of the scissors under Section 27 of the Evidence Act. But, the recovery is from the side of a public road. The scissors were recovered from a heap of granite metal, which was kept by the side of the road for its maintenance. None of the independent witnesses has supported the recovery. They have categorically stated that they have not seen the appellant coming or taking the scissors. Even if the version of the Investigating Officer is believed, the said recovery does not inspire confidence as it is made from the side of a public road. Further, scissors are common things available every where. So, based on the recovery of the scissors, it is quite unsafe to come to the conclusion that the appellant is the assailant who inflicted the fatal injury on the deceased. The learned Sessions Judge has appreciated the evidence as if the burden is on the accused to disprove the accusation against him. The learned Judge CRL.A.No.2122/04 4 failed to consider whether the evidence adduced by the prosecution is sufficient to prove the guilt of the accused beyond reasonable doubt. We have no doubt in our mind that absolutely there is no evidence on record to connect the accused with the crime. The prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. In the result, the appeal succeeds. The conviction and sentence imposed, on the appellant in S.C.No.226/03 by the Sessions Court, Pathanamthitta is set aside. He shall be set at liberty forthwith, if his detention is not required in connection with any other case. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn CRL.A.No.2122/04 5 K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- CRL.A.No.2122 OF 2004 ----------------------------------------------------- DATED THIS THE 18th DAY OF JUNE, 2008 GIST OF THE JUDGMENT Balakrishnan Nair, J. xxxxxxxx xxxxxx xxxxxxx In the result, the appeal succeeds. The conviction and sentence imposed, on the appellant in S.C.No.226/03 by the Sessions Court, Pathanamthitta is set aside. He shall be set at liberty forthwith, if his detention is not required in connection with any other case. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn