IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 CRL.A(V).No. 2057 of 2011() --------------------------- SC.72/2006 of ADDL.DISTRICT COURT (ADHOC-I), KASARAGOD .................... APPELLANT (PW-8)/BROTHER OF THE DECEASED (S): ----------------------------------------------------------------------------- K.P. NAGARAJ, AGED 42 YEARS, S/O.LATE K.R. PADMAABHAN, RESIDING AT AJANOOR VILLAGE, HOSDURT TALUK, KASARAGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS RESPONDENT(S): ------------------------ 1. MALLIKARJUNA, AGED 48 YEARS, S/O. LAKSHMANA, KUTHIRU, MATTUMMAL, CHITTARI VILLAGE, HOSDURG TALUK, P.O. CHITTARI, KASARAGODE DISTRICT (NOW RESIDING AT PODIPALA, RAVANESHWARAM P.O., ANADASRAM (VIA.), KASARAGODE DISTRICT.) 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI.ROY THOMAS. THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING COME UP FOR ADMISSION ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- Crl. A. (V) No. 2057 of 2011 ------------------------------------------------- Dated this the 6th day of December, 2011 JUDGMENT Basant,J. This appeal is preferred by the appellant - the brother of the deceased under the proviso to Sec.372 read with Sec.2(wa) Cr.P.C. 2. The brother of the appellant was murdered. The 1st respondent - a relative, faced indictment for the offence punishable under Sec.302 IPC. According to the prosecution, there were two eye witnesses to the occurrence. Both were cited as witnesses by the prosecution. One of them - the father of the deceased, was not alive when the matter came up for trial. The other eye witness examined by the prosecution turned completely hostile to the prosecution i.e., P.W.9. There was no other evidence tendered about the incident proper in which the deceased suffered injuries. The prosecution had tried to establish the motive which allegedly prompted the respondent/accused to commit the crime. 3. The prosecution had also relied on the evidence about the information furnished by the respondent/accused while in the Crl. A. (V) No. 2057 of 2011 -: 2 :- custody of the police about concealment of M.O.5 scissors which allegedly was the weapon of offence. The evidence of recovery was sought to be proved by examination of the Investigating Officer. The recovery mahazar was duly proved. 4. The learned Sessions Judge came to the conclusion that in view of the hostility of the sole eye witness examined and the inability of the prosecution to adduce any better evidence to prove the incident proper, no verdict of guilty and conviction can be entered against the appellant for the offence punishable under Sec.302 IPC. Accordingly, the court proceeded to pass the impugned judgment of acquittal. 5. Called upon to explain the learned counsel for the appellant Sri. Jawahar Jose fairly accepts that the prosecution has not been able to provide any evidence before court except the evidence about the alleged motive and the evidence of recovery of M.O.5 scissors on the basis of the information furnished by the respondent./accused in his statement given to the police officer. 6. We do not want to embark on unnecessary disputes. We accept that these circumstances have been established convincingly. No other circumstances have been relied on or proved by the prosecution. We have no hesitation to agree that on the pieces of evidence available now, the conclusion is Crl. A. (V) No. 2057 of 2011 -: 3 :- inescapable that the court below is correct and the judgment of acquittal does not at any rate warrant appellate interference. The learned counsel for the appellant wants to place reliance on the dictum in State of Karnataka v. David Razario and another (2002 KHC 1878). We have been taken through the decision. That was a case where the accused faced indictment for robbery and murder. The discovery in that case was of the personal belongings/ornaments of the deceased which were allegedly robbed. In the facts and circumstances of that case, after holding that the recovery under Sec.27 of the Evidence Act has been proved, the Supreme Court proceeded to found a verdict of guilty and conviction on that piece of evidence admitted. 7. The facts scenario in the present case is entirely different. We are not of the opinion that when a crucial fact is discovered on the basis of confession statement, a verdict of guilty is impossible on the basis of the evidence of recovery. What is of crucial importance is the probative significance of the fact discovered. So reckoned, we are unable to agree that the dictum in David Razario (supra) can have any direct application to the facts of this case. 8. The conclusion, in these circumstances, is inescapable that the appellate jurisdiction of this Court cannot and need not Crl. A. (V) No. 2057 of 2011 -: 4 :- be invoked in the facts scenario of this case. We find no reason to admit this appeal. This appeal is dismissed in limine. Sd/- R. BASANT (Judge) Sd/- V. CHITAMBARESH (Judge) Nan/ //true copy// P.S. to Judge