IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 CRL.A.No. 1489 of 2005 ------------------------ SC.426/2001 of ADDL. SESSIONS COURT, FAST TRACK -II, PALAKKAD .................... APPELLANT: COMPLAINANT ------------------------- STATE OF KERALA, REP. BY CIRCLE INSPECTOR OF POLICE, OTTAPPALAM, REP. BY THE STATE PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTORSRI.P.N.SUKUMARAN RESPONDENT: ACCUSED ---------------------- SUNDARAM @ BALASUBRAMANIAM, S/O. RAMAKRISHNAN, KOKKURI VEEDU, SHORNUR. ADV. SRI.C.S.MANU SRI.ANOOP.V.NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ CRL. APPEAL NO.1489/2005 ------------------------------ Dated this, the 13th day of November, 2009 JUDGMENT Balakrishnan Nair, J. The State has preferred this Crl.Appeal, challenging the judgment of the Court of Additional Sessions Judge, Fast Track Court No.II, Palakkad in S.C.No.426/2001. 2. The respondent was charge-sheeted by the Shornur Police for the offences under Sections 377, 302 and 201 of the I.P.C. The allegation was that on 25.12.1999, in the evening the respondent Sundaram and the deceased Subhash were grazing a cow belonging to PW1, who is the father of the deceased, in a neighbouring property. Against the will of the deceased, the respondent indulged in sodomy with the deceased. Later, using a stone, the respondent hit on the head of Subhash and he succumbed to that injury. To destroy evidence, the respondent burned his blood-stained shirt in his CRA No.1489/2005 - 2 - kitchen. Thus, according to the appellant-State, the respondent committed the offences punishable under Sections 377, 302 and 201 of the I.P.C. 3. On the final charge being laid before the Judicial First Class Magistrate's Court, Ottapalam, the learned Magistrate committed the case for trial by the Sessions Court, which, in turn, was made over to the Additional Sessions Judge, Fast Track Court No.II, Palakkad. The respondent pleaded not guilty to the charge framed against him by the trial court. The prosecution, to prove its case, examined PWs.1 to 21, marked Exts.P1 to P17 and produced M.Os.1 to 20(a). The learned Additional Sessions Judge, after hearing both sides, acquitted the respondent. Hence this Criminal Appeal by the appellant State. 4. The learned Public Prosecutor took us through the evidence on record. PW1 is the father of the deceased. Subhash, the deceased was a Plus One student aged about 15. When, in the afternoon of 25.12.1999, his mother (PW2) and sister went to the hospital, to show an ailing child in their CRA No.1489/2005 - 3 - neighbourhood to a doctor, the key of their house was given to the deceased. When PW1 returned in the evening, the house was found locked. PW2 and her daughter, who is the sister of the deceased came after some time from the hospital. Since there was a spare key with them, the door was opened. Even after 6 O'clock when the deceased did not return, PW1 and his family members told about the missing of their son to the persons in the neighbourhood and all of them conducted extensive search in the neighbourhood. But, nothing could be detected. Finally, the body of the deceased was detected on the next day from the property of Sulaiman, an immediate neighbour. Thereupon. PW1 lodged Ext.P1 F.I. Statement before PW19, the Sub Inspector of Police. PW19 registered a crime and forwarded Ext.P1(a) F.I.R to the court. PW2, the mother of the deceased and wife of PW1 also spoke on the above matters. PW3 and his daughter PW4 are residing in the neighbourhood. They also spoke about the missing of Subhash, the deceased. PW5 is the attestor to Ext.P2 inquest report prepared by PW20, the investigating officer. PW6 is the attestor to Ext.P3 seizure CRA No.1489/2005 - 4 - mahazar for seizing M.Os.1 to 4. PW7 is also an attestor to the very same mahazar. PW8 is the attestor to Ext.P4 scene mahazar. PW9 is the attestor to Exts.P5 and P6 seizure mahazars, as per which MO6 lungi of the accused produced by the mother of the accused and MO7 ash from the kitchen of the accused were seized. PW10 is the attestor to Ext.P7 mahazar, as per which the dress worn by the accused at the time of his arrest was seized. Ext.P11 is the doctor who conducted the post-mortem examination and issued Ext.P8 post-mortem certificate. According to him, injury Nos.1 to 3, which were the injuries on the head of the deceased, were the cause of death. Ext.P9 Forensic Science Lab report was also marked through him. PW12 is the doctor who examined the accused on his arrest and issued Ext.P10 wound certificate. PW13 is the Scientific Assistant who collected M.Os.10 to 14 from the place where the body was found and from the kitchen of the accused. PW14 is the Village Officer, who prepared Ext.P11 scene plan. PW15 was a friend of the deceased. PW16 is a lady in the neighbourhood. PW17 is an elderly lady who CRA No.1489/2005 - 5 - gave perfume to the accused on 25.12.1999 in the evening. PW18 is the attestor to Ext.P12 seizure mahazar for seizing the perfume bottle. As mentioned earlier, PW19 registered Ext.P1 (a) F.I.R. PW20 is the investigating officer, who conducted the inquest, questioned the witnesses, sent the body for autopsy to the Medical College Hospital, Thrissur. PW21 is the Deputy Superintendent of Police, who filed Ext.P16 report before the Magistrate's Court, adding the offences punishable under Sections 377 and 201 of the I.P.C and also laid the charge-sheet before the learned Magistrate. 5. Going by the evidence on record, we find that there is not even an iota of evidence to connect the respondent with the crime. It is a futile exercise to refer in detail to the depositions of the witnesses, as none of them has spoken about the involvement of the respondent in the crime. There is no incriminating material unearthed or facts disclosed, admissible under Section 27 of the Evidence Act. In view of the above position, the Criminal Appeal is devoid of any merit and it is, accordingly, dismissed. CRA No.1489/2005 - 6 - 6. Before parting with the case, we would like to add a few words on the investigation of the case. From Ext.P9 Forensic Science Lab report, we find that human spermatozoa was detected in the anal smear of the deceased. If the spermatozoa of the accused matched with the spermatozoa detected in the anus of the deceased, it would be a conclusive evidence against the accused, establishing the offence punishable under Section 377 of the I.P.C. Unless the accused explains what happened to the deceased after he committed sodomy, it can be safely inferred that it was the accused who committed the murder. So, absence of proper investigation of the crime has resulted in the accused being acquitted. In the eyes of the dear and near of the deceased and the general public of the area, the criminal justice system would appear in poor light, for not securing the conviction of the real culprit. Failure to use the scientific methods for investigation like DNA test etc., appears to have caused the failure of the prosecution. The Registry shall send a copy of this judgment to the CRA No.1489/2005 - 7 - Home Secretary of the State of Kerala and the Director General of Police. K. Balakrishnan Nair, Judge. P. Bhavadasan, Judge. nm.