IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 CRL.A.No. 1395 of 2005() ------------------------ SC.406/2004 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI .................... APPELLANT(S): 1ST ACCUSED ------------------------- VALSARAJ, S/O.GOPALAN, KADAKKATTU PURAKKAL, PUTHIYEDATH VEEDU, VALLIKUNNU AMSOM DESOM. BY ADV. SRI.M.P.PRABHANANDAN SRI.SOJAN MICHEAL RESPONDENT(S): COMPLAINANT -------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. GP MR.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------- Criminal Appeal No.1395 of 2005 ------------------------------------------------------------------- Dated 7th September 2009 Judgment Balakrishnan Nair, J. The appellant was the first accused in Sessions Case No.406/04 on the files of the Additional Sessions Judge, Fast Track No.III (Adhoc), Manjeri. Feeling aggrieved by the conviction for the offence under S.302 IPC and the sentence imposed on him, he has preferred this appeal. The prosecution case, in brief, is as follows : 2. The appellant Valsaraj was a friend of Soman, the deceased. Sumithra, the second accused, was the wife of the deceased. There was adulterous relationship between the appellant and the second accused. The deceased, at the relevant time, was working in Hyderabad as a Driver. He came home from Hyderabad on 03.07.1999. The second accused was apprehensive of the possibility of the deceased knowing about her illegitimate relationship with the appellant. So, at her instance, the appellant decided to do away with her husband by administering poison. For that purpose, he purchased 200 grams of pesticide called Furadan from a shop at Ramanattukara, near Calicut. On 07.07.1999, the appellant came to Crl.A.No.1395/05 2 the house of the deceased, they drank brandy and after some time, the appellant and the deceased went out. 3. The next day morning, the deceased was found lying unconscious under a coconut tree standing on a ridge in the nearby paddy field. People, including his wife and children gathered around. PW1, the first cousin of the deceased, along with others, took Soman, who was showing some signs of life at that time, to Medical College, Calicut. The doctor, after examining him, pronounced that he was dead. A case was registered for unnatural death as Crime No.140/99 of Parappanangadi Police Station. Later, the investigation revealed the complicity of the appellant and the second accused in the crime. So, report was filed before the learned Magistrate, arraying them as accused and also adding the offence under S.302 read with S.34 IPC. Thereafter, PW24, the Circle Inspector of Police, Tanur took over the investigation on 10.07.1999. He questioned the witnesses, recorded their statements and based on the confession statements of the accused, he recovered MOs 7 to 12. MOs 1 to 3, which were respectively the lunki worn by the deceased at the time of inquest, the lunki worn by him, when he was lying unconscious and the thorthu, which was on his body, were also recovered. On a Crl.A.No.1395/05 3 search conducted in the house of the appellant, MOs 4 to 6 were recovered. He also recovered from the house of the accused Exts.P20 to P24 letters and Exts.P25 to P33, which were the hospital documents relating to the treatment of the second accused in Fatima Hospital. PW26 was the Investigating Officer for some time and finally, PW25 completed the investigation and laid the charge before the Judicial First Class Magistrate's court, Parappanangadi. The learned Magistrate committed the case for trial by the Sessions Court. 4. The appellant pleaded not guilty to the charge.To prove its case, the prosecution examined PW1 to PW26, marked Exts.P1 to P42 and produced MOs 1 to 12. The learned Sessions Judge, after hearing both sides, found the first accused, the appellant herein, guilty of the offence under S.302 IPC. The second accused, the wife of the deceased was acquitted. The appellant challenges the conviction and sentence imposed on him, mainly on the ground that there was absolutely no evidence on record to connect him with the crime. The learned counsel for the appellant took us through the deposition of the witnesses and the relevant documents and pointed out that there is not even an iota of evidence to link the appellant with the Crl.A.No.1395/05 4 crime. Merely based on suspicion, which emanated from the fact that there was some illegitimate relationship between the appellant and the second accused, the conviction has been entered. In the absence of any evidence, the appellant is liable to be acquitted, it is submitted. 5. We heard the learned Public Prosecutor, who supported the judgment under appeal. According to him, PW4, the father of the deceased has stated before the court that the appellant was teaching karate to the children of the deceased and he was a regular visitor to that house. He used to take food from there and occasionally, dinner also. The learned Public Prosecutor took us through the evidence of PW6, the son of the deceased, who submitted that the appellant was teaching him and his younger brother karate from about 3 years prior to the death of his father. When his father was away, it was the appellant, who was looking after the affairs of the house. On the fateful day, the appellant came to his house and took brandy along with his father. Thereafter, they both went out. The learned Public Prosecutor submitted that the appellant and the deceased were seen together last by PW6. The next day morning, the deceased was found lying unconscious. The medical evidence proved that the Crl.A.No.1395/05 5 deceased died of poisoning by 'Furadan'. So, in the absence of any proper explanation by the first accused as to what happened to the deceased, it can be presumed that he had complicity in the death of Soman. Therefore, the learned Sessions Judge was fully justified in convicting the appellant, it is submitted. 6. We considered the rival submissions made at the bar. On going through the evidence and materials on record, we notice that Ext.P12 postmortem certificate, Ext.P13 final opinion of the Doctor, who conducted the postmortem and Ext.P14 certificate of Chemical Analysis would prove that Soman died of poisoning by Carbofuran, which is marketed as Furadan. The intestine, liver, kidney and blood of the deceased, when subjected to chemical analysis, were found to contain Carbofuran, apart from Ethyl Alcohol. So, we hold that it is proved beyond doubt that the death of Soman was caused by the above said poison. 7. The next point to be considered is whether there is any reliable evidence to connect the appellant with the crime. The evidence of PW4 and PW6 would show that the appellant was a regular visitor to the house of the deceased and he used to take food from there. The MO6 series photographs and MO4 negatives would Crl.A.No.1395/05 6 show that there was friendly relationship between the appellant and the second accused. We notice that even the learned Sessions Judge has declined to rely on the letters Exts.P20 to P24, recovered from the house of the appellant. Though Exts.P15 and P16 were produced to show that the appellant and the second accused stayed together in Malampuzha Guest House, they would not show that the person, who occupied the room was the appellant. Those documents would not also show that there were others along with the occupant of the room. So, the aforementioned materials, at the worst, would only indicate that the appellant was having friendly relationship with the wife and children of the deceased. It is true, PW6 has deposed that on the fateful day, the deceased and the appellant were seen going out from his house. Are the above materials sufficient to hold that it was the appellant who committed the crime ? Our answer can only be an emphatic 'No'. When a case is sought to be proved based on circumstantial evidence, it is well settled that all the circumstances proved should point unerringly to the guilt of the accused. No proposition consistent with the innocence of the accused should be possible. Going by the said principle, the materials on record are totally insufficient to hold the appellant guilty of the offence charged Crl.A.No.1395/05 7 against him. 8. In the result, we allow the Criminal Appeal and set aside the conviction and sentence imposed on the appellant in Sessions Case No.406/2004 as per the Judgment under Appeal dated 26.07.2005 by the Additional Sessions Judge, Fast Track No.III (Adhoc), Manjeri. The appellant shall be set at liberty forthwith, if his detention is not required in any other case. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Crl.A.No.1395/05 8