Case: Mujeeb &amp; Another Vs. State of Kerala

courts below both PWs32 and 33 could not have identified the accused. More over PW32 became hostile witness. The car was taken to PW40 who was the owner of Excel autos in Mananthawady for purchasing diesel. According to the courts below prosecution also could not prove this fact as PW40 turned hostile. 15. Regarding the death by strangulation of the deceased while they were going from Mananthawady towards Thamarassery the trial court did not accept this version of story of the prosecution in view of medical evidence. It is true that at the time of conducting autopsy the dead body was decomposed. PW42 who conducted autopsy clearly stated that during post-mortem he did not find any positive evidence of ligature strangulation. This witness gave the opinion that possibility of death resulting from ligature strangulation as per police history can be ruled out. 16. The High Court held as follows : "It is here the theory of strangulation with MO-14 found the dead-body became relevant and acceptable particularly in the context that the medical evidence did not totally rule it out as the case of death." 17. We are of the opinion that the High Court erred in law in not giving the clear finding inasmuch as medical evidence is clear. The evidence of doctor that possibility of death resulting from ligature strangulation as per police history could not be ruled out, is not a positive medical evidence to come to the conclusion that death was caused by strangulation.18. We find from the impugned judgment that the High Court laid too much stress on the subsequent alleged conduct of the accused. According to prosecution after dropping the dead body accused went to Mysore and Bangalore in the same car and they stayed there till 3.4.91. At Bangalore they stayed at Manjunatha Lodge which fact was sought to be proved by prosecution by examining PW15. The prosecution has led evidence to prove disposal of articles belonging to the deceased by the accused.19. We find from the evidence of the Investigating Officer PW13 that accused were taken to various places for alleged recovery of the above articles. Though according to Investigating Officer the recovery was made on the basis of statement of the accused but we find from the evidence that actual words in verbatim leading to recovery were not recorded by the Investigating Officer. For example in case of one recovery PW49 deposed in the following words : "Thereafter, based on the statement of the same accused that he knows the person who runs a blade company and provisions shop at Ambalavayal with whom he had pledged the gold bangles and that he could show the same place as led by the accused we reached the same place and questioned the witness and recorded his evidence." 20. In our opinion such a statement by the accused can not be treated as statement of the accused leading to recovery. More over witnesses to the recoveries were co-drivers of deceased residing far away at the distance of about 100 k.ms. Therefore, such recoveries are not legally acceptable.21. According to the prosecution on 4.4.91 in the evening accused entrusted the car for service in the automobile workshop informing that they would take car on the next day and while trying to do so they were apprehended by the sub- Inspector of the police Sutlans Battery on 5.4.91. From the evidence PW47 the sub-inspector who apprehended the accused persons we find that this witness did not record the information given by the owner of the workshop and the fact that he apprehended the accused in the general diary of the police station. According to PW47 these facts were recorded in his pocket note book which was not proved. We are unable to accept the above version of the story of the prosecution, and therefore, hold that the High Court erred in law in accepting it.22. On the following material circumstances the prosecution tried to bring home the charges against the accused namely: (i) A1 hired the tourist taxi driven by deceased Balan; (ii) all the accused went in the car driven by deceased Balan to Wyand and spent some time in Pookad Lake and thereafter they visited Thirunelli temple and Mananthavadi; and (iii) while returning to Thamarasserry accused gave soft drink "Fruity" mixed with sleeping pills to deceased Balan and after immobilizing and removing him from drivers seat A1 drove the car and accused strangulated the driver Balan to death and thereafter proceeded to Puthuppadi.23. Both the courts below did not accept the above circumstances except the fact that the High Court did not rule out possibility of death of deceased Balan by strangulation which finding is not tenable in law as stated above.24. The High Court giving considerable importance to the subsequent events of recovery of the vehicle from the service station, taking into custody of the accused by the sub-Inspector of police, Sultan Batterys, recovery of articles belonging tot he deceased and parts of the car, found the appellants guilty. We have already held that the prosecution has failed to prove the above circumstances. We hold that the High Court erred in law in not considering whether the circumstances proved, formed a complete chain. In this chain of circumstances following links are missing namely- hiring of taxi driven by the deceased by A1, visiting lake and temple by the accused in the taxi driven by the deceased, giving soft drink mixed with sleeping tablets, intoxicating liquor and death of the deceased due to strangulation. In view of the above missing links in the chain of circumstances we hold that the prosecution has failed to establish the guilt of the accused cogently and firmly. A reasonable person on the facts of this case cannot come to the conclusion that the accused were guilty. Taking into accoum the cumulative effect of all these circumstances and weighing them as an integrated whole we have no hesitation to come to the finding that the accused were not guilty.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. We are of the opinion that the High Court erred in law in not giving the clear finding inasmuch as medical evidence is clear. The evidence of doctor that possibility of death resulting from ligature strangulation as per police history could not be ruled out, is not a positive medical evidence to come to the conclusion that death was caused by strangulation.18. We find from the impugned judgment that the High Court laid too much stress on the subsequent alleged conduct of the accused. According to prosecution after dropping the dead body accused went to Mysore and Bangalore in the same car and they stayed there till 3.4.91. At Bangalore they stayed at Manjunatha Lodge which fact was sought to be proved by prosecution by examining PW15. The prosecution has led evidence to prove disposal of articles belonging to the deceased by the accused.19. We find from the evidence of the Investigating Officer PW13 that accused were taken to various places for alleged recovery of the above articles. Though according to Investigating Officer the recovery was made on the basis of statement of the accused but we find from the evidence that actual words in verbatim leading to recovery were not recorded by the Investigating Officer. For example in case of one recovery PW49 deposed in the following wordsbased on the statement of the same accused that he knows the person who runs a blade company and provisions shop at Ambalavayal with whom he had pledged the gold bangles and that he could show the same place as led by the accused we reached the same place and questioned the witness and recorded his evidence.In our opinion such a statement by the accused can not be treated as statement of the accused leading to recovery. More over witnesses to the recoveries wereof deceased residing far away at the distance of about 100 k.ms. Therefore, such recoveries are not legally acceptable.21. According to the prosecution on 4.4.91 in the evening accused entrusted the car for service in the automobile workshop informing that they would take car on the next day and while trying to do so they were apprehended by the subInspector of the police Sutlans Battery on 5.4.91. From the evidence PW47 thewho apprehended the accused persons we find that this witness did not record the information given by the owner of the workshop and the fact that he apprehended the accused in the general diary of the police station. According to PW47 these facts were recorded in his pocket note book which was not proved. We are unable to accept the above version of the story of the prosecution, and therefore, hold that the High Court erred in law in accepting it.22. On the following material circumstances the prosecution tried to bring home the charges against the accused namely: (i) A1 hired the tourist taxi driven by deceased Balan; (ii) all the accused went in the car driven by deceased Balan to Wyand and spent some time in Pookad Lake and thereafter they visited Thirunelli temple and Mananthavadi; and (iii) while returning to Thamarasserry accused gave soft drink "Fruity" mixed with sleeping pills to deceased Balan and after immobilizing and removing him from drivers seat A1 drove the car and accused strangulated the driver Balan to death and thereafter proceeded to Puthuppadi.23. Both the courts below did not accept the above circumstances except the fact that the High Court did not rule out possibility of death of deceased Balan by strangulation which finding is not tenable in law as stated above.24. The High Court giving considerable importance to the subsequent events of recovery of the vehicle from the service station, taking into custody of the accused by theof police, Sultan Batterys, recovery of articles belonging tot he deceased and parts of the car, found the appellants guilty. We have already held that the prosecution has failed to prove the above circumstances. We hold that the High Court erred in law in not considering whether the circumstances proved, formed a complete chain. In this chain of circumstances following links are missing namelyhiring of taxi driven by the deceased by A1, visiting lake and temple by the accused in the taxi driven by the deceased, giving soft drink mixed with sleeping tablets, intoxicating liquor and death of the deceased due to strangulation. In view of the above missing links in the chain of circumstances we hold that the prosecution has failed to establish the guilt of the accused cogently and firmly. A reasonable person on the facts of this case cannot come to the conclusion that the accused were guilty. Taking into accoum the cumulative effect of all these circumstances and weighing them as an integrated whole we have no hesitation to come to the finding that the accused were not guilty.