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2012 DIGILAW 504 (KER)

Saithukutty v. State Of Kerala

2012-06-08

M.SASIDHARAN NAMBIAR, P.BHAVADASAN

body2012
Judgment:- Sasidharan Nambiar, J. 1. First accused in S.C.No.125 of 2009 on the file of Additional Sessions Court, Ernakulam is challenging his conviction and sentence for the offence under Section 302 of IPC in this appeal. Appellant, along with 8 other accused, was tried for the offences under Section 143, 147, 148 and 302 of IPC read with Section 149 of IPC for the murder of Shahul Hameed, the husband of PW11, Fathima. PW1 Hussain is the brother of PW11. They are residing in nearby houses. Prosecution case is that on 26.6.2006 at about 1 pm, the deceased had an altercation with second accused, Shameer and to wreck vengeance, the second accused, along with other ten accused, the last one being a juvenile, formed an unlawful assembly with the common object of murdering Shahul Hameed and in furtherance of the common object, appellant inflicted the fatal injury on his chest with Mo1 iron needle on 26.2.2006 at about 9 pm in the varandah of a shop building and caused his death. Prosecution case is that the incident was witnessed by Pws 3 to 6 and 12 and PW12 informed it to PW1, who lodged Ext.P1 FI Statement. Prosecution has a case that before inflicting the injury on the deceased, in furtherance of the common object, accused 1 to 4 searched the deceased and threatened him that if they could not find the deceased, his family will not be left behind and accused 1 to 4 and 7 had gone to the house of PW11 and searched for the deceased and threatened that Shahul Hameed will be done away with and Shahul Hameed was murdered in furtherance of the common object. 2. Prosecution though examined the eye witnesses Pws 3 to 6 and 12, all of them turned hostile and deposed that they did not witness the incident. PW1 and PW11 supported the prosecution case. PW1 deposed from the box that accused 1 and 4 had approached him on the night of 26.6.2006 and threatened him that if they did not find Shahul Hameed, the family of PW1 will be done away with. PW11 deposed that accused 1 to 4 and 7 came to her house and threatened that Shahul Hameed will be done away with. They have no case that they had witnessed the incident. PW12 denied the case that he informed the incident to PW1, as deposed by PW1. PW11 deposed that accused 1 to 4 and 7 came to her house and threatened that Shahul Hameed will be done away with. They have no case that they had witnessed the incident. PW12 denied the case that he informed the incident to PW1, as deposed by PW1. 3. The specific question was framed whether the death of Shahul Hameed was caused by appellant as a member of unlawful assembly and the other accused were members who participated in the incident, we find no finding on that question. Accused 2 to 9 were acquitted finding that there is no evidence against accused 5, 6, 8 and 9 and "the chain of evidence as against accused 2 to 4 and 7 has been broken ". Appellant was convicted based on the circumstantial evidence. According to learned Additional Sessions Judge, the circumstantial evidence pointing out the guilt of the appellant are the threats made by the appellant as deposed by PW1 and PW11 and the recovery of Mo1 weapon under Ext.P7 recovery mahazar, proved by the evidence of PW16 Investigating Officer and PW7 and PW8 the witnesses to Ext.P7 recovery mahazar. Learned Additional Sessions Judge relied on the information furnished by the appellant, marked as Ext.P7(a) in Ext.P7 recovery mahazar, to hold that recovery of Mo1 was made at the instance of the appellant. These are the only circumstances relied on by the learned Additional Sessions Judge. 4. Learned counsel appearing for the appellant pointed out that the circumstances relied on by the learned Additional Sessions Judge do not establish that appellant inflicted the injury on the deceased and therefore his conviction is unsustainable. Learned counsel pointed out that Mo1, though alleged to be the weapon with which the injury was inflicted on the appellant, was not proved to be the weapon used for inflicting the injury. It was also pointed out that Ext.P26, the report of the Director of Forensic Science Laboratory, who examined Mo1 at the laboratory establish that the blood found in Mo1 was not sufficient to prove whether it is of human origin, much less that of the deceased and therefore, there is no evidence to prove that Mo1 was the weapon used for inflicting the injury on the deceased. It was also pointed out that no other witness had given evidence that the injury was inflicted with Mo1. It was also pointed out that no other witness had given evidence that the injury was inflicted with Mo1. Learned counsel also argued that Ext.P7 (a), portion of the alleged confession statement of the appellant does not disclose that appellant had kept the knife at the place from where it was recovered and at best, it would only show that appellant was aware of the place where the weapon was kept and based on that fact, it cannot be found that appellant committed the offence. It was also pointed out that evidence of PW1 and PW11 even if accepted, would only show that appellant, along with accused 2 to 4 and 7, approached PW1 and PW11 and made a threat and based on that fact, appellant cannot be found guilty and as none of the circumstances relied on by the court establish that the offence was committed by the appellant, the conviction is not sustainable. 5. Learned Public Prosecutor argued that learned Additional Sessions Judge relied on the evidence of PW1 and PW11 as well as recovery of Mo1 and the evidence of PW13, the doctor who conducted the Post Mortem examination and they establish that Mo1 is the weapon with which the injury was inflicted and as death was caused by the said injury and Mo1 was recovered on the information furnished by the appellant, his conviction is perfectly sustainable. 6. When the prosecution has a case that the appellant was one among the members of the unlawful assembly and the common object of the unlawful assembly was to cause the death of Shahul Hameed and in furtherance of the common object Shahul Hameed was killed, the first question to be decided is whether there was an unlawful assembly and if so whether all the accused or some of the accused were members of the unlawful assembly. Unfortunately the trial court did not even consider this aspect. Evidently there is no evidence to prove the existence of the very unlawful assembly. The motive alleged by the prosecution is on account of an incident allegedly happened at 1 pm on the same day. There is no evidence to prove that incident. In any case the incident is a quarrel between the second accused and the deceased. Even if that case is true, the motive could be for the second accused and not specifically for the appellant. There is no evidence to prove that incident. In any case the incident is a quarrel between the second accused and the deceased. Even if that case is true, the motive could be for the second accused and not specifically for the appellant. Prosecution case was not based on circumstantial evidence. Case was that incident was witnessed by Pws 3 to 6 and 12. But Pws 3 to 6 and 12 turned hostile and deposed that they did not witness the incident. It is in such circumstances, learned Additional Sessions Judge found that this is a case relying on circumstantial evidence, though originally the prosecution case is not based on circumstantial evidence. 7. When the case is solely based on circumstantial evidence, the five principles enunciated in Sharad Birdhichand Sarda V. State of Maharashtra (AIR 1984 SC 1622) which are held to be the cardinal principles regarding appreciation of circumstantial evidence which were followed by all the subsequent decisions of the Honourable Supreme Court, should have been borne in mind by the learned Additional Sessions Judge. The following five golden principles constitute the panchaseel of proof of a case based on circumstantial evidence as held in Sharad's case (supra). "i)The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved; and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade V. State of Maharashtra, (1973) 2 SCC 793: (AIR 1973 SC 2622) where the following observations were made: "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions". ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, iii) The circumstances should be of a conclusive nature and tendency, iv)They should exclude every possible hypothesis except the one to be proved, and v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused". These five golden principles, if we may say so, constitute the panchasheel of the proof of a case based on circumstantial evidence". 8. The question is whether the circumstances pointed out by learned Sessions Judge would establish that the injury which caused the death of Shahul Hameed was inflicted by the appellant. Even if the evidence of PW1 and PW11 are accepted, the circumstances relied on are the threats made by the accused. According to PW1, he was threatened by the appellant and 4th accused that unless Shahul Hameed was found, his family would be wiped of. Even if the evidence of PW1 is to be believed, it would only show that accused 1 to 4 made a threat that if they could not find Shahul Hameed, his family will be wiped of. So also, even if the evidence of PW11 is accepted, it would only show that accused 1 to 4 and 7 made a threat that they will kill her husband. There is no case for PW1 or PW11 that appellant alone had made any threat. Therefore, the evidence of PW1 and PW11, even if accepted, would only show that there was a threat by accused 1 to 4 and 7 and no special threat by the first accused. It can never be a circumstance as against the appellant alone. 9. The only other evidence relied on by learned Additional Sessions Judge is the recovery of Mo1. Even if it is taken that Mo1 was recovered on the information furnished by the appellant, unless there is evidence to prove that Mo1 is the weapon with which the injury was inflicted, it will not be a link in the chain of circumstantial evidence to prove the guilt of the appellant. Even if it is taken that Mo1 was recovered on the information furnished by the appellant, unless there is evidence to prove that Mo1 is the weapon with which the injury was inflicted, it will not be a link in the chain of circumstantial evidence to prove the guilt of the appellant. As stated earlier, no witnesses identified Mo1 as the weapon with which the injury was inflicted. Pws 3 to 6 and 12 who could have identified Mo1, have no case that they witnessed the incident much less identified Mo1 as the weapon used for inflicting the fatal injury. If there is scientific evidence to prove that Mo1 is the weapon with which the injury was inflicted, it could have been a link in the chain of circumstances. Though Mo1 was examined at the Forensic Science Laboratory, Ext.P26, the report of the Director of Forensic Science Laboratory establish that though there was blood stains in the weapon, it's origin is not established. Therefore, there is no evidence to prove that Mo1 contain blood of the deceased. There is no evidence to prove that blood found in Mo1 is that of human origin. Therefore, even if Mo1 is recovered on the information furnished by the appellant, it cannot be said that recovery of Mo1 is a link in the chain of circumstances connecting the appellant with the murder of Shahul Hameed. 10. Honourable Supreme Court in Mustkeem alias Sirajudeen V. State of Rajasthan (AIR 2011 SC 2769)considered the relevancy of recovery of a weapon in a case depending on circumstantial evidence and held: "With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution". 11. When there is no evidence whatsover to connect Mo1 with the murder of Shahul Hameed, the recovery cannot be a link in the chain of circumstances. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution". 11. When there is no evidence whatsover to connect Mo1 with the murder of Shahul Hameed, the recovery cannot be a link in the chain of circumstances. Moreover, based on the recovery of Mo1 alone even if it was used for inflicting the injury, it cannot be found that appellant committed the offence, when on the circumstances pointed out, possibility of anybody else committing the offence cannot be ruled out. The facts esablished by the circumstances relied on by the learned trial Judge are not consistent only with the hypothesis of guilt of the appellant. They are conclusive in nature or tendency. They do not exclude the possibility of others committing the offence. The circumstances pointed out are inconsistent with the hypothesis of innocence of the appellant. In such circumstances, appellant cannot be found guilty for the murder of Shahul Hameed as found by the learned Additional Sessions Judge. 12. Added to this, we find that the charge framed against the appellant was only for the offence under Section 302 read with Section 149 of Indian Penal Code. There was no charge for the offence under Section 302 of Indian Penal Code alone. When the charge is that appellant committed the offence under Section 302 read with Section 149 of Indian Penal Code and the learned Additional Sessions Judge found that there was no unlawful assembly, in the absence of a charge for the independent offence under Section 302 of IPC against the appellant, he could not have committed the offence under Section 302 of IPC without the aid of Section 149 of Indian Penal Code. 13. In the result, appeal is allowed. Appellant is not guilty of the offence charged. The conviction of the appellant and the sentence for the offence under Section 302 of Indian Penal Code awarded in S.C.No.125 of 2009 on the file of VIth Additional Sessions Court, Ernakulam is set aside. He is acquitted. As the appellant is in prison undergoing the sentence, release him forthwith, if not wanted in any other case.