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2020 DIGILAW 806 (KER)

M. E. SHAJITH, S/O. NARAYANAN v. STATE OF KERALA

2020-09-28

P.V.KUNHIKRISHNAN

body2020
JUDGMENT : The appellant is the accused in S.C. No. 508/2002 on the file of Sessions Court, Thalassery. The above case is charge sheeted by the Station House Officer, Thalassery, against the appellant and another alleging offences punishable under Sections 302 and 201 IPC. 2. The prosecution case is that, on 05.09.2000, at about 5.30 p.m., due to the previous enmity towards the deceased Thacharakkal Kannoth Puthiyamaliyekkal Babu that he was continuously drinking alcohol at the residents of 2nd accused, the accused committed murder of the deceased Babu. 3. To substantiate the case, the prosecution examined PW1 to PW12. Exts. P1 to P19 are the exhibits marked on the side of the prosecution. MO1 to MO10 are the material objects. 4. The 2nd accused died before starting the trial. Therefore, the case against him was abated. After going through the oral and documentary evidence, the trial court found that the accused/appellant committed the offence under Section 304 part II of the IPC. He was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-. In default of payment of fine, the accused/appellant was directed to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the Senior counsel K.P. Dandapani for the appellant and learned Public Prosecutor. 6. The Senior counsel appearing the appellant submitted that, even if the entire evidence available in this case is accepted, no offence is made out against the appellant. The learned counsel for the appellant submitted that there is only the evidence of PW1. The prosecution witness No. 1 only said that the appellant was present near the deceased with MO4 crowbar. The learned Senior counsel submitted that even the motive for murder is not proved in this case. The Senior counsel also submitted that the other evidence produced by the prosecution is Section 27 Evidence Act recovery. The Senior counsel submitted that the evidence adduced based on Section 27 recovery is a weak piece of evidence. The learned Senior counsel also submitted that MO4, which is alleged to be seized under Section 27 of the Evidence Act is not even contained blood. The Senior counsel submitted that it is a clear case in which the trial court convicted the appellant with nil evidence. 7. The learned Senior counsel also submitted that MO4, which is alleged to be seized under Section 27 of the Evidence Act is not even contained blood. The Senior counsel submitted that it is a clear case in which the trial court convicted the appellant with nil evidence. 7. The learned Public Prosecutor submitted that the trial court, after considering the entire oral and documentary evidence, concluded that the accused committed the offence under section 304 of IPC. The learned Public Prosecutor submitted that the circumstances relied by the trial court are trustworthy, and the trial court is justified in convicting the accused. 8. The points for consideration in this appeal is whether the appellant/accused committed the offence under Section 304 part II of IPC. 9. As I stated earlier, altogether, 12 witnesses were examined in this case. PW1 is the de facto complainant through whom Ext.P1 FI statement is marked. PW2 is the taxi driver, who took the deceased to the hospital. PW3 is an inquest witnesses. PW4 is the person, who identified the body of the deceased at the time of inquest. PW5 is the brother in law of the deceased. He is the witness to Ext. P3 seizure mahazar by which MO1 to MO3 is seized. PW6 is a witness to Ext. P4 recovery mahazar by which MO4 was seized. He is also the witness in Ext. P5 seizure mahazar by which MO5 to MO8 are seized. PW7 is the scene mahazer witness. Ext. P6 is the scene mahazar. PW8 is the RMO of Indira Gandhi Hospital. He examined the deceased at first on 05.09.2000 at about 6.50 pm. PW9 is the Village Officer through whom Ext. P7 is marked. PW10 is the Doctor attached to the Co-operative Hospital through whom Ext.P8 wound certificate is marked. PW11 is the Sub Inspector of Police, who registered FIR and conducted preliminary investigation. PW12 is the Circle Inspector, who investigated the case. Admittedly the doctor who conducted the Postmortem is not examined in this case. Postmortem report is marked through the Investigating Officer. 10. There are no eyewitnesses, in this case. The trial court convicted the accused based on the following circumstances; 1. The accused was found near the victim, carrying a crowbar 2. MO4 crowbar was recovered based on the confession statement of the 1st accused. 3. Postmortem report is marked through the Investigating Officer. 10. There are no eyewitnesses, in this case. The trial court convicted the accused based on the following circumstances; 1. The accused was found near the victim, carrying a crowbar 2. MO4 crowbar was recovered based on the confession statement of the 1st accused. 3. The blood stained dresses of the 1st accused were also recovered as per the confession statement of the accused. 4. The 1st accused has not accompanied the victim to the hospital. 5. Ext.P10 certificate shows that the head injury can only be caused by hitting with an iron rod or other weapon. 6. The explanation of the 1st accused that he has come to the place of occurrence immediately after hearing the loud noise from the residence of 2nd accused cannot be believed as he has no chance to go to the 2nd accused's residence at the time of occurrence. 7. PW1 also rushed to the spot after hearing the noise from outside and saw the accused near the deceased with the crowbar. 8. The accused was seen last with the deceased. There is no explanation for it from the accused. 11. The attempt of the prosecution is to prove that the appellant inflicted the grievous hurt to the deceased using MO4 crowbar. To prove the same, the only circumstances available is the evidence of PW1. PW1 deposed that the accused was present near the deceased when he came out from the kitchen. Therefore, the evidence of PW1 is to be discussed in detail. PW1 is an auto rickshaw driver, who was a friend of deceased Babu. According to him, he has got relationship with the deceased for about 20 years. According to him, the incident happened in 2000. He was going in an auto rickshaw to the temple gate. On the way, he has seen deceased Babukka and Pranavan, who is the 2nd accused in this case sitting on the veranda of the residence of Pranavan. PW1, after dropping the passengers in his auto rickshaw came back to the house of Pranavan. On seeing Babukka, the deceased, he enquired about his welfare. He told him that he wanted his auto rickshaw for election purposes. Babukka is an active Marxist party worker and asked him to wait till 5 o'clock, and he wanted to attend a meeting to be held at bank auditorium. 12. On seeing Babukka, the deceased, he enquired about his welfare. He told him that he wanted his auto rickshaw for election purposes. Babukka is an active Marxist party worker and asked him to wait till 5 o'clock, and he wanted to attend a meeting to be held at bank auditorium. 12. After sometime he stated that he wanted to consume some liquor. So PW1 and deceased Babukka had gone to Palloor Bar at Pondicherry. Babukka consumes liquor, and after that, he had purchased 2 1/2 bottles of liquor and returned to the residence of Pranavan. Again the deceased Babukka and Pranavan started consuming liquor purchased from Palloor Bar and told him that he wanted to attend a meeting at 5 o’clock. After that, PW1 went to the kitchen of the residence of Pranvan to take food. While he was taking food, he heard some sound from outside. Then he rushed to the spot and found that Babukka was lying on the floor with bleeding from his left ear. According to PW1, the appellant, who is the 1st accused, was present there with MO4. It is also the case of PW1 that the 2nd accused was also present. He took the deceased to Indira Gandhi hospital. From Indira Gandhi hospital, the deceased was referred to the Co-operative hospital. Subsequently, when the deceased was undergoing treatment, he succumbed to the injuries. It is alleged that, the 1st accused, who is the appellant herein committed the offence under Section 302 IPC. So the only circumstances available to the prosecution from the evidence of PW1 is that, he saw the 1st accused with MO4 near the deceased when he came out from the kitchen. 13. The next evidence relied on the prosecution is that the MO4 was recovered based on the appellant/accused's confession statement. According to the prosecution, it is proved through PW6 and PW12 Investigating Officer. Ext P4 is the recovery mahazar. The prosecution also relied on the recovery of the dress of the 1st accused based on Ext.P5. According to the prosecution, this is also admissible under Section 27 of the Evidence Act. These are the other main evidence available to the prosecution to show that the appellant committed the offence. 14. Ext P4 is the recovery mahazar. The prosecution also relied on the recovery of the dress of the 1st accused based on Ext.P5. According to the prosecution, this is also admissible under Section 27 of the Evidence Act. These are the other main evidence available to the prosecution to show that the appellant committed the offence. 14. In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established, and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. In Kishore Chand v. State of Himachal Pradesh [ (1991) 1 SCC 286 ] the apex court explained this in detail. The relevant portion of the said judgment is extracted hereunder: "4. The question, therefore, is whether the prosecution proved guilt of the appellant beyond all reasonable doubt. In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. 5. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt. 6. In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that in all probability the act must have been done by the accused and the accused alone.” 15. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that in all probability the act must have been done by the accused and the accused alone.” 15. In the above decision, the Apex Court held that, there is distinction between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect. In dealing with this aspect, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. 16. I am considering the evidence adduced by the prosecution in this case based on the above principle laid down by the Apex Court. The first circumstance relied by the trial court is that the accused was found near the victim carrying a crowbar after the deceased sustained the injury. The prosecution has no case that the appellant/1st accused was there before starting the incident, which leads to the infliction of harm to the deceased. According to PW1, he and the 2nd accused alone were there with the deceased in the house. The prosecution has no case that the appellant/1st accused was there before starting the incident, which leads to the infliction of harm to the deceased. According to PW1, he and the 2nd accused alone were there with the deceased in the house. When PW1 went to the kitchen to take food, he heard a sound, and then he came back. Then he saw the 1st accused, who is the appellant herein with a crowbar near the deceased. The 2nd accused was also present there. This point is to be considered along with Section 313 Cr.P.C. statement of the accused. According to the appellant/1st accused, he was going to the temple. He heard a sound from the residence of the 2nd accused. Suddenly, he came to the house and found that Babu lying on the floor with bleeding injury. Admittedly, there is no motive to prove this case. Simply because the appellant/1st accused was present near the deceased when PW1 came back from kitchen, in my opinion, that is not at all a circumstance to prove the guilt of the accused. 17. In circumstantial evidence, motive to commit the offence is important. The Apex court in the judgment dated 25.9.2020 in criminal appeal No.1121 of 2016 considered the relevancy of motive in circumstantial evidence. The relevant portion of the judgment is extracted hereunder: “9. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in the case of Suresh Chandra Bahri v. State of Bihar [1995 Supp(1) SCC 80] that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in the case of Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paragraphs 25 and 26, it is observed and held as under: “25. However, at the same time, as observed by this Court in the case of Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paragraphs 25 and 26, it is observed and held as under: “25. In State of U.P. v. Kishanpal (2008) 16 SCC 73 , this Court examined the importance of motive in case of circumstantial evidence and observed:(SCC pp. 87-88, paras 38-39) “38. … the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. 39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction." 26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v. State of T.N (2009) 9 SCC 152 ).” 10. Considering the aforesaid facts and circumstance of the case, the findings recorded by the learned trial Court, which were based on appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial Court did not consider any material evidence on record. Trial Court was justified in recording the acquittal by observing that prosecution has failed to complete the entire chain of events. Trial Court was justified in recording the acquittal by observing that prosecution has failed to complete the entire chain of events. Therefore, we are of the opinion that in the facts and circumstances of the case, the High Court is not justified in reversing the order of acquittal passed by the learned trial Court. Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside.” 18. It is a settled position that motive is also a relevant factor in circumstantial evidence cases. It is true that motive is a thing that is primarily known to the accused. Prosecution may not be able to prove motive in all cases. The accused may not divulge the motive to commit an offence to others. In such circumstances, if there is direct evidence to prove the offence, the motive to commit the offence is irrelevant. But if there is only circumstantial evidence to prove an offence the motive is also a relevant factor. 19. In this case, the prosecution has not proved any motive against the appellant to commit the offence. In such a situation, the case of the defence is to be considered along with the circumstantial evidence adduced by the prosecution. PW1 says that the appellant was present near the deceased after he sustained the injury. The appellant says that he went to the temple, and when he heard a sound from the house of the second accused, he went to the house of the 2nd accused, and he saw the deceased lying on the floor. Hence the evidence of PW1 to the effect that the appellant was present near the deceased after the incident is not a circumstance to conclude that he is guilty of murder but it is a circumstance which will probablise the case of the defence. 20. The second circumstances relied by the prosecution is that the blood stained dresses of the 1st accused was recovered as per the confession statement. I do not know what is the relevancy of the same in this case. According to the prosecution, MO5 to MO8 were recovered based on the confession statement of the 1st accused. 20. The second circumstances relied by the prosecution is that the blood stained dresses of the 1st accused was recovered as per the confession statement. I do not know what is the relevancy of the same in this case. According to the prosecution, MO5 to MO8 were recovered based on the confession statement of the 1st accused. Section 27 of the Evidence Act reads like this: “ Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 21. The section only says that, when any fact is deposed to as recovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be relevant. Simply because the blood stained dress worn by the appellant is recovered based on his confession statement, that cannot be a circumstance against him. He admits his presence at the place of occurrence. It is also an admitted fact that the deceased sustained injuries. He probably might have helped to take the injured to the hospital, and consequently, the blood might have sustained in his dresses. That is not a circumstance to prove his guilt. That is not a circumstance to convict the appellant. 22. The next circumstance relied by the prosecution is the recovery of MO4 crowbar, which is said to be recovered under Section 27 of the Evidence Act. That alone cannot be a reason to convict a person. This Court in Mujeeb Rahiman V. State of Kerala ( 2020 (3) KHC 400 ) observed that recovery evidence under Section 27 of the Evidence Act is a weak piece of evidence. The Division Bench of this Court in Mottammal Shaji @ Kakka Shaji and Others v. State of Kerala [ 2017 KHC 155 ] also considered this point. The relevant portion of the said decision is extracted hereunder: “47. The Division Bench of this Court in Mottammal Shaji @ Kakka Shaji and Others v. State of Kerala [ 2017 KHC 155 ] also considered this point. The relevant portion of the said decision is extracted hereunder: “47. The proposition that merely on the basis of a fact discovered on the confession of an accused, while in custody, the prosecution cannot seek his conviction without establishing other corroborating circumstances is beyond any pale of dispute. In other words, it may be imprudent to convict a person solely on the factum of recovery under S.27 of the Act.” 23. Therefore, simply because MO4 is recovered based on the confession statement of the accused that is not at all a circumstance unless there is something else to corroborate the same. It is a settled position that the recovery evidence under Section 27 of the Evidence Act is a weak of evidence. 24. Then, the other circumstance relied by the trial court is that, according to the medical evidence the head injury can only be caused by hitting with iron rod or other weapon. According to the learned Judge, the defence case that the injury sustained due to a fall is improbable and therefore that is also a circumstance against the appellant. I am surprised to see that the learned Judge relied such a circumstance to prove the guilt. In criminal cases, it is a settled position that the prosecution must prove the case beyond reasonable doubt. The prosecution cannot rely on the weakness of the defence. Simply because the suggestion made by the defence to the witnesses is improblised or the suggestion made by the defence is contrary to the medical evidence, the trial court can't accept the same as a circumstance against the appellant to convict him. Therefore, the trial court erred in relying the same to convict the accused. 25. The next circumstance relied by the learned Judge is that the defence of the 1st accused that he has come to the place of occurrence after hearing the loud noise from the residence of the 2nd accused cannot be believed as he has no chance to come to the residence of the 2nd accused at the time of occurrence. I am unable to accept this as a circumstance to convict the appellant. These are the suggestions made by the defence in a criminal case. I am unable to accept this as a circumstance to convict the appellant. These are the suggestions made by the defence in a criminal case. There may be contrary or inconsistent defence made by the accused in a criminal case. Those defences cannot be relied by the trial court to convict an accused. The lower court also relied upon the 'last seen together' theory to convict the accused. The same is not all applicable here because the accused was admittedly seen by PW1 after the deceased sustained injury and that also with the second accused. 26. I perused the entire oral and documentary evidence available in this case. After going through the entire evidence, I see no circumstance or chain of circumstances to prove the appellant's guilt. Therefore, I think the appellant, in this case, is entitled to the benefit of the doubt. Hence this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 21.12.2004 in S.C. No.508 of 2002 of the Additional Sessions Court, Adhoc-II, Thalassery is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled.