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2021 DIGILAW 586 (KER)

Shaji @ Babu @ Japan Shaji v. State of Kerala

2021-07-05

K.VINOD CHANDRAN, ZIYAD RAHMAN A.A.

body2021
JUDGMENT : K. VINOD CHANDRAN, J. 1. Apathy on all fronts conspires to derail the investigation and prosecution when the victim is unattached, unconnected and unaligned. An indigent spinster was smothered to death, tied in a sack and thrown into the backwaters. An equally unattached, unconnected and unaligned person was booked for the crime and thrown behind bars as a result of an indifferent investigation and inefficient prosecution. No ripples caused, no publicity, no public trial, no twilight vigil and no protest at all. A poor soul is choked to death and another sent to prison to assuage whatever feelings of whomsoever. 2. The case set up by the prosecution is entirely based on circumstantial evidence. A corpse was found floating in the backwaters, which was identified and investigation commenced. The prosecution case was that the deceased lady was living with the accused in a rented room in one OK Hall Complex and that on 13.11.2014, at around 7.45 p.m. they had a quarrel concerning the proceeds of the sale of lotteries, which business they were engaged in together. The deceased is said to have slapped the accused on the face and in a rage he smothered her. The corpse was then bundled into a sack, tied with a cloth (torn from a dhoti), and thrown into the backwaters. PW-1, a Security Guard, gave the FIS (Ext.P1) on seeing the corpse floating. The body, retrieved with the help of PW-2 was, partly decomposed, wearing earrings (MO2), clad in a two-piece green chudidar (MO3 and 4) and its hands and feet were tied with a shawl (MO1). The sack was marked as MO5. 3. Investigation was conducted and a charge-sheet laid against the accused under S.302 of the Indian Penal Code. Before the trial Court, PWs. 1 to 38 were examined and Exts.P1 to P47 were marked. Material objects were marked as MO1 to MO27. The accused was convicted and sentenced to undergo imprisonment for life and pay a fine of Rs. 1 lakh, with a default sentence of rigorous imprisonment for six months. 4. Sri. P.K. Varghese, appearing for the appellant-accused, contended that there was absolutely no evidence to convict the accused under S.302 and this is a classic case, where there has been a travesty of justice. It is pointed out that none of the witnesses identified the accused in Court, as is required under the law. 4. Sri. P.K. Varghese, appearing for the appellant-accused, contended that there was absolutely no evidence to convict the accused under S.302 and this is a classic case, where there has been a travesty of justice. It is pointed out that none of the witnesses identified the accused in Court, as is required under the law. There is not even one circumstance connecting the accused with the crime, leave alone a chain of circumstances with unbroken links. The scientific evidence does not provide any link to the accused as claimed, even if the recovery is proved. The prosecution has not produced or marked the property list, by which MO27, the cloth piece used to tie the sack with the corpse and MO20, the dhoti were produced before Court. PW-4, though was close with the deceased, had absolutely no prior acquaintance with the accused. There is nothing to show that the accused and deceased were living together or at least seen together just before the time of death, as has come out in medical evidence. There is no valid proof as to the accused having taken out a room on rent and there is far less proof as to both the accused and deceased staying in that room. The Investigating Officer [I.O.] was not confronted with many of the material objects by the prosecution and even when the seizure mahazars were proved, the exact date of seizure has not been disclosed. The call details produced by the prosecution in evidence do not connect the accused, deceased and PW-4. The trial Court had misdirected itself completely and has relied on very sketchy evidence to convict the accused and sentence him to life imprisonment. The so-called extrajudicial confession cannot at all be relied on. 5. Sri. S.U. Nazar, learned Senior Public Prosecutor, on behalf of the State, argues that there are 19 circumstances listed out by the trial Court, which clearly proves the death having been caused by the accused and that too, by smothering. The learned PP relies on [Sarad Birdhi Chand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , Shivaji Sahebrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 , Gamparai Hrudayaraju vs. State of Andhra Pradesh, AIR 2009 SC 2364 and Hanuman Govind Nargundkar vs. State of Madhya Pradesh, AIR 1952 SC 343 ]. 6. The learned PP relies on [Sarad Birdhi Chand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , Shivaji Sahebrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 , Gamparai Hrudayaraju vs. State of Andhra Pradesh, AIR 2009 SC 2364 and Hanuman Govind Nargundkar vs. State of Madhya Pradesh, AIR 1952 SC 343 ]. 6. On the identity of the deceased and as to how the death was caused, there is no dispute for either side. The deceased was identified primarily by her friend, PW-4, who came forward on seeing the report in a Newspaper about an unidentified corpse, which was wearing a ‘palakka’ earring. PW-4 identified MO3 earrings as one purchased from Lakshmi Jewellery at Paravur. PW-4 also identified the body from the nail polish on the feet; which we do not rely on. PW-11 is the Manager of Lakshmi Jewellery, who deposed that the deceased had joined a scheme having a duration of 18 months for the purchase of gold. Ext.P8 is the application form, which was seized as per Ext.P9 mahazar and Ext.P8 also contained a copy of the Ration Card, in which the name of the deceased is also shown. PW-11 identified MO3 earrings and specifically spoke about the hallmark on the earring, which identifies it as one purchased from his jewellery. Though there is a discrepancy concerning the description of the mark as stated to the Police; on which a contradiction was marked as Ext.P1, the trial Court rightly found after looking at the object itself that the error was clerical and occurred while taking down the statement. 7. In addition to the above evidence, the fingerprint of the dead body was compared with the thumb impression found in Ext.P5 Deed, the original of which was seized from the possession of PW-35, the brother of the deceased. Ext.P34 report of the fingerprint expert proved by PW-38, I.O, opines that the left thumb impression of the unidentified dead-body (marked as ‘Q1’) is identical with the finger impression taken from the rear side of Original Deed No. 4063 of 2003 of SRO, Chavara, (marked as ‘S1’) found against the name of the deceased since they possess identical ridge characteristics in their nature and relative positions'. The blood sample of PW-35, brother of the deceased, was taken and the DNA extracts were compared with that taken from the sternum bone of the deceased. The blood sample of PW-35, brother of the deceased, was taken and the DNA extracts were compared with that taken from the sternum bone of the deceased. The DNA Analysis Report marked as Ext.P46 confirmed the DNA profile of the sternum bone to be of female origin and found the biological relationship of siblings existing between the sources from which such extracts were taken. The identity hence has been proved without any room for doubt. 8. The post-mortem examination was carried out by PW-36 and the report was marked as Ext.P30. There were three injuries noticed, which were abrasions over the right side of the chin at its lower end, another parallel to that injury and the third on the under aspect of the right side of chin with its upper end outer to the midline at the lower jaw margin. The body was found to be decomposed and the opinion as to death was reserved pending the chemical examiner's report; which was marked as Ext.P32. Based on both these reports, it was opined that death was due to drowning and the possibility of attempted smothering cannot be ruled out, as seen from Ext.P31 post-mortem Certificate. The post-mortem findings that the death was caused by drowning, the possibility of smothering as also the fact that the corpse had its hands and feet tied and was bundled into a sack unequivocally establish homicide and rules out suicide. Now the question is as to who was responsible and whether the evidence is sufficient to connect the accused with the crime and establish the guilt unerringly on him with a chain of circumstances. 9. The relationship between the accused and the deceased is first spoken of by PW-4. PW-4 is a close acquaintance of the deceased and they maintained contact. She speaks of the deceased having been employed with a home nursing firm and then commenced the sale of lotteries. She also says that the deceased had been residing with one Shaji, a native of Kayamkulam. To start the lottery business, the deceased had taken a loan from PW-4, which was promised to be repaid on 14th November 2014. On 13th November, the deceased had called PW-4 to confirm repayment on the next day. Later, one Shaji had called her, from the same phone and told her about unnecessary ruckus created by the deceased. To start the lottery business, the deceased had taken a loan from PW-4, which was promised to be repaid on 14th November 2014. On 13th November, the deceased had called PW-4 to confirm repayment on the next day. Later, one Shaji had called her, from the same phone and told her about unnecessary ruckus created by the deceased. It is also stated that Shaji said he was beaten on the head by the deceased and asked her whether PW-4 could intervene to separate them. Shaji, according to PW-4, also said that even if the deceased is killed and thrown into the backwaters, there will be none to ask after her. It is to prove this conversation between PW-4 and the accused that the prosecution produced call details. 10. The call details were produced by PW-28. Exts.P21 and P22 are application forms for two mobile connections, one taken out in the name of Thankamma and the other in the name of Shaji. The number 8547556569 belongs to Thankamma and the telephone number 9447957862 belongs to Shaji, the accused; the service provider of both is BSNL. PW-28 produced the call details of subscriber number 8547556569 which was marked as Ext.P20. Ext.P24 is the call details of 9447957862. Ext.P33 is the Election ID Card of Thankamma, who has been examined as PW-37, who deposed that she took the number for the accused. PW-28 says that from the first number, on 13.11.2014 there were nine outgoing calls to 9947257885; the subscriber of which is not traced out. PW-4 does not reveal her mobile phone number in her deposition, nor does the prosecution produce any proof. The evidence of PW-28 also indicates that both the aforesaid numbers were in the Kodungallur tower area and moved to Muvattupuzha, Kuravilangad, Ettumanoor, Kattappana. Hence, the evidence is that the two numbers one in the name of Thankamma and the other in the name of the accused, were with the very same person and the prosecution case is that both the aforesaid numbers were used by the accused. 11. Pertinently there is no substantiation of the testimony of PW-4 about the telephone call made by the deceased or the accused to her. The prosecution specifically asked PW-4 about the number of the deceased and the accused, to which she feigned ignorance in the chief examination. 11. Pertinently there is no substantiation of the testimony of PW-4 about the telephone call made by the deceased or the accused to her. The prosecution specifically asked PW-4 about the number of the deceased and the accused, to which she feigned ignorance in the chief examination. But, in re-examination PW-4 says that the number 8547556569 was that of the deceased; which is in the name of Thankamma. There was not even a query made as to the mobile number of PW-4 and we fail to understand how the call details of the numbers of the accused alone, could establish a contact between the accused or the deceased with PW-4. As is alertly pointed out by the learned Counsel for the accused, Ext.P8 produced in proof of identity of the deceased, by the prosecution, indicates clearly the address and phone number of the deceased; which is not that stated by PW-4. When the death occurred in November 2014, the said application made by the deceased was in June 2014. No inquiry has been made either at the residential address of the deceased shown in Ext.P8 application form or the mobile number indicated therein. PW-4, who was made nominee in Ext.P8 application, as a friend and who helped her to join the gold scheme was also not asked any question about the residential address shown therein or the phone number. Though PW-4 identified the deceased, we are not prepared to believe the testimony concerning the statements allegedly made by the accused to her, especially since PW-4 has no prior acquaintance with the accused. Further, when call details of both the telephone numbers used by the accused were available, there should have been an investigation into the numbers, which had contact with the aforesaid mobile numbers. No such attempt was made by the investigating team and the prosecution too failed in eliciting the number to which PW-4 received calls, as stated by her in Court, from the deceased and the accused on the 13th and 14th of November, 2014. 12. The learned Sessions Judge has discussed the incriminating circumstance provided by the call details in paragraphs 27 and 28. Mobile Nos. 8547556569 and 9447257885 were both found to be used by the accused, based on the evidence of PW-37, PW-5 and Ext.P22 application, a gross error. PW-5 spoke of the number of the accused as 8547556569 and 9447917862 and not 9447257885. Mobile Nos. 8547556569 and 9447257885 were both found to be used by the accused, based on the evidence of PW-37, PW-5 and Ext.P22 application, a gross error. PW-5 spoke of the number of the accused as 8547556569 and 9447917862 and not 9447257885. Ext.P22 application form is also concerning 9447917862. While recording such an erroneous finding concerning Mobile No. 9947257885, immediately in paragraph 28 it is stated that the call details of Mobile No. 8547556569 shows ten outgoing calls to the number of PW-4 9947257885; which is stated to be that of the accused in the earlier paragraph. The prosecution case is that the mobile numbers used by the accused are 8547556569 and 9447917862 and that of PW-4 is 9947257885. The call details of 8547556569 also reveal ten calls from that to mobile No. 9947257885. The learned Sessions Judge then found that PW-38 deposed that the mobile number of PW-4 is 9947257885; which we see to be correct from his deposition. But for the bland statement made by the I.O. PW-38, there is no evidence to prove the mobile number of PW-4. PW-4 also did not state her mobile number. There is not even a question put in chief-examination or re-examination as to the mobile number of PW-4. When the lack of documentary proof was pointed out by the defense, the learned Sessions Judge refused to accept the contention on the ground that the oral evidence of PW-4 indicated that she was called, by the accused and deceased from the mobile number 8547556569. There is no such statement by PW-4, that we see from her deposition. And anyway this does not indicate the number in which PW-4 received the call. We fail to understand how the statement regarding the number from which the calls were made, can get over the lacuna of no documentary proof having been put forth of the receiving number or its subscriber. 13. The learned Counsel for the accused has also seriously challenged the assumption of the prosecution that the accused and deceased were living together. PW-5 is a vehicle broker, who was entrusted with a scooter by the accused for sale. Nothing revolves around such entrustment. PW-5 also speaks of having been acquainted with the deceased, who was engaged in selling lotteries at North Paravur. There is only a laconic statement that he has seen the accused and deceased talking to each other on the road. Nothing revolves around such entrustment. PW-5 also speaks of having been acquainted with the deceased, who was engaged in selling lotteries at North Paravur. There is only a laconic statement that he has seen the accused and deceased talking to each other on the road. PW-8 is the owner of the room in OK Hall Complex and the rent agreement is marked as Ext.P6 and the recital of surrender is marked as Ext.P7. In cross-examination, PW-8 has stated that Ext.P6 specifies the number of the room given on rent and the duration was two months. We looked at Exts.P6 and P7, which the learned Counsel asserts, are cooked-up documents. Ext.P6 is stated to be entered on 27.10.2014. The recital is of taking the room on rent for three months, as against the clear statement of PW-8, that it is for two months. The room number is also not indicated in Ext.P6 as asserted by PW-8. It is also pertinent that there is nothing produced to prove that PW-8 owns a room in OK Hall Complex, which he also has the right to give on rent. 14. PW-9 conducts a medical shop in the OK Hall Complex. He says that there are rooms in the said building given on rent for residential purposes also. PW-9 arranged the room on rent for the accused and also signed as a witness in the rent agreement and the surrender recital. P6 is not a stamped document. The duration of the lease as stated in it; apart from being very improbable that anybody takes a residential room for such a short period and an agreement is reduced to writing for that short duration, differs from the period stated by the alleged owner before the Court. Further PW-9 does not say anything about the deceased, which becomes relevant since he had close acquaintance with the accused and is also a person carrying on a business in a room in the building in which the accused was said to be residing. PW-10 is another witness to the rent recital, who also says that he was the intermediary to the rent arrangement and that the duration of the rent agreement was two months. The said witness also, a person having a business in the building, does not speak about the deceased or her connection with the accused. 15. PW-10 is another witness to the rent recital, who also says that he was the intermediary to the rent arrangement and that the duration of the rent agreement was two months. The said witness also, a person having a business in the building, does not speak about the deceased or her connection with the accused. 15. PW-14 is the witness to Ext.P11 mahazar, when the police along with Scientific Assistant inspected the room in which allegedly the quarrel and smothering occurred. He is the Manager of OK Yogam; an entity which presumably has some proprietary interest in the building. He proved the recovery of an ID Card MO16 and a strand of hair, both allegedly of the deceased. He also marked MO17 medical bill, in the name of the accused, also recovered from the room. PW-14 spoke of having seen a woman coming to the room of the accused and that the woman was the person in the ID card but there is no statement that they were living together. There was no question asked to him about the rental arrangement i.e. the factum of PW-8 owning a room therein or anything touching upon the case of the prosecution that the accused and deceased were living together in the room in the said building. PW-16 is a document writer having an office in OK Hall Complex and is the scribe of Ext.P6 document. PW-16 submits that the room taken on rent by the accused was just above his office. He says that the accused was residing there and he saw “one lady, on one day” (sic), along with the accused; a very vague statement. In cross-examination, he also admitted that he did not tell the police about having seen a lady in the room of the accused. 16. PW-18 has been arrayed as a witness to speak about the use of one mobile purchased from a mobile shop, which earlier was used by the accused. PW-19 is the mobile shop owner, who speaks about the purchase of the used mobile from the accused. However, he does not specifically speak of a sale. He also does not remember the person to whom the mobile was sold. Despite the admission in cross-examination that the details of the persons not known to him are recorded by him, such record has not been shown to the police or produced in Court. However, he does not specifically speak of a sale. He also does not remember the person to whom the mobile was sold. Despite the admission in cross-examination that the details of the persons not known to him are recorded by him, such record has not been shown to the police or produced in Court. In re-examination, the witness says that MO18 phone was purchased by the accused from him and returned within a month. Surprisingly, the Court allowed the said question when the prosecution did not have a case that MO18 phone was purchased by the accused from PW-19 and no anomaly in that respect arise in cross-examination. In further cross-examination, the witness also stated that this fact was not told to the Police. No reliance can be placed on the evidence of PW-19, especially when there is no evidence from the cellular company as to the specific SIM Card having been used in the mobile so recovered from PW-18 by reference to the IMEI number of the instrument. The IMEI number of the instrument is also not proved before Court. More importantly, nothing revolves solely around the use of two mobile numbers by the accused so far as the mobile number of PW-4 has not been proved. The entire exercise is rendered futile since there is no proof of the mobile number of PW-4, which alone could establish the outgoing calls from the mobile number of the accused having been made to PW-4, offering substantiation for her deposition that the accused made those statements, as deposed before Court, to PW-4 regarding the deceased. We already found that there is no basis for finding the accused or the deceased having called PW-4 as has been stated by her, in her deposition. The evidence concerning what the accused told her in that circumstance has already been brushed aside. 17. Reverting to the prosecution case that the accused and deceased were living together in a room rented out by the accused, we have already referred to the rent agreement and the discrepancies in the evidence led. PW-8 is the alleged landlord, PWs. The evidence concerning what the accused told her in that circumstance has already been brushed aside. 17. Reverting to the prosecution case that the accused and deceased were living together in a room rented out by the accused, we have already referred to the rent agreement and the discrepancies in the evidence led. PW-8 is the alleged landlord, PWs. 9 and 10, persons who occupied rooms in the building, the former running a medical shop and the latter, a flower merchant, PW-15, the Manager of OK Yogam and PW-16, the scribe of P6, who is engaged in document writing in the very same building have been examined on the side of the prosecution to establish this case. We find none of these witnesses having identified the accused in Court, as required, which is a very serious omission on the part of the prosecution as also the Court. PW-8 has made a vague statement that the accused is present in Court........If not the prosecution, the Court should have asked the witness to specifically identify the accused as usually done by asking the witness to point out the man/woman. Even the vague identification, as made by PW-8, was not made by the other witnesses paraded before Court. Insofar as the residence of the deceased in the room; none speaks of it. PW-14 speaks about having seen one woman coming to the room, which person was identified from the ID card MO16 without any statement made of joint residence.....PW-16 also speaks of having seen one woman on one day. No identification of the woman was attempted by the prosecution through PW-16. PW-16, in cross-examination also admitted that he did not tell the police about having seen one woman on one day. The prosecution case of the accused and deceased having lived together has not been established. 18. One other circumstance relied on by the trial Court was the recovery of a bill for medicines in the name of the accused and the ID Card of the deceased from the room in OK building along with a strand of hair. The FSL report, P18 concerning the strand of hair does not help the prosecution. As far as the other recoveries are concerned, the confession statement appears in Ext.P11. The FSL report, P18 concerning the strand of hair does not help the prosecution. As far as the other recoveries are concerned, the confession statement appears in Ext.P11. It says, “I shall show you the room in which myself and the accused were together residing.” But the said confession statement has not been marked through PW-38, the I.O. What has been stated by the I.O is the following: Others Language This translates as On 28.10.2014 along with the accused kept in station custody and CW-26, who was present on my request examined the room, the scene of occurrence as stated by the accused. On that day prepared the Scene mahazar and discovered Baby's ID card, Medical Bill, etc. Ext. P11 was prepared. This statement is clearly inadmissible as it is a confession of the crime and there is no discovery made based on the confession. The accused did not speak of any concealment and what was discovered was not spoken of at all by the accused. The recoveries from the room hence cannot be relied on and it does not connect the accused to the crime at all. 19. On recoveries under Section 27 of the Evidence Act, AIR 1947 PC 67 Pulukuri Kottayya vs. King Emperor held so: “.....it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” Herein there is no object said to have been concealed by the accused and the ID card and medical bill were accidentally discovered if at all the mahazar is believed. The confession as available in the deposition is not admissible. Even the confession in Ext.P11 is inadmissible as it cannot be found that there is the concealment of a room. The medical bill in the name of the accused and the ID of the deceased, discovered from the room could have corroborated the case of a joint residence; which the prosecution has miserably failed to establish. 20. The further recovery is of the dhoti and the piece of cloth torn from the dhoti, MO20 and MO27 respectively. The arrest of the accused was made on 27.12.2014 at 13.00 hrs. and Ext.P11 recovery from the alleged rented room was made on 28.12.2014 at 11 a.m. The accused was produced before the Judicial First Class Magistrate at 1.45 p.m. as is seen from the endorsement in Ext.P35. The I.O. has deposed that the recovery of the dhoti was made pursuant to the accused being taken into custody between 05.01.2015 and 06.01.2015. The recovery of the dhoti, MO20 was made by Ext.P14. Ext.P2 is the Inquest Report which speaks of MO27 as found on the body. On page 3 of Ext.P2, after the description of the sack, in which the corpse was found, it is stated so: Others Language This reads as the chord with which sack was tied at the middle for a length of 55 cm with 7 cm extending out after the knot. The object with which the sack with the body was tied is stated to be a chord having 62 cm length. The object with which the sack with the body was tied is stated to be a chord having 62 cm length. Ext.P42 forwarding note at Item No. 6 on Page 3 describes it as follows: Others Language This speaks of a piece of white dhoti of khaki colour in distinction to a chord seized at the time of Inquest. The measurements are not given and the description does not tally with Ext.P2. 21. Ext.P43 FSL report indicates item No. 6 (MO27), as follows: “It contained one old, torn and soiled white coloured plastic sack, with a 3.68 m long light green coloured cloth piece found tied on its top portion. Maximum width of the cloth piece was 2.9 cm. The sack bore the label reading: “Coimbatore Roller Flour Mills (P) Ltd. Coimbatore JEEP BRAND ATTA.” Obviously what has been examined by the FSL as item No. 6 is not that which is recovered by Ext.P2, since it is a cloth piece as distinguished from a chord or thread, which description is seen from Ext.P2. The length of the object as seen from Ext.P43, FSL report is 3.68m, while the length seen from Ext.P2 is only 62cm. Hence MO27 as examined by the FSL is not the chord by which the body and the sack were tied. 22. Similarly, MO20 has been recovered on the confession statement of the accused as seen from Ext.P14(a). Based on Ext.P14(a) confession statement, the dhoti was recovered, the description of which is as follows in Ext. P14: Others Language This translates as: A piece of a white dhoti with khaki border having about 130 cm length and 120 cm breadth. MO20 was not identified by the I.O. when he was examined as PW-38. PW-20 mahazar witness marked the dhoti piece as MO20. There is no evidence of a Forwarding Note before the Court to indicate the said recovered object having been sent for medical examination. However, the FSL Report at Ext.P43 shows item No. 7 in the Forwarding Note (MO20) as examined by the FSL, which is described in the following manner in Ext.P43: “Item No. 7: It contained one old, torn, and stained white coloured piece of cloth having 117 cm x 127 cm dimensions and with a light green coloured border on its one edge. The maximum width of the border portion was 3 cm.” The measurements again do not tally since what is recovered is a dhoti of measurement 130 x 120 cm as seen from Ext.P14, while that in Ext.P43 FSL report has the measurement of 117 x 127 cm.” 23. In this context the discrepancy concerning the colour also assumes significance. The colour of the border of MO20 as seen from the FSL report is light green as is the border of item No. 6 in the FSL report, which is MO27. The Inquest Report Ext.P2 indicated the colour of M027 chord to be khaki and so is the border of the dhoti recovered as per Ext. P14. The learned trial Judge has looked at the border in sun-light and had opined that it has a cow-dung colour which could be mistakenly noted as khaki. We do not pass any opinion on that and we do not think verification at our end is necessary because of the glaring discrepancies pointed out by us. In any event, MO27, at the time of the inquest, was marked as a thread or chord and not as a piece of cloth i.e. of a dhoti with a border and the measurements as seen from seizure mahazars and the FSL reports differ considerably, throwing suspicion on the scientific evidence offered by the prosecution. The measurements of M020 dhoti also differ in the FSL report from that in the recovery mahazar, Ext.P14. More pertinent is the fact that the Property lists at Ext. P41 series marked before Court through PW-38 does not show either MO 20 or MO27 having been submitted to the Court. This adds fuel to the suspicion raised by us. We find no reason to accept the scientific evidence of the chord recovered by Ext. P2 to be a piece of the dhoti recovered through Ext. P14. MO 27 piece of cloth and MO20 dhoti though found to be similar as per Ext P43, FSL Report, the said objects are not those recovered. MO5 is the sack in which the body was found. PW-15 is the witness, who deposed that the accused purchased MO5 sack from his shop. PW-15 also was not asked to identify the accused nor did PW-13, the I.O. identify the sack, serious lapse on the part of the prosecution. 24. MO5 is the sack in which the body was found. PW-15 is the witness, who deposed that the accused purchased MO5 sack from his shop. PW-15 also was not asked to identify the accused nor did PW-13, the I.O. identify the sack, serious lapse on the part of the prosecution. 24. The extrajudicial confession was not seriously urged by the prosecution in the trial Court or before this Court. All the same, it is argued based on the deposition of PW-21. He claims to be acquainted with the accused and stated that the accused told him that, by accident, the victim died when he hit her on the head with a stick. In cross-examination, he made contrary statements of he being told that his friend's wife jumped into the backwaters and got killed and that she died when she was hit. He also admitted that he had not stated any of these to the Police. Moreover, he also said that he was a suspect and that he was taken to Kattappana by the Police, from where his statement was recorded. We cannot but say that these are incoherent, contradictory statements on which no reliance can be placed and quite understandably the prosecution did not seriously urge the ground. 25. Asar Mohd. vs. State of U.P. (2019) 12 SCC 253 reiterated the principles concerning the appreciation of evidence in a case that hinges on circumstantial evidence quoting precedents in the following manner: “13. Before proceeding to consider the rival submissions, be it noted that in the present case, no direct evidence has been produced by the prosecution regarding the involvement of the appellants in the commission of the crime. The prosecution rests its case solely on circumstantial evidence. The legal position as to how such matter should be examined has been expounded in Padala Veera Reddy vs. State of A.P. 1989 Supp (2) SCC 706 : 1991 SCC (Cri) 407 in the following words: (SCC pp. 710-711, Paras 10-11) “10......This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See Gambhir vs. State of Maharashtra, (1982) 2 SCC 351 ].” 11. See also Rama Nand vs. State of H.P. (1981) 1 SCC 511 , Prem Thakur vs. State of Punjab, (1982) 3 SCC 462 , Earabhadrappa vs. State of Karnataka, (1983) 2 SCC 330 , Gian Singh vs. State of Punjab, (1986) Supp. SCC 676 and Balwinder Singh vs. State of Punjab, (1987) 1 SCC 1 .” 14. In Mulakh Raj vs. Satish Kumar, (1992) 3 SCC 43 , the Court succinctly restated the legal position in Para 4 as under: (SCC p. 46): “4......Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and sentence would follow.” 26. It is with the above principles in mind that the circumstances put forth by the prosecution have to be evaluated. The court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and sentence would follow.” 26. It is with the above principles in mind that the circumstances put forth by the prosecution have to be evaluated. As was pointed out by the learned Prosecutor, the trial Court has listed out 18 circumstances, which were found to be proved to find the guilt on the accused. We will deal with them one by one. (1) The identity of the deceased has been proved, but there is (2) no proof that the accused and deceased were living together. (3 to 7) There is nothing to indicate the deceased or the accused having called PW-4 though PW-4's evidence that she did not receive any calls from the deceased later can be believed. What PW-4 states as having been spoken by the accused about the deceased has not been proved. The call details are useless insofar as the mobile number of PW-4 having not been elicited from her or substantiated by documentary evidence. (8) the use of two mobile numbers by the accused has been proved. (9 to 11) We have found that the evidence of PWs. 8, 9, 10, 14 and 16 do not establish the renting out of the room in OK Hall Complex by the accused and there is no proof that the deceased had resided there with the accused. When the rent agreement has not been proved, there is no question of the surrender being proved. The recovery of MO16 Identity Card and MO17 Medical Bill has been specifically disbelieved by us. (12) The evidence of PW-13 only shows that the accused had kept a scooter and some clothes in a bag and had told him that he is keeping away for some time for the reason that he had had a skirmish with a local leader. He had obviously absconded. (13) The call list proves that the two SIM cards had travelled from Kodungallur after the ill-fated day as spoken of by PW-28. (14) Though the sack MO5 had been identified by PW-15, he does not identify the accused and the prosecution failed to get the sack identified by PW-38. He had obviously absconded. (13) The call list proves that the two SIM cards had travelled from Kodungallur after the ill-fated day as spoken of by PW-28. (14) Though the sack MO5 had been identified by PW-15, he does not identify the accused and the prosecution failed to get the sack identified by PW-38. (15 and 16) MO27 with which MO5 sack was tied, which we have found as tested in the FSL was not the one recovered. There is no identity established between the recovered chord and dhoti. MO27 and MO20 are identified as the former being a piece torn from the latter but that is inconsequential in view of our finding that those are not the objects recovered. (17) The knowledge of the concealment of MO20 is inconsequential insofar as the scientific evidence having been disbelieved and also MO20 tested at the Laboratory being not the one recovered. (18) Exts.P30 and P31 post-mortem findings would definitely indicate the death having been caused by way of drowning with the possibility of smothering, spoken of by the expert. (19) The vacation of the rented premises categorized by the trial Court as sudden and brisk, cannot be a relevant circumstance in the context of the renting out having not been proved. 27. The circumstances proved are that there was a homicide by drowning and probably of smothering, deceased was identified and PW-4, a friend did not receive any calls from the victim after the probable date of death. The accused was using two mobile phones, he had left Kodungallur speaking of a skirmish with a local leader and his scooter and a bag containing clothes were kept with PW-13. These proven circumstances do not at all connect the accused to the crime. 28. We do not find any reason to uphold the conviction and sentence of the accused for the reason of the case of the prosecution having not been established beyond a reasonable doubt. An unidentified corpse was seen floating in a sack and the police deduced the circumstances, which after investigation, were sought to be established by the evidence led before the trial Court. The established circumstances fail to impress us in bringing home the guilt of the accused. The evidence as discussed by us does not at all indicate an unbroken chain of circumstances unerringly pointing to the guilt of the accused. The established circumstances fail to impress us in bringing home the guilt of the accused. The evidence as discussed by us does not at all indicate an unbroken chain of circumstances unerringly pointing to the guilt of the accused. As we noticed, the prosecution was inefficient and the Court too was a silent spectator. We allow the appeal acquitting the accused. We direct the judgment to be sent to the learned Sessions Judge, who conducted the trial for future reference and guidance. The appellant shall be released forthwith unless his continued detention is required in any other case.