IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2019 of 2005()
1. T.RAJA, S/O.THANKAMONY,
... Petitioner
Vs
1. STATE OF KERALA.
... Respondent
For Petitioner :SRI.SHAIJAN C.GEORGE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :04/11/2009
O R D E R
K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.
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Cr.A.No.2019 of 2005
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Dated 4th November 2009
Judgment
Bhavadasan, J.
The accused in this case was prosecuted for the offences
punishable under S.302 and S.397 IPC. He was found guilty and was
accordingly convicted for both the offences and was sentenced to
suffer imprisonment for life for the offence punishable under S.302
IPC and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) on
default of payment of which, he had to undergo rigorous
imprisonment for a further period of one year. So far as the offence
under S.397 IPC is concerned, he was sentenced to undergo
rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-
on default of payment of which, he had to suffer simple imprisonment
for one year. It was directed that the substantive sentences of
imprisonment shall run concurrently. The case of the prosecution, in
short, is as follows :
2. The deceased namely, Selvarani was staying with PW4.
They were leading a family life, though not married. They had been
residing so, for about three years prior to the incident. Both of them
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had children in their earlier marriage. On 07.10.2000, as usual, PW4
went for work. Selvarani, the victim was at home at that time. When
PW4 returned by about 7 pm. after the work, he found the door of the
house locked. Contrary to the usual practice, he came to know that
Selvarani had not entrusted the key to the neighbour. He went in
search of the victim and came to know that by about 4 pm. on that
day, she was seen going to the market with an umbrella. Inspite of
best efforts made by him, he was unable to locate his companion. It
is alleged that at the time when she had gone out of the house, she
was wearing gold ornaments.
3. PW4, on 8.10.2000, made a complaint before the Edavanna
Police Station about the missing of Selvarani. Ext.P6 is the said
F.I.Statement. Based on Ext.P6, which was recorded by PW16,
Ext.P12 F.I.R. was registered. PW16 started investigation and on
09.10.2000, the body of Selvarani was found in Chaliyar River. He
conducted inquest over the body and submitted Ext.P11 report. He
recovered MOs 7 and 8 found on the body of the deceased and sent
the body for postmortem. PW11, the Assistant Professor in Forensic
Department, Medical College Hospital, Kozhikode conducted autopsy
and prepared Ext.P8 postmortem report. The subsequent
Cr.A.2019/05 3
investigation was done by PW18 Dy.S.P. of Police. He would state
that during the investigation, he came to know that the accused had
a role in the missing of Selvarani and accordingly, he arrested him on
10.10.2000. Based on Ext.P17(a) confession statement, stated to
have been given by the accused, MOs 2 to 5 were recovered as per
Ext.P3 mahazar. Based on Ext.P17(b) confession statement, MO1
chappals were recovered as per Ext.P1 mahazar. He prepared
Ext.P2 scene mahazar and recorded the statements of witnesses. He
filed Ext.P18 report before the court, seeking to have S.302 and 397
incorporated in the F.I.R. He obtained a site plan prepared by the
Village Officer. Further investigation was conducted by the
successor-in-office to PW18. He, after verification of the records, laid
charge before the court.
4. The Judicial First Class Magistrate, Manjeri, before whom
the final report was laid, took cognizance of the offence. On
appearance of the accused before the said court, all legal formalities
were complied with. The learned Magistrate found that the offences
are exclusively triable by a court of sessions and accordingly,
committed the case to the Sessions Court, Manjeri, as per S.209
Cr.P.C. The Sessions Court made over the case to the Additional
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Sessions Fast Track Court No.1(Ad hoc), Manjeri for trial and
disposal.
5. The court below found that the accused was unable to
engage a lawyer and therefore, the court appointed a State Brief to
appear on behalf of the accused. After hearing both sides, the court
framed charges for the offences punishable under S.302 and 397
IPC. To the charges, the accused pleaded not guilty and claimed to
be tried. The Prosecution, therefore, examined PW1 to PW18 and
had Exts.P1 to P19 marked. MO1 to MO19 were identified and
marked. After the close of the prosecution evidence, the accused
was questioned under S.313 Cr.P.C. He denied all the incriminating
circumstances brought out in evidence against him. The accused
maintained that he is innocent. According to him, he has been falsely
implicated in the case. Presumably finding that he could not be
acquitted under S.232 Cr.P.C., he was asked to enter on his
defence.
6. The accused chose to adduce no evidence, but he had
already got Exts.D1 to D4 marked. On a consideration of the
materials before it, the court below came to the conclusion that the
Prosecution had succeeded in establishing the case against the
Cr.A.2019/05 5
accused. The conviction and sentence already mentioned, followed.
The said conviction and sentence are assailed in this appeal.
7. That Selvarani is no more, is a question that is not in
dispute. She was staying with PW4, at the relevant time. The
Prosecution case, in brief is that she was done away by the
accused. To be more precise, after depriving her of her ornaments,
she was pushed into the river by the accused. She died of drowning.
8. The court below found that the evidence of PW3, PW5,
PW6, PW7, PW8 etc., taken along with the recovery of MO1 to MO4,
based on the alleged confession statement stated to have been
given by the accused are sufficient enough to fasten the liability on
the accused.
9. The State Brief appearing for the appellant before this Court,
pointed out that the court below was not justified in blindly accepting
the evidence of recovery against the accused. Though a few
witnesses said that they had occasion to see the accused and the
victim together for some time, on 7.10.2000, the same is not a
ground to come to a conclusion that the accused was responsible for
causing the death of the victim. The Prosecution has miserably
failed to show that there was any attempt from the part of the
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accused to forcibly remove her ornaments. There were no injuries
found on the body of the victim and the postmortem certificate
showed that she died of drowning. The court below was not justified
in invoking the “last seen” theory in this case. It is also submitted
that on a close scrutiny of the evidence, it can be seen that Ext.P6
cannot be the F.I. statement. Long before the preparation of Ext.P6,
it is clear from the evidence that the police were given detailed
information about the incident. The evidence of PW5 would clearly
show that the police had information about the missing of Selvarani,
in the night of 7.10.2000. It is very clear, according to the learned
counsel that the F.I. statement had been drawn up to suit the
convenience of the prosecution. The learned counsel pointed out that
the evidence available on records is totally insufficient to warrant a
conviction.
10. Per contra, the learned Public Prosecutor contended that
the court below has been careful enough to take into consideration
all items of evidence available before it. The Court below could not
have omitted to take note of the recoveries made on the basis of the
confession statement stated to have been made by the accused,
which were clinching items of evidence. There is also ample
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evidence to show that in the evening of 7.10.2000, the victim was
seen in the company of the accused and if that be so, it is for him to
explain, what had happened to the victim, thereafter. It is also clear
from the evidence that the victim and the accused had taken fancy
for each other. Summing up, the learned Public Prosecutor pointed
out that no grounds are made out to interfere with the judgment
under appeal.
11. Before going into the evidence in this case, it may be
noticed that the Prosecution relies on circumstantial evidence, to
prove the case against the accused. There are several decisions of
the Apex Court regarding the principles to be applied in cases, built
under circumstantial evidence. It is unnecessary to refer to all of
them. After referring to a number of decisions, the Apex Court, in
State of Goa v. Pandurang Mohite (AIR 2009 SC 1066) held as
follows :
“A reference may be made to a later decision in Sharad
Birdichand Sarda v. State of Maharashtra (AIR 1984
SC 1622). Therein, while dealing with circumstantial
evidence, it has been held that onus as on the prosecution
to prove that the chain is complete and the infirmity of
lacuna in prosecution cannot be cured by false defence or
plea. The conditions precedent in the words of this Court,
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before conviction could be based on circumstantial
evidence, must be fully established. They are :-
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned ‘must’ or ‘should’ and not ‘may
be’ established :
(2) 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 ;
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis
except the one to be proved and
(5) there must be a chain of evidence so complete as
not 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.”
12. PW1 and PW2 are witnesses to the recovery of MO1 and
MO2 to 4 respectively. Their evidence shall be dealt with in detail, a
little later.
13. PW3 would say that the victim was staying along with PW4
and that the victim used to wear gold ornaments. She identified MO2
to MO5 as the ornaments belonging to Selvarani. PW5 says that he
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resides in the same quarters occupied by PW4 and the victim.
Selvarani, the victim was found missing on 7.10.2000. He would
depose that on that day, he returned after work and went to sleep.
He was woken up by PW4, who told her that Selvarani was missing
and also that he had suspicion about a person. This witness claims
to have asked the accused as to where Selvarani was. It is alleged
that the accused replied that she had alighted a bus to
Vazhikkadavu. According to PW5, when he further asked the
accused, the accused told him that he had gone to Nilambur along
with Selvarani to see a movie. Since they did not get tickets for the
movie, they returned by bus and got down at Kurisinpadi. They went
to a nearby river to wash their face. This witness says that the
accused told him that Selvarani slipped into water and he could not
save her, inspite of his best efforts. This witness would also say that
at that time, the accused was seen, wearing wet clothes. PW6 claims
to have seen the victim at about 3 pm on the date of the incident. He
claims to have asked Selvarani, where she was going and she
replied that she was going to make a telephone call. He also says
that he saw the accused following Selvarani.
14. PW7 is another witness, who claims to have seen the
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accused in the company of the victim at about 5.10 pm on 7.10.2000.
He also claimed that the accused was accompanying her at the
relevant time. PW8 claims to have seen the accused and the victim
together at about 4.15 pm. He says that on several occasions, he
has noticed the victim, wearing a gold chain and ear studs. PW10 is
the person, to whom Selvarani was actually married to. His evidence
would show that leaving him and the children, Selvarani went with
PW4. He is the person, who received the dead body of Selvarani.
15. PW14 is an important witness. He says that he, PW3 and
the accused, stayed together. Selvarani and PW4 were staying in the
ground floor. He claimed that he and the accused go together for
work. On the date, on which Selvarani was found missing, this
witness would say that the accused had not come for work. He had
gone with PW14 in the morning, but after reaching the place of work,
the Supervisor instructed the accused to go elsewhere for work. He
claims that on 7.10.2000, when he and others returned after work,
they were told that Selvarani was missing. When they had gone in
search of her, all those witnesses would say that they were given to
understand that she was seen going with an umbrella at about 4 pm.
Cr.A.2019/05 11
Later, they met another person, who deposed that he had seen
Selvarani and she told him that she was going to make a telephone
call. This witness claims that PW7 told them that he had occasion to
see the victim and the accused together at about 5 pm., near a
theatre at Nilambur. PW14 asserted that he, along with PW4 and
another person, went to Nilambur. They returned at 9 pm. unable to
locate the lady. They opened the door and searched the room.
Everything was in place, but Selvarani was missing. According to this
witness, they found the accused standing near the bathroom. He
asked the accused whether he had occasion to see Selvarani.
Initially, though he pretended ignorance, later, he told that she went
to her native place by a bus. By that time, a few people gathered
there and they began to question the accused. When they found that
the accused was unable to answer them, this witness says that they
took the accused to the Police Station. PW17, who is a vendor in
flowers, would say that Selvarani had bought flowers from him and
she was accompanied by the accused.
16. PW1 claims to have seen the accused handing over MO1
series chappals to the police from a nearby bush. According to the
prosecution, the said pair of chappals belonged to Selvarani. PW2
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claims to have seen the accused handing over MOs 2 to 5 to the
police, by the accused. They are the gold ornaments which were
worn by the victim. PW18 speaks about the confession statement
stated to have been given by the accused. But, one cannot omit to
note that the postmortem report furnished by PW11 shows that the
death was due to drowning. Except for a small contusion on the
rightside of the chest, no other injuries were noticed on the body of
the victim. A scrutiny of the evidence of PWs 6, 7 and 8 would
indicate that they have all seen Selvarani, leaving her house between
3.15 and 5.15 pm. One may now refer to the evidence of PW5. He
says that while he was asleep in the evening of 7.10.2000, PW3 and
4 approached him and PW4 told him that Selvarani was missing and
that he had suspicion about a person with regard to the same. He
claims that they asked the accused where Selvarani had gone and
he replied that she alighted a bus to go to her native place. One
should remember that all these had happened before Ext.P6
F.I.statement was laid.
17. If one goes by the evidence of PW14, it is very clear that in
the night of 7.10.2000 itself, the accused was taken to the Police
Station. It is very clear from the evidence of the witnesses that the
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complaint was laid on the same night itself. The evidence of various
witnesses have been referred to in detail earlier. With that in mind, if
one looks at Ext.P6, it can be seen that the same could not have
been the F.I. statement as claimed by the prosecution. Ext.P6
contains none of the details spoken to, by the various witnesses and
it merely mentions that Selvarani was found missing. Of course, it
was mentioned that she was wearing gold ornaments.
18. There is absolutely no evidence regarding any attempt by
the accused to cause the death of Selvarani. One may recollect that
her body was found floating , two days after she was found missing,
in the Chaliyar river. Medical opinion is that she died of drowning.
19. Except for a contusion, as already stated, there are no
other injuries found on her body. There is absolutely no evidence to
show that after 5.15 pm on 7.10.2000, anybody had seen the
accused in the company of the victim. There is absolutely no
evidence to show that they had gone together near the river.
20. Under the above circumstances, it is extremely doubtful
whether the “last seen” theory can be invoked in the facts and
circumstances of this case. The said theory has been explained in
several decisions. It is unnecessary to refer to all of them. In the
Cr.A.2019/05 14
decision reported in Malleshappa v. State of Karnataka (AIR 2008
SC 69), it was held as follows :
“In the present case also, there is no proximity of time and
place. We have already noted that the dead body, even if it
is to be accepted, was that of the deceased Yankanna, had
been recovered after 10 days after the date on which the
deceased was last seen in the company of the appellant.
This singular piece of circumstantial evidence available
against the appellant, even if the version of PW10 is to be
accepted, is not enough. It is fairly well settled that the
circumstantial evidence in order to sustain the conviction
must be complete and incapable of explanation of any
other hypothesis than that of the guilt of the accused. It is
true as has been held by this Court in Lakshmi & Others
v. State of U.P. (2002) 7 SCC 198) that it is not an
inflexible rule that the identification of the body, cause of
death and recovery of weapon with which the injury may
have been inflicted on the deceased though, are factors to
be established by the prosecution but it cannot be held as
a general rule and broad proposition of law that where
these aspects are not established, it would be fatal to the
Cr.A.2019/05 15
case of the prosecution and in all eventualities, it ought to
result in acquittal of those who may be charged with the
offence of murder provided the charges against the
accused otherwise can be established on the basis of the
other reliable and trustworthy evidence.
25. There is no reliable and trustworthy evidence in
the present case. The High Court in the present case took
the view that as to what happened to the deceased-
Yankanna was within the knowledge of the appellant and
he having failed to explain and mutilated body of Yankanna
having been found, having shown that Yankanna had been
murdered, the only conclusion one can arrive at, is that
the appellant with the help of some others committed the
murder of Yankanna, cut off head and some part of the
body and threw the body in Ghataprabha river. Too many
surmises and conjectures ! it is highly dangerous to convict
any accused on the basis of which the High Court has
chosen to do so.”
In the decision reported in State of Goa v. Pandurang Mohite
(supra), it was held as follows :
“So far as the last seen aspect is concerned, it is necessary
Cr.A.2019/05 16
to take note of two decisions of this court. In State of
U.P. v. Satish (2005(3) SCC 114) it was noted as
follows :
“22. The last seen theory comes into play where the
time-gap between the point of time when the accused and
the deceased were seen last alive and when the deceased
is found dead is so small that possibility of any person
other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases to
positively establish that the deceased was last seen with
the accused when there is a long gap and possibility of
other persons coming in between exists. In the absence of
any other positive evidence to conclude that the accused
and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases.
In this case, there is positive evidence that the deceased
and the accused were seen together by witnesses PWs 3
and 5, in addition to the evidence of PW2. ”
17. In Ramreddy Rajesh Khanna Reddy v. State
of A.P.(2006(10) SCC 172), it was noted as follows ;
27. The last-seen theory, furthermore, comes into
Cr.A.2019/05 17
play where the time gap between the point of time when
the accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any
person other than the accused being the author of the
crime becomes impossible. Even in such a case, the courts
should look for some corroboration.”
21. Going by the principles laid down in the above decisions,
the “last seen” theory can be invoked only if the time lag between the
point of time when the accused and the deceased were last seen
alive and the time when the deceased was found dead, is so small
that the possibility of any other person than the accused, being the
author of the crime, becomes impossible. As noticed earlier, there is
absolutely no evidence at all in this case to show as to what has
happened after 5 pm on 7.10.2000. It is here that the absence of
evidence regarding the time of death of Selvarani assumes
significance. Merely because the accused was seen in the company
of Selvarani some time before she was found missing, it does not
automatically leads to the conclusion that he is the perpetrator of the
crime.
22. One may recall here that the prosecution has a case that
Cr.A.2019/05 18
the accused wanted to deprive the victim of her ornaments and in
that process, the accused caused her death by pushing her into the
river. If that be so, there would have been use of force by the
accused to remove the ornaments of Selvarani and she would have
certainly resisted. There is no evidence at all on any such resistance
and it is too much to believe that she would have voluntarily given all
her ornaments to the accused. It was suggested at the time of
hearing that it can be after the death of Selvarani, that the ornaments
could have been removed. The prosecution case is that after having
deprived Selvarani of all her ornaments, she was pushed into the
river. At the time of evidence, there was shift in the stand. The case
was that Selvarani had gone to the river to wash her face and hands.
While doing so, Selvarani slipped and fell into the river. If that be so,
the ornaments could have been removed only after the victim was
dead. It is too much to believe that after Selvarani drowned in the
river, the accused brought the body to the bank of the river, removed
the ornaments and threw her body back into the river. Then, the
recovery of MO1 assumes importance. Even according to the
prosecution, that is said to be the chappals worn by Selvarani. It is
rather inconceivable that a person, who wanted to cause the death of
Cr.A.2019/05 19
Selvarani and keep it as a secret, would have retained her chappals
as a memento. If he could push Selvarani into the river, he would
have easily thrown the chappals as well into the river. The recovery
of MO1 slippers, therefore, does not inspire confidence in the mind of
this Court.
23. Ext.P17(a) and (b) are the confession statements, stated to
have been furnished by the accused, which led to the recovery of
MO1 slippers, MO2 to MO5 gold ornaments and MO9 series dress,
which is said to have been worn by the accused. The relevant
portion of the confession statement reads as follows :
It must at once be noticed that none of the above statements
contains authorship of concealment. PW18 in his evidence also,
does not speak about the accused mentioning about authorship of
concealment. If the statements given by the accused, which led to
the recovery of the material objects, do not contain the authorship of
Cr.A.2019/05 20
concealment, they cannot fall under S.27 of the Indian Evidence Act.
In this context, it will be useful to refer to the relevant decisions. In
the decision reported in George v. State (2005(3) KLJ 593), a
Division Bench of this Court has held as follows :
“A reading of the confession alleged to have been
made by the appellant shows that he had not stated
anything about the concealment of those articles. He only
stated that if he was taken to the place, he will show the
articles. One of the primary requisites to make recovery in
pursuance of the confession made by the accused under
Section 27 of the Evidence Act, the authorship of the
concealment of articles must be proved. Unless the
authorship of concealment is established, the recovery in
pursuance of the information stated to have been
furnished by the accused will not fall under discovery as
envisaged under Section 27 of the Indian Evidence Act.”
In Sankaranarayanan v. State of Kerala (2006(3) KLT 429), a
Division Bench of this Court has held as follows :
“We would have examined the respective contentions of
the learned counsel based upon the two decisions as
mentioned above in greater details, but there may be no
Cr.A.2019/05 21
necessity to do so as a Division Bench of this Court in
George @ Kunju v. State in Cri.Appeal No.15 of 2003
decided on 8th September, 2005 has dealt with this
controversy and observed as follows :
‘The decision rendered in Suresh’s case (supra) was
followed in David Rozario’s case (supra) also. But the
decisions in Suresh’s case and David Rozario’s case were
rendered by a Bench consisting of two judges. In Jaffer
Hussain Dastgir’s case (supra) and Mahabir Biswas’ case
(supra) the decisions were rendered by a Bench consisting
of three Judges. We respectfully follow the decisions
rendered by the Larger Bench and hold that unless the
authorship of concealment is established, the recovery in
pursuance of the information stated to have been
furnished by the accused will not fall under ‘discovery’ as
envisaged under S.27 of the Indian Evidence Act.”
Before arriving at the conclusion as reproduced
above, the Division Bench of this Court relied upon a
number of Supreme Court decisions in Jaffer Hussein
Dastagir v. State of Maharashtra (AIR 1970 SC 1934),
Mohammed Inayattullah v. State of Maharashtra (AIR
Cr.A.2019/05 22
1976 SC 483), Bahadul v. State of Orissa (AIR 1979 SC
1262), Pohalya v. State of Maharashtra (AIR 1979 SC
1949), Dudh Nath Pandey v. State of U.P.(AIR 1981 SC
911), Fr.George Cherian v. State of Kerala (ILR 1989(2)
Kerala 95), Mahabir Biswas v. State of W.B. (1995)2 SCC
250 and P.P.Mundra etc. v. State of Rajasthan & Anr. etc.
(JT 1998 (1) SC 659). We are in respectful agreement with
the view expressed by the Division Bench as quoted above
and thus hold that the admissible part of the statement
made by A1 pursuant to which the alleged crime gun was
recovered, only proves that he knew that the gun was
recovered only proves that he knew that the gun was
concerned from where it was taken at his instance, but on
such knowledge, no interference of committing the murder
can be drawn. One of the primary requisites to make a
recovery under S.27 of the Evidence Act is that the
authorship of concealment of articles must be proved.”
Going by the principles laid down in the above decisions, it follows
that the statement leading to the recovery of the material objects
cannot fall under S.27 of the Evidence Act. However, as noticed in
the decisions reported above, even assuming S.27 of the Indian
Cr.A.2019/05 23
Evidence Act cannot be taken aid of, the act of recovery based on
the conduct of the accused becomes relevant under S.8 of the Indian
Evidence Act.
24. The only item of evidence therefore, is the recovery of MO2
to MO5 at the behest of the accused. It has also to be noticed that
the recovery of the slippers cannot be accepted. The conduct of the
accused which becomes relevant under S.8 of the Indian Evidence
Act, by itself is insufficient to fasten the liability on him. The evidence
of PW4 would clearly show that the accused was taken to the police
station on 7.10.2000 itself and the police were appraised of the entire
facts and circumstances. It is surprising to note that the next day, i.e.,
on 8.10.2000, when PW4 gave a statement, it is recorded as the first
information statement. The assertions of PW16 and PW18 that they
had no information about the incident, before Ext.P6 was lodged,
cannot be obviously true. This creates considerable doubt regarding
the prosecution case. The case of the prosecution that the accused
was arrested on 10.10.2009 cannot be readily accepted. One must
remember that the body of Selvakumari was found floating in the
river on 09.10.2000. The result is that :
1. The last seen theory cannot be accepted for reasons already
Cr.A.2019/05 24
mentioned.
2. The recovery of MO1 slippers is most unconvincing.
3. There is no evidence at all to show as to how the accused
came into the possession of MO2 to MO5.
The ornaments are stated to have been belonging to Selvarani.
No injuries were found on the body of the victim, corresponding to
any force that would have been exerted by the accused to remove
the ornaments. Nobody has a case that the victim voluntarily handed
over the ornaments to the accused.
25. There is absolutely no evidence to show that the death of
Selvarani occurred within a short while, after she and the accused
were seen together so as to draw the conclusion that no one else
could have been intervened and caused the death of Selvarani.
Since there is suspicion in the recording of F.I. statement, it is unsafe
to rely on the evidence of PW16 and PW18. We are, therefore,
unable to accept the findings of the court below that the prosecution
has succeeded in establishing the case against the accused. It may
be that the prosecution had been able to show that it might have
been the accused, who had caused the death of Selvakumari. That
is far from saying that he must have done it. Unfortunately for the
Cr.A.2019/05 25
prosecution, the test is that he must have done it.
26. In the result, the appeal is allowed. The conviction and the
sentence imposed by the court below are set aside. The accused
stands acquitted for the offences punishable under S.302 and 397
IPC. He shall be set at liberty unless his presence is required in any
other case. Any payment made by him towards fine, shall be
refunded to him.
K.BALAKRISHNAN NAIR, JUDGE
P.BHAVADASAN, JUDGE
sta
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