IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 262 of 2007()
1. STATE OF KERALA
... Petitioner
Vs
1. SHAJI
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :12/02/2007
O R D E R
J.B. KOSHY and T.R.RAMACHANDRAN NAIR, JJ.
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Crl. Appeal No. 262 of 2007 and
Crl.M.Appln.No.64 of 2007
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Dated this the 12th day of February, 2007
Judgment
Koshy,J.
Crl.M.Appln.No.64 of 2007 is a petition for
condoning the delay of 347 days in filing the appeal.
Even that petition and appeal were re-filed after 45
days of time given for curing the defect as appeal was
filed with defects. The petition to condone the delay of
45 days in re-presenting the appeal was allowed. When
the petition for condoning the delay of 347 days in
filing the appeal was posted, we had directed the Public
Prosecutor to find out the prima facie nature of the case
so as to issue notice in the case.
2. We have heard the Public Prosecutor on
merits also. The reasons stated for condoning the delay
is that there is heavy work in the office of the Public
Prosecutor. That is not at all a justifiable ground for
condoning the long delay. The above reason can be given
in all cases making the time limit fixed by the Statute a
mockery. We are of the opinion that no sufficient reasons
were given for condoning the delay. Therefore, delay
Crl.A.No.262/2007 and
Crl.M.Appln.No.64/2007 2
condonation petition and consequently the appeal is
liable to be dismissed. However, since it is a murder
case to satisfy whether any injustice will be caused by
dismissing the appeal on the ground of delay, we have
gone through the merits of the matter also.
3. It is settled law that an order of
acquittal can be interfered by this court in appeal only
if the findings of the trial court are perverse or
patently illegal. Law in this regard is summed up in M.S.
Narayana Menon @ Mani v. State of Kerala and another
((2006) 6 SCC 39). If the trial court took a possible
view, appellate court will not interfere even if another
view is also possible. In this case, there is no ocular
evidence. For convicting the accused guilty on the basis
of circumstantial evidence, court should be satisfied
that all the links in the chain are complete and only
hypothesis possible on the basis of the evidence adduced
is that accused and accused alone is guilty of the
offence (See: C.K. Raveendran v. State of Kerala – JT
1999 (9) SC 408 and Jaswant Singh v. State (Delhi
Administration) – AIR 1979 SC 190). It is said that
circumstantial evidence should be like spiders web
leaving no exit for the accused to step away. It should
not only consistent with the guilt of the accused, but,
Crl.A.No.262/2007 and
Crl.M.Appln.No.64/2007 3
should be inconsistent with his innocence (See:
Mangleshwari Prasad v. State of Bihar – AIR 1954 SC 715).
In a case of circumstantial evidence, the Court has to be
on its guard to avoid damages of being swayed by
emotional considerations (See: Balwinder Singh v. State
of Punjab – AIR 1996 SC 607). It has been repeatedly
held by the Supreme Court that the distinction between
‘may be true’ and ‘must be true’ is long and divides
vague conjectures from sure considerations and each link
must be covered by clear and unobjecting evidence by the
prosecution before the accused is condemned as a culprit.
4. Prosecution relied on only three circumstances for commission of the crime. According to
the prosecution, deceased Sarala, belonging to a
scheduled caste community, fell in love with the brother
of the accused who belonged to Thiyya community (OBC).
This is the reason stated for commission of the crime,
but, there is no evidence to prove that because of that
the accused was having enmity with the deceased Sarala.
Merely because the accused belonged to Thiyya community
and Sarala belonged to scheduled caste, motive of the
crime cannot be inferred on the accused. Some financial
transaction of the deceased was also suggestive of motive
and even though four witnesses were examined to prove the
Crl.A.No.262/2007 and
Crl.M.Appln.No.64/2007 4
same, all of them became hostile and none of them
supported the case of the prosecution. The failure to
prove motive is not fatal or indispose for the
prosecution if there are either documentary or
circumstantial evidence conclusively proving the guilt of
the accused, but, when the proof of murder case recorded
on circumstantial evidence, motive plays an important
role. Even if motive is proved, that alone will not make
a man guilty of a crime. It is only one of the links.
Second circumstance relied on by the prosecution is the
extra-judicial confession made by the accused to the
police officer as well as to a friend of the accused,
namely, PW3. The alleged crime was committed in the
local jurisdiction of Kuttippuram police station.
According to the prosecution, the accused went to Tirur
police station and met the Sub Inspector of Police and
PW1 made the confession and Ext.P1 FIR was registered on
that confession. But, the F.I. statement was not marked.
Even though the statement of the accused can be used for
registering the FIR, the incriminating circumstances
alleged to have stated by the accused to the police
officer is not admissible in evidence in view of section
25 of the Evidence Act. When the accused himself gives
the first information report, the fact of his giving the
Crl.A.No.262/2007 and
Crl.M.Appln.No.64/2007 5
information is admissible against him under section 8.
But, a confessional FIR by the accused to the police
cannot be used against him in view of section 25 as held
by the Apex Court in Aghnoo Nagesia v. State of Bihar
(AIR 1966 SC 119) and Khatri Hemraj Amulakh v. State of
Gujarat (AIR 1972 SC 922). Here, even making of any
confession as recorded in the FIR is not proved. Public
Prosecutor cited the decision of a Division Bench of this
court in Seethamaniyan v. State of Kerala (1996 (1) KLT
313) stating that if the police officer is not in charge
of investigation, the prohibition under section 25 of the
Evidence Act is not attracted. In that case, the
accused, after committing the crime, went to an I.P.S.
officer’s house who was only in charge of the
administrative functions and not entrusted with
investigation and made the confession. Therefore, the
statement was given to him not as a police officer, but,
as a neighbour and at that time, the concerned IPS
officer had no power of investigation as he was working
in the administrative post and, therefore, the court held
that he was not a police officer for the purpose of
section 25. In this case, admittedly, PW1 is a police
officer who has got power of investigation. In fact, the
statement given by PW1 was considered and FIR was
Crl.A.No.262/2007 and
Crl.M.Appln.No.64/2007 6
registered and, therefore, admission given to that police
officer is not admissible against accused. The Judicial
Magistrate also was not called to record the confession.
Therefore, the alleged extra-judicial confession to the
police officer is not admissible in evidence. PW3 stated
that somebody telephoned as Shaji and stated that he has
committed the crime. Even though it is submitted by PW3
that he is a friend of the accused, it cannot be stated
that he understood the voice of Shaji and there is no
evidence to prove that Shaji himself telephoned even if
that telephone conversation is correct. Extra-judicial
confession is a weak piece of evidence as held by the
Apex Court in Jagta v. State of Haryana (AIR 1974 SC
1545). Telephone conversation which is not proved to
have been made by the accused cannot be stated to be an
admission so as to connect the accused with the crime.
At the maximum, even if it is proved, it can be taken as
a corroborative evidence if there are any other
substantive evidence. Extra-judicial confessions stated
to be made by the accused to PW3 is not enough to connect
the accused with the crime.
5. Third circumstance relied on by the
prosecution is the res gestae statement said to have been
given to PW10 by the deceased. PW10 is the son of a
Crl.A.No.262/2007 and
Crl.M.Appln.No.64/2007 7
nearby grocery shop. At about 11.30 a.m., Sarala came
to the shop for purchasing grocery items and told PW10
that younger brother of Sajayan came. Even if that part
is admissible, it is not a res gestae evidence. ‘Res
gestae’ doctrine as enshrined in section 6 of the
Evidence Act is an exemption to the general rule that
hearsay evidence is not admissible, but, it is necessary
that such fact or statement must be part of same
transaction. Statement allegedly made by the deceased to
PW10 is not part of the offence or incident. It was held
in Bhaskaran v. State of Kerala (1985 Crl. L.J. 1711) as
follows:
“The statement or declaration would
be relevant and admissible as res gestae
under section 6 Evidence Act read with
Illustration (a) thereof only if it was
that of a person who had seen the actual
occurrence and uttered it spontaneously
and simultaneously with the incident or so
soon thereafter as to make it reasonably
certain that the speaker was till under
the stress of the excitement caused by his
having seen the incident. A mere
narration about a prior event should not
Crl.A.No.262/2007 and
Crl.M.Appln.No.64/2007 8
be covered by the provision. Similarly,
statement by persons other than the one
who witnessed it would only be hearsay.”
PW10 stated that he has not seen the accused anywhere in
the shop or nearby. PW10 specifically stated that he has
not seen the accused on that day. Therefore, a mere
statement by the deceased that brother of her lover came
(when and where were not revealed) cannot connect the
accused with the crime. When and where brother of
Sajayan came etc. was not revealed by her. Therefore, it
has no connection at all with the incident and cannot be
treated as res gestae event to connect the accused with
the crime. Opinion as to cause of death mentioned in
Ext.P19 postmortem certificate is that deceased died due
to strangulation. MO3 thorthu was found near the dead
body in that room and probable time of death is not
mentioned in the postmortem certificate. Nobody has also
seen the accused with the deceased on that day. When the
accused made the alleged confession before PW1 and dress
was taken into custody as MOs 1 and 2, but, no blood was
detected in the dress of the accused. According to the
accused, PW1 forcefully obtained the signature in a blank
paper which is used as confession. None of the three
circumstances were proved in this case and it is not
Crl.A.No.262/2007 and
Crl.M.Appln.No.64/2007 9
proved by the prosecution that there is conclusive
evidence that accused is guilty and accused alone is
guilty. Therefore, acquittal of the accused by the trial
court cannot be said to be wrong in any aspect.
Therefore, there is no merit in the appeal.
In the result, the delay condonation petition
and the appeal are dismissed.
J.B.KOSHY
JUDGE
T.R.RAMACHANDRAN NAIR
JUDGE
vaa
Crl.A.No.262/2007 and
Crl.M.Appln.No.64/2007 10
J.B. KOSHY AND
T.R.RAMACHANDRAN NAIR, JJ.
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Crl.Appeal No.262/2007
and
Crl.M.Appln.No.64/2007
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Judgment
Dated:12th February, 2007