IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 330 of 2005()
1. KRISHNANKUTTY @ KOKKO KRISHNAN,
... Petitioner
2. SURENDRAN @ PETTI SUREN,
Vs
1. STATE OF KERALA - REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.M.RAJAGOPALAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :12/12/2006
O R D E R
J.B.KOSHY & K.PADMANABHAN NAIR, JJ.
-------------------------------
CRL.APPEAL.NO.330 OF 2005 ()
-----------------------------------
Dated this the 12th day of December, 2006
J U D G M E N T
PADMANABHAN NAIR, J.
Accused 1 and 2 in S.C.No.202/2002 on the file of the
Additional Sessions Judge (Fast Track Court-I),
Thiruvananthapuram are the appellants. They have filed this
appeal challenging the conviction and sentence imposed on
them under Sections 302 and 201 read with Section 34 of the
Indian Penal Code. Sessions Judge found appellants guilty of
offences punishable under Section 302 read with 34 of I.P.C.,
convicted and sentenced to undergo imprisonment for life and
to pay a fine of Rs.25,000/- each. In default of payment of fine
they were directed to undergo rigorous imprisonment for two
years each. They were also found guilty of the offences
punishable under Section 201 read with 34 of I.P.C., convicted
and sentenced to undergo rigorous imprisonment for two years
each and to pay a fine of Rs.5,000/- each. In default of
CRL.APPEAL.NO.330 OF 2005 ()
2
payment of fine they were directed to undergo rigorous
imprisonment for three months each.
2. Prosecution case is as follows: Deceased Raveendran
as well as five accused involved in this case were persons who
were eking their livelihood by distilling of illicit arrack.
Deceased Raveendran used to commit theft of wash stored in
tanks by accused. They became inimical and formed
themselves into an unlawful assembly at about 5.30 p.m. on
29.10.1998 armed with deadly weapons like fire wood at river
purampokku on western side of a rubber estate belonging to
one Sulochana. On that day A2 to A4 were engaged in the
process of manufacturing illicit liquor. Deceased came there
before 2 p.m. A2 to A4 asked him to sit there and he was given
food. At about 5.30 p.m. the 1st appellant who was the 1st
accused came there. He questioned A2 to A4 why the
deceased who committed theft of wash was allowed to sit
there. Deceased uttered obscene words against A1. A1 beat
Raveendran with a piece of fire wood which was a weapon of
CRL.APPEAL.NO.330 OF 2005 ()
3
dangerous nature. Raveendran fell down and became
unconscious. Accused called him. But he did not respond.
They were under the impression that Raveendran had passed
away. They concealed his dead body in the nearby bushes and
informed A5. On the next day at about 12 noon all accused
together tied both hands and legs of Raveendran to a trunk of
tree which was submerged at the bottom of Karamana river.
Raveendran died due to drowning.
3. PW1, son of deceased Raveendran gave Ext.P1
F.I.Statement before PW29, Head Constable of the Aryanad
police station at about 11.30 a.m. on 9.11.1998. He stated that
Raveendran was missing from 29.10.1998 at 8.30 a.m.
onwards. Based on Ext.P1 F.I.Statement PW29 registered
Ext.P1(a) F.I.R. as Crime No.313/98 under the caption “man
missing”. Subsequently investigation was taken over by
PW30, Assistant Sub Inspector. He questioned witnesses and
took their statements. Thereafter investigation was taken over
by PW32, Circle Inspector of Police on 8.3.1999. He questioned
CRL.APPEAL.NO.330 OF 2005 ()
4
witnesses. On 17.3.1999 he arrested all accused from the
house of A5. They confessed on having committed the offence.
Based on the information furnished by A2 that fire wood used
by A1 for beating Raveendran was thrown by him in a rubber
estate, a search was conducted and MO3 firewood was seized
under Ext.P18 seizure mahazar. Further case of prosecution
was that A1 and A5 confessed for having taken the dead body
of Raveendran and trying same to the trunk of a tree which
was sub merged at bottom of river. The tree trunk could not
be seized. In the meanwhile, one Surendran Nair gave Ext.P22
F.I.statement before Sub Inspector of Police, Aryanad Police
station, at 8 p.m. On 4.3.1999. It was stated that he saw a
deadbody of a person floating in the Karamana river. Based on
Ext.P22 Statement Ext.P22 (a) F.I.R. was registered. The
deadbody was taken out of water. On 5.3.1999 PW2 conducted
inquest on the deadbody. Thereafter PW18 doctor conducted
post mortem examination and issued Ext.P12 Post Mortem
certificate. Superimposition technique was adopted. A part of
investigation was conducted by PW32 and PW33.
CRL.APPEAL.NO.330 OF 2005 ()
5
Investigation was completed by PW36, Assistant
Superintendent of Police. PW34 filed the final report. The
accused were arrested and subsequently released on bail.
The learned Magistrate committed the case to the court of
Sessions after observing formalities. Learned Sessions Judge
made over this case to Additional Sessions Judge for trial.
When the appellant and other accused appeared before the
learned Sessions Judge, charges under Sections 143, 147, 148,
201 and 302 read with 149 of I.P.C. were framed after hearing
both sides. Charges were read over and explained to accused.
They pleaded not guilty.
4. On the side of the prosecution, PWs.1 to 36 were
examined, Exts.P1 to P27 proved and marked and MOs.1 to 7
identified. After the prosecution evidence was over, accused
were questioned under Section 313 of the Criminal Procedure
Code. They denied all allegations levelled against them. Since
no grounds were made out to acquit accused under Section
232 of Cr.P.C., they were called upon to enter on into their
CRL.APPEAL.NO.330 OF 2005 ()
6
defence. DW1 was examined and Exts.D1 to D5 series proved
and marked. When the case was posted for defense evidence,
a report was submitted by the counsel for the 3rd accused
stating that 3rd accused died on 8.11.2004. The police after
verification submitted that A3 died on 8.11.2004. So charges
against A3 abated. Learned Sessions Judge found A1 and A2
guilty of the offence punishable under Sections 302 and 201
read with Section 34 of the I.P.C. All accused were found not
guilty of the offences under Section 143, 147, 148 and 149 and
acquitted.
5. Heard Sri.M.Rajagopalan Nair counsel for the
appellants and Sri.K.C.Santhosh Kumar, Public Prosecutor.
6. The learned counsel appearing for the appellants has
argued that there is absolutely no evidence to support the
findings of the court below that appellants are guilty of the
offences punishable under Section 302 and 201 of I.P.C. read
with 34 of I.P.C. It is argued that there is no convincing
CRL.APPEAL.NO.330 OF 2005 ()
7
evidence to show that Raveendran died at 5.30 p.m. on
29.10.1998. It is argued that even according to the
prosecution, Raveendran died not because of any injuries
sustained by him but because of drowning. It is argued that in
absence of any material to hold that the appellants applied
force to keep the body of Raveendran under water so as to
cause suffocation the appellants cannot be convicted for the
offence punishable under Section 302. It is argued that even
accepting the entire prosecution case as such no offence
under Section 302 of I.P.C. is made out in this case. It is
pointed out that the prosecution case was when deceased
came to the place of occurrence A1 and A5 were not there.
The other accused gave deceased food and while Raveendran
was taking food A1 came there. A1 questioned accused nos.2
to 4 why they served food to a person who was steeling their
wash. The deceased called A1 names. A1 took out a fire
wood lying there and beat Raveendran. A1 to A4 tried to wake
him up. There was no respondence. Accused assumed that
Raveendran passed away. They concealed the deadbody
CRL.APPEAL.NO.330 OF 2005 ()
8
among the bush and on the next day tied the same to the trunk
of submerged timber piece. He fell unconscious. It is also
argued that there is no evidence to hold that deceased was last
seen in the company of the accused. It is argued that it is a
case which the prosecution attempted to prove by direct
evidence. It is argued that if the prosecution wanted to prove
the guilty of accused by adducing direct evidence thereafter
the accused cannot be convicted relying on circumstantial
evidence. Prosecution case is that deceased Raveendran told
his family members that he was going for manual labour left his
house at about 8.30 a.m. on 29.10.1998. Ext.P1 F.I.statement
was recorded at 11.30 a.m. on 9.11.1998. In Ext.P1 also it was
stated that deceased left the house at 8.30 a.m. on 29.10.1998
stating that he is going to do manual labour. On 4.3.1999 the
deadbody was found floating in the Karamana river. The
deadbody was completely decomposed and beyond
recognition. A crime was registered under the caption “man
missing”. Ext.P2 inquest was conducted on 5.3.1999. The son
of the deceased identified dead body as that of Raveendran.
CRL.APPEAL.NO.330 OF 2005 ()
9
Thereafter post mortem examination was conducted. Ext.P12
is the post mortem certificate. The following injuries were
noted by PW18, in Ext.P12 post mortem certificate. PW18
proved the post mortem certificate also. The following were
the findings:
“Body was that of an adult male in a state of
advanced decomposition. Both forearms, hands and
feet were missing without any infiltration of blood
around. The available portion measured 157 cm in
length and 46 kgm in weight. Head, both arms and
legs were completely skeletonised with adipocere
formation on the trunk and thighs. Eyeballs were
softened, glabella and superciliary ridges were
prominent. Frontonasal junction was distinct with
rounded orbital margins. The zygoma and mastoid
processes were prominent with deep digastric grooves.
The chin was square in shape with everted angles. The
ental formula was as follows:-
-- 17 16 15 -- -- -- -- | -- -- -- 24 25 26 27 28
38 37 36 35 34 33 32 31 | 41 42 43 44 45 -- 47 48
The teeth showed moderate periodontosis with
brownish stains on the inner aspect and were loose.
The sockets of left upper central incisor and that of first
molar on left lower quadrant were completely
resorbed. The other empty sockets showed
postmortem loss of teeth. The sagittal and coronal
sutures fused completely internally but externally their
fusion was not complete. Xiphisternum fused with the
CRL.APPEAL.NO.330 OF 2005 ()
10
body and manubrium has not fused. A few black hairs
3 – 4 cm in length were present on the public region
and were loose. External genitalia was missing and the
surrounding tissues did not show any infiltration of
blood. The pelvic cavity was deep with narrow inlet
and outlet. The curvature of sacrum was uniform and
greater sciatic notch and subpubic angle were acute
(Body was not kept in cold room).
Antemorem injuries to soft tissues if any, could
not be detected due to decomposition changes. No
injury was noted to the available bones.
The skull was intact and the brain was in a
liquified stage having passages including hyoid bone
were missing. The air passages contained fine sand
articles in the major divisions with decomposition of its
mucosa. The chest cavities contained 30ml of thick,
brownish fluid on each side. Lungs were dark, soft and
pulpy. Stomach was empty without any peculiar smell,
mucosa decomposed. All other internal organs were in
an advanced state of decomposition. Viscera and long
bone (as requested by the investigating officer) have
been preserved and sent for chemical analysis. Tissue
bits and water sample were also forwarded to the
Chemical examiner’s Laboratory for doing diatom test.
Tooth Nos.(31) and (41) were subjected to Gustafson’s
technique of age determination and the age could be
471 5 years. The skull and mandible have been
forwarded to the Forensic Science Laboratory for
superimposition technique as requested by the
investigating officer.”
PW18 opined that death might have occurred between three
weeks and three months prior to the date of the post mortem
CRL.APPEAL.NO.330 OF 2005 ()
11
examination. Cause of death was stated as drowning.
Prosecution case was that the victim was missing from
29.10.1998 onwards. Identity of the deadbody as that of
Raveendran was satisfactorily established by Superimposition.
Ext.P15 and P16 series are prints and negatives of the photos
taken after superimposition. From the medical evidence alone
it is not possible to held that it was a case of homicide.
7. There is no eye witness to the entire incident.
According to prosecution, PW3 had seen a part of incident and
PWs.7 and 8 saw deceased in the company of accused and
that will show that it was the accused who murdered
Raveendran. PW7 deposed that at about 2 p.m. on
29.10.1998 he along with his uncle Chellan and Ratheesh went
to forest for cutting timber for repairing house. On their way
back he saw deceased and four persons sitting together.
Chellan asked them whether it was possible to give him some
arrack. They did not say anything. According to him, the
persons found there was A1 to A4. Admittedly A5 was not
CRL.APPEAL.NO.330 OF 2005 ()
12
there at that time. Raveendran and acused were chatting and
appeared to be in cordial terms. During cross examination he
had admitted that he was questioned by police about six
months after death of Raveendran. Evidence shows that he
was not capable of speaking about various months in
Malayalam or English calender. According to him he along with
others were walking along the opposite side of the river when
accused and deceased were sitting. Width of the river at that
place was more than 30 metres. PW7 further stated that on
the next day itself he told the wife and children of Raveendran
that he saw Raveendran in the company of accused. But he
had not inform the police. It is also very pertinent that Ext.P1
F.I.Statement was given by the son of the deceased only on
9.11.1998 and on that day he did not say anything about the
information given to him by PW7.
8. According to the prosecution PWs.7 and 8 came
together. PW8 also deposed that he had seen deceased along
with the company of accused Nos.1 to 4. He saw the deceased
CRL.APPEAL.NO.330 OF 2005 ()
13
on 29.9. but he did not remember the year. He also deposed
that he had seen four persons. He also deposed that on the
third day he informed wife and children of missing person
about the fact that he had seen Raveendran in the company of
A1 to A4. According to him he was questioned by police about
two months after date of occurrence and again questioned
after a lapse of about three months. But on 5.3.1994 the police
had no information regarding the story spoken to by PWs.7 and
8. PW7 had admitted that his eye sight was very poor. He
admitted that he went to forest for committing theft of timber
and normally he will not go to forest for committing theft
during day time. He admitted that the names of the accused
were told by him as requested by the children of deceased.
He had admitted that on the previous day of his examination
he came to court along with son of deceased and Aryanad
Police tutored him. When he was cross examined with
permission he was unable to read the date looking into
calender or time shown in the clock fixed on the wall of the
court hall as his eye sight was poor. So no reliance can be
CRL.APPEAL.NO.330 OF 2005 ()
14
placed on the evidence of PWs.7 and 8. We disbelieve their
evidence. Even if their evidence is accepted the same is not
sufficient to convict the appellants. According to PWs.7 and 8
they saw deceased and A1 to A4 sitting together at 2 p.m. PW3
deposed that he had seen deceased alive at 5.30 p.m. on
that day. PW3 deposed that he had seen the deceased along
with accused Nos.1 to 4 at about 5.30 p.m. on 29.10.1998.
PW3 was attending the call of nature. He heard somebody
calling names and looked towards the direction from where
sound came. Then he saw accused and deceased on the
opposite side of river. He deposed that A1 bet Raveendran
and he fell down. PW3 also deposed that others asked
Raveendran to get up. But he did not get up. So PW3
suspected some foul play and left the place immediately.
According to him all the five accused were there. During cross
examination he had admitted that the Circle Inspector
conducted search in his property and questioned him. But he
did not disclose anything about the incident which he had seen
to anybody including Circle Inspector of Police. PW3 had
CRL.APPEAL.NO.330 OF 2005 ()
15
deposed that there was a rumor that deceased was kept away
by his family members. He deposed that he was called to the
police station. At that time one police constable by name
Basukutty asked him to divulge any information he knows
about the missing man. So he went to the Circle Inspector
and gave the details. He had admitted that the Circle Inspector
asked him to say the names of five accused. Evidence of PW3
shows that distance between the place of occurrence and the
place where he was standing was more than 50 metres. During
cross examination he deposed that he was going to another
place to seek the assistance of one Narayanan for retrieving
timber from river. But he did not state that fact to the police.
He had also admitted that normally it was not necessary for
him to go to that place and he happened to be there only
because he was passing through that place. The details given
by PW3 about the person whom he wanted to meet shows that
he was not speaking truth. Evidence of PW3 appears to be
highly artificial especially his conduct in not disclosing the
names of the assailants to the relatives of deceased or to the
CRL.APPEAL.NO.330 OF 2005 ()
16
police immediately after the incident. So no reliance can be
placed on the evidence of PW3 also. It is not possible to hold
that deceased was seen last in the company of accused by
PW3 at about 5.30 p.m. on 29.10.1998. It is not possible to
convict the appellants based on the uncorroborated testimony
of PW3 alone.
9. Apart from the evidence of PW3 the only other piece of
evidence relied on by the prosecution is the recovery of MO3
firewood. Prosecution case was that it was A1 who bet
deceased with MO3. But the same was recovered in pursuance
of the information furnished by 2nd accused. Ownership of
concealment was also proved. Learned Public Prosecutor has
argued that even assuming that recovery of MO3 cannot be
considered as a recovery contemplated under Section 27 of the
Evidence Act the fact that accused pointed out the place to
police from where MO3 was recovered is a relevant fact
admissible under Section 8 of the Evidence Act. The seizure of
MO3 alone is not sufficient to convict the accused. So finding
CRL.APPEAL.NO.330 OF 2005 ()
17
of learned Sessions Judge that appellants are guilty of the
offences under Sections 302 and 201 read with 34 of the Indian
Penal Code are unsustainable and liable to be set aside. We
do so.
In the result the Crl.Appeal is allowed. Conviction and
sentence imposed on the appellants under Sections 302 and
201 of the Indian Penal Code are hereby set aside. They are
found not guilty of those offences and acquitted. Fine, if any,
paid by them shall be refunded. They shall be released from
jail forthwith if their continued detention is not required in
connection with any other case.
J.B.KOSHY, JUDGE
K.PADMANABHAN NAIR, JUDGE
prp
J.B.KOSHY & K.PADMANABHAN NAIR, JJ.
——————————————————–
O.P.NO. OF 2006 ()
———————————————————
J U D G M E N T
———————————————————
17th November, 2006