High Court Kerala High Court

State Of Kerala vs Shaji on 12 February, 2007

Kerala High Court
State Of Kerala vs Shaji on 12 February, 2007
       

  

  

 
 
  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.

——————————-

Crl. Appeal No. 262 of 2007 and

Crl.M.Appln.No.64 of 2007

——————————-

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.

————————–

Crl.Appeal No.262/2007

and

Crl.M.Appln.No.64/2007

————————–

Judgment

Dated:12th February, 2007