IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1378 of 2005()
1. THANKACHAN, S/O.PAULOSE,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :25/09/2009
O R D E R
K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ.
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Crl.Appeal.No.1378 of 2005.
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Dated this the 25th day of September, 2009.
J U D G M E N T
Gopinathan, J.
The Circle Inspector of Police, Kanjar accused the appellant and two
others for offences under Section 201, 302, 376 and 392 r/w 34 IPC. They
were prosecuted before the Additional Sessions Court (Adhoc-I),
Thodupuzha. The learned Addl.Sessions Judge, after due trial found that
the prosecution had succeeded only to establish offences under Sec.302 IPC
against the appellant (1st accused). Consequently, the appellant was
convicted for offence under Sec.302 IPC and sentenced to imprisonment
for life and a fine of Rs.10,000/- with default clause to undergo rigorous
imprisonment for one year more. For the other offences the appellant was
acquitted. The other two accused were acquitted for all offences.
2. The above conviction and sentence are now assailed by the 1st
accused.
3. The prosecution case is that the appellant and the acquitted
accused were friends and that the appellant who was married, fell in love
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with one Syamala, who is the sister of Pw2. Syamala was working as Home
Nurse. On 28.11.2000 Syamala had been to the appellant and they went for
first show film at New Theatre, Thodupuzha. After the film, by about 9 pm.
they took their food from Hotel Sofia International near the vegetable
market at Thodupuzha. After taking food the appellant and deceased
Syamala proceeded to Muttom in an autorickshaw driven by the 2nd accused.
The appellant and Syamala alighted down at the banks of the
Moovattupuzha irrigation canal near the Malankara Rubber Estate. The 2nd
accused was sent by the appellant to fetch the 3rd accused. Before the 2nd
accused returning with 3rd accused, appellant had sexual intercourse with
Syamala. When the accused 2 and 3 returned, the appellant offered
Syamala to them. Since Syamala declined, the 2nd and 3rd accused committed
rape. Thereafter, by about 11.30 pm, the appellant had second round of sex
with Syamala. Then with intent to rob, the appellant committed murder by
strangulating her and robbed her ornaments and Rs.400/- which Syamala
had in her bag. Thereafter, the dead body of Syamala was dragged and
thrown to the Muvattupuzha Valley Irrigation Project (MVIP) canal. To
destroy evidence, the shawl and the churidar bottom were flown in the
canal. The vanity bag and other dresses were burnt to ashes.
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4. On the next day at 7.30 a.m. Pw1, a tapper in the estate, found
the dead body floating in the canal and reported to the police. Pw28, the
Sub Inspector of Police, Kanjar recorded Ext.P1 First Information Statement
given by Pw1 and registered Ext.P42 First Information Report as Crime
No.350/2000 for unnatural death.
5. Pw29, the Circle Inspector of police took over the
investigation. The body was initially not identified. Pw29, after preparing
Ext.P36 inquest report, sent the body for autopsy and after autopsy it was
kept in the mortuary. Later, the appellant and the other accused were
arrested on suspicion. According to the prosecution, on the basis of
information given by the appellant and other accused, certain recoveries
were made. The identity of the deceased was also disclosed. After having
detected the identity of the deceased, Pw2, the brother of the deceased was
informed. He identified the dead body at the mortuary. On completion of
the investigation, having found that the appellant and other two accused
committed the earlier mentioned offences, the charge sheet was laid before
the Judicial Magistrate of the First Class-II, Thodupuzha.
6. On finding that the offences alleged are triable by court of
Sessions, the learned Magistrate, after complying the required procedures,
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committed the case to the Court of Sessions, Thodupuzha from where it was
made over to the Court of the Addl.Sessions Court (Adhoc-I), Thodupuzha.
The Addl. Sessions Judge having found that there are materials to send the
appellant and other accused for trial, a charge was framed, to which the
appellant and the other accused pleaded not guilty. Therefore, they were
sent for trial. On the side of prosecution Pws.1 to 29 were examined.
Exts.P1 to P52 and MOs.1 to 16 were marked. During the course of cross-
examination of Pws.1, 3 and 9, on the side of the defence, Exts.D1 to D4
were marked. There is no other defence evidence adduced. Plea of the
accused is total denial. On conclusion of the trial the appellant was
convicted and sentenced as above. Now this appeal.
7. Evidence adduced.
Pw1 had deposed that at 7.30 a.m. on 29.11.2000 he found the
nude dead body of a woman in the MVIP canal and he reported the matter
to the police and that Ext.P1 is the first information statement so given by
him. Though he had admitted his signature in Ext.P1 he had deposed that
he didn’t understand the contents and Ext.P1 has signed without knowing as
to what was written there.
8. Pw2 had deposed that the deceased was his sister and that in
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the mortuary of the Medical College, the dead body was identified and that
the deceased had studied upto degree course and was working as a Home
Nurse at Matha Nursing Home, Thrippunithura and on 16.11.2000 the
deceased left the house on employment and when he telephoned after a
week to the Matha Nursing Home, Thrippunithura it was informed that she
had not reported there. Pw2 believed that the deceased might have gone to
some of her relatives and that on 1.12.2000 he was informed about the death
by the police and the dead body was identified. He had further deposed that
the deceased was wearing a gold chain, weighing about one sovereign, four
gold bangles, gold anklets, a gold ring and she had a gold necklace and that
when she left home on 6.11.2000, she had been wearing the ornaments and
that the MO1 series are the bangles worn by the deceased. MO2 was
identified as the chain. MO3 was identified as the ring and MO4 series
were identified as ear studs. According to him, MOs.1 to 4 are of gold. A
shawl and churidar said to have been worn by the deceased was identified
and marked as MO5 series. It was further deposed that the deceased used to
have phone calls to Tel.No.04862 55707 from the house and that Exts.P2
and P3 are the list of phone calls gone out from his telephone.
9. Pw3 is the father of one Rachel who is a class mate of the
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deceased. He had deposed that two/three days before the death, the
deceased had been to her house at about 8.00 p.m. and stayed there a day.
According to the prosecution, the deceased was accompanied to the house
by the 2nd accused. But Pw3 didn’t support the prosecution on that aspect.
10. Pw4 is the paternal uncle of the deceased. He was examined to
prove that he had seen the deceased walking along with the appellant at
Eerattupetta and that he had warned the deceased and advised her to
abandon relationship with the appellant, if she had any.
11. Pw5 is a neighbour of the deceased. He was examined to prove
that the deceased was in love with the appellant. But he didn’t support the
prosecution on that aspect. Pw6 is a door-checker, employed in New
Theatre, Thodupuzha . He was examined to prove that on the previous
night the appellant and the deceased had been to the theatre for watching
film. But he didn’t support the prosecution. Pw7 is a provision shop owner.
He was examined to depose that on the previous night the 2nd accused had
been to his house and telephoned to the 3rd accused. But he didn’t support
the prosecution on that aspect. Pw8 is a cook, who had been running a fast
food shop. He was examined to prove that he knew the 2nd and 3rd accused
and that he had seen the 2nd accused driving the autorickshaw with the
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deceased on board on the previous day and that the 2nd and 3rd accused had
tea from his fast food shop at 10.00 p.m. on the previous day. But he didn’t
support the prosecution.
12. Pw9 is a telephone booth operator, he was examined to depose
that the telephone number of the booth was 04862 55707 and that he knew
the appellant and other two accused and that the deceased used to contact
the appellant over phone through his booth. But Pw9 didn’t support the
prosecution case.
13. Pw10 is an attester to Ext.P20 recovery mahazar whereby the
chain and the bangles said to have been belonging to the deceased were
seized from a property adjacent to the house of the appellant. He is also an
attester to Ext.P21 mahazar prepared for the seizure of lungi and shirt worn
by the appellant. Ext.P22 is yet another mahazar for the recovery of charred
vanity bag and other articles. In Ext.P22 also Pw10 is an attester. Pw19
had also attested Exts.P20, 21 and 22. Pw19 had deposed that he heard that
the appellant was present at the time when Exts.P20, 21 and 22 were signed.
Pw10 didn’t admit that the appellant was present when Exts.P20, 21 and 22
were prepared and the articles were seized.
14. Pw11 is a Scientific Assistant attached to District Police Office,
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Idukki. He had deposed that he had assisted the Investigating Officer and
collected two used condoms and a black hair from the pubic area of the
deceased by combing.
15. Pw12 is the Asst.Director, Xerology Division, Forensic Science
Laboratory, Thiruvananthapuram. She had deposed that she had examined
items 2, 7 & 8 (nail clippings, lungi and shirt) contained in a sealed packet
and items 4, 4(a), 5 & 5(a) (inside and outside of two condoms) contained in
an unsealed packet which were forwarded to the Forensic Science
Laboratory. She had further deposed that Ext.P24 is the report given by her
and that items 7 & 8 were stained with A group blood and that items 4, 4(a),
5 & 5(a) were subjected to the test for semen grouping and that item 4
contained A group fluids and items 4(a), 5 & 5(a) contained B group fluids.
16. Pw13 is an employee of the Sophia International Hotel,
Thodupuzha. He was examined to prove that on 29.11.2000 at night the
appellant along with the deceased had been to the hotel for food and they
left after food from the hotel in an autorickshaw. But he didn’t support the
prosecution. Though he was subjected to searching cross-examination no
material was disclosed to support the prosecution case.
17. Pw14 is an attester to Ext.P27, a mahazar prepared for the
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seizure of a churidar and shawl which were marked as MO5 series. Pw15 is
an attester to Ext.P28, a mahazar prepared for the seizure of a packet of
condoms seized from Embrayil Stores, Muttom. Pw16 is the Village
Officer, Muttom. He had deposed that he inspected the occurrence site and
prepared Ext.P29 site plan.
18. Pw17 was examined to depose that on 29.11.2000 at night the
3rd accused who was known to him got purchased a packet of condom
through Pw17. But Pw17 didn’t support the prosecution. Pw18 was
examined to depose that he heard about the death of a lady. He was also
relied upon by the prosecution to bring on record that the appellant used to
purchase articles from his shop, but he denied the same.
19. Pw20 is a gold smith. He had deposed that on 1.12.2000 he
was asked to appraise the purity of four bangles and a chain similar to those
shown to him. On examination it was found that those items were not made
of gold.
20. Pw21 is a stationery merchant. He was examined by the
prosecution to bring out in evidence that he heard that on 29.11.2000 a
body of a lady was found in the canal and that the 3rd accused had purchased
condoms from his shop through Pw17. But he denied the same. He had
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further deposed that the police had seized two packets of condoms and the
same was identified as MO7. Pw22 is an attester to Ext.P35, a mahazar for
an autorickshaw said to have been driven by the 2nd accused to carry the
deceased and appellant to the spot of occurrence. Pw23 is an attester to
Ext.P36 inquest report prepared by Pw29. Pw24 was examined as an
attester to P28 mahazar.
21. Pw25 is an Asst.Surgeon then attached to the Taluk Head
Quarters Hospital, Thodupuzha. He was examined to prove that as
requested by the Investigating Officer he examined the appellant and other
two accused and found nothing to suggest that they were incapable of
doing sexual act and Exts.P37 to 39 are the certificates issued by him to that
effect. It was further deposed that he examined their blood groups and
found to be of B+ve, A+ve and B-ve respectively.
22. Pw26 is the Asst.Director, Biological Division, Forensic
Science Laboratory, Thiruvananthapuram. He would depose that Ext.P40 is
the report given by him after examining items 4, 4(a), 5, 5(a), 7 and 8.
Items 4 and 5 are the extracts from the inside of two condoms seized from
the site of occurrence. Item 4(a) and 5(a) are the extracts from the outside
of the above condoms. Items 7 and 8 are the shirt and lungi (MOs.14 and
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15) which were the dress worn by the appellant at the time of occurrence.
Over items 4, 4(a), 5 and 5(a) human spermatozoa were detected and over
items 4(a) and 5(a) large number of vaginal epithelial cells were detected.
He had further deposed that the extracts from items 4, 4(a), 5 and 5(a) and
items 2, 7 and 8 were forwarded to the Xerological Division for
examination and that item 2 nail clippings contained nothing other than
mud.
23. A perusal of Ext.P40 would show that on microscopic
examination of items 4, and 5 were found to have contained human
spermatozoa and that the extracts from 4(a) and 5(a) contained large number
of vaginal epithelial cells. The blood stains contained in items 7 and 8
which were lungi and shirt contained A group blood. The semen in item 4
was of a person belonging group A. The semen in item 5 belong to B group
person and the vaginal epithelial in items 4(a) and 5(a) belong to a person of
B group.
24. Pw27 would depose that he was Asst. Professor of Forensic
Medicine, Medical College, Kottayam and that on 1.12.2000 he conducted
autopsy on the body of an unidentified female, who was later identified as
Mary @ Syamala, aged about 30 years and had issued Ext.P41 certificate.
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Pw27 had further deposed that there were 29 ante-mortem injuries. Injuries
1, 2, 3, 4 and 5; which are extracted below alone are significant.
1. Pressure abrasion 22 cms. long, nearly horizontal on the front and
sides of the upper part of the neck. It was situated 8 cm. below the
left ear (0.6 cm. broad)8.5 cm. behind the chin (1.5 cm. broad) and
7 cm. below the left ear (1 cm. broad).
2. Pressure abrasion 810.5 cms. to 1 cm. horizontally placed and
parallel to the injury No.1 involving the front and left side of the
neck. Its front extent was just outer to the midline and 1.5 cm.
below the injury No.1.
3. Multiple contused abrasions over an area 9×4 cm. varying in sizes
from 1×0.5 cm. to 3×2 cm. involving the front and right side of the
neck. Its front extent was just below the injury No.2. Flap
dissection of the neck was done under a bloodless field. The
subcutaneous tissues under neath the above injuries showed
infiltration of blood. The sternomastoid muscle on the right side
contusion at different levels and the thyroid cartilage showed
fracture fragmentation at the right side with infiltration of blood
around. Under the injury No.1 and 2 the muscles showed
contusion. The posterior laryngeal wall showed contusion.
4. Laceration 1×0.3 cm. involving the hymen at 7 ‘O clock position
in its full thickness.
5. Multiple superficial lacerations 3×1 cm. on the inner aspect of the
lower part of the vagina. The vaginal wall was contused.
The others are minor injuries. Pw27 had further deposed that the death was
due to blunt injuries sustained to the neck and injuries 1, 2 and 3 on the
neck are sufficient to cause death independently in the ordinary course of
nature. Injuries 1 and 2 could be caused by ligature and could be caused by
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a shawl like MO5. Injury No.3 could be caused by forcibly pressing with
hand. Injuries 4 and 5 could be caused with forcefully stimulated penis. It
was further deposed that injuries 6 to 11 could be caused during scuffle on
contact with hard and rough surface. Injury No.12 could be caused with a
nail. Injuries 16, 17, 20, 21, 24, 26, 27 and 28 could be caused by dragging.
It was further deposed that there was no sign of death by drowning.
25. Pw28, the then Sub Inspector of Police, Kanjar had deposed
that he recorded the first information statement given by Pw1 and registered
the case as Crime 350/2000 under the caption ‘unnatural death’ and Ext.P27
is the first information report and that on getting information that churidar
and top worn by the deceased was at MVIP canal near the spot of
occurrence, he proceeded to the spot and seized the same after preparing
Ext.P27 mahazar. Pw29 had given evidence regarding the process of
investigation.
26. Homicide or natural death?
The evidence of Pw1 would show that he found the dead body
in MVIP canal at 7.30 am. on 29.11.2000. Ext.P1 supports the factum of
seeing the dead body. Ext.P36 Inquest Report prepared by Pw29 and
wherein Pw23 is an attester would show that the nude dead body of
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Syamala was found floating in MVIP canal and there were injuries all over
the body. Pw2, the brother of Syamala identified the dead body. The
evidence of Pw27 which we discussed in brief in para.24 and other injuries
which Pw27 mentioned in his evidence and corroborated by Ext.P41 post-
mortem certificate would show that Syamala died due to strangulation.
Injuries 4 and 5 also suggested sexual assault. The abrasions and minor
injuries suggest that after murder by strangulation, the body was dragged
and put in the canal. Pw27 is specific that there was no sign of drowning.
In cross-examination, it was opined that the injuries found on the body also
indicate long resistance. On a careful scrutiny of the evidence of Pw27 and
Ext.P41, we find no reason to disbelieve the evidence of Pw27 that it is a
case of homicide or to reject Ext.P41. There is no material to suggest that it
was an accidental or natural death. Evidence on record, beyond doubt
establishes nothing but a clear case of homicide after sexual assault.
27. How far oral evidence connects the appellant with the offence?
Prosecution examined Pws.4, 5, 6, 7, 8, 9 and 13 in attempt to
bring evidence that the appellant was in love with the deceased and that the
deceased and appellant were found moving together in the previous night.
The prosecution relied upon the testimony of Pw4 to establish that the
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appellant and the deceased were found walking together at Eerattupetta. It
is not mentioned as to when it was. According to him, he had warned the
deceased to drop the relationship with the appellant, if she had any.
Though Pw4 was examined to depose that the deceased was in love with the
appellant, he didn’t support that part of the prosecution story. Since Pw4
could not give the date when he saw the appellant and the deceased together
at Eerattupetta, his evidence would in no way help the prosecution to
connect the appellant with the guilt.
28. Pw5, a neighbour of the deceased, was also relied upon by the
prosecution to bring out that he had seen the deceased along with the
appellant. Though Pw5 stated to the investigating officer that the deceased
was in love with the appellant, the love affair between the appellant and the
deceased was denied by Pw5. So, his evidence is also worthless to
implicate the appellant.
29. Pw6, the door-checker at New Theatre, Thodupuzha, was relied
upon by the prosecution to bring on record that the appellant and the
deceased had been to the first show film on the previous night. But, as we
mentioned earlier, this witness also didn’t support the prosecution. The
evidence of Pw7 was relied upon by the prosecution to connect the accused
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2 and 3 with the offence. The evidence of Pw8 was also for the same
purpose. Their evidence no way connect the appellant.
30. Evidence of Pw9, which we mentioned in para.12 also didn’t
support the prosecution.
31. The evidence of Pw13 was relied upon by the prosecution to
establish that on the previous night the appellant and the deceased had been
to Hotel Sophia International, where Pw13 was an employee, and that the
appellant and the deceased left the hotel after food. But Pw13 didn’t
support the prosecution. So, his evidence is also not reliable to connect the
appellant with the offence alleged. The evidence of Pws.4 to 9 and 13 being
the above, the attempt of the prosecution to establish the last seen together
theory failed. There is nothing to conclude that the appellant had any sort
of contact with the deceased. No circumstance leading to the the complicity
of the appellant is revealed by the oral testimony of the above witnesses.
32. Scientific evidence.
The scientific evidence available is the testimony of Pws.11,
12, and 26 coupled with Ext.P24 and P40 reports. The learned Public
Prosecutor Sri.Noble Mathew, very vehemently argued that the appellant
had voluntary and unprotected sexual intercourse with the deceased and
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thereafter the accused 2 and 3 committed rape on the deceased and while
committing rape the accused 2 and 3 had used condoms and that those
condoms were seized by Pw29 at the time when the inquest report was
prepared and MOs.10 and 11 are the condoms so seized. MOs.10 and 11
were forwarded for laboratory examination. The evidence on record would
show that MOs.10 and 11 condoms were sent as item Nos.4 and 5. It is
reported that there were secretions inside and outside the condoms. The
contents inside the condoms were marked as item Nos.4 and 5 and the
secretions outside the condoms were marked as 4(a) and 5(a). On a
grouping it was found that secretions in items 4 belonged to A group and
item 4(a), 5 and 5(a) belong to B group. Ext.P24 is the certificate issued by
Pw12. Naturally there is possibility for having vaginal epithelial cells in the
fluid. The evidence of Pw12 would show that the victim belong to A group.
But in the secretions as items 4(a) and 5(a) there was no A group secretion
detected.
33. According to Pw26, there were large number of epithelial cells
in items 4(a) and 5(a). It is not discernible from the testimony of Pw26 as to
whether the detection of A group substance is that of vaginal materials or
that of spermatozoa. However, from the evidence of Pw26 it has to be
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presumed that the detection of A group substance in items 4(a) & 5(a) is
that of vaginal epithelial cells. According to the learned Public Prosecutor,
detection of B group substance over items 4(a) & 5(a) is that of the
appellant. The case of the prosecution is that the appellant had unprotected
sexual intercourse with the victim and as a result there was every chance for
spermatozoa of the appellant mixing with vaginal secretions. When the 2nd
and 3rd accused committed rape on the victim with condoms, the secretions
of the appellant got fastened over the condoms and it is an indication that
the secretions detected over in items 4(a) & 5(a) was that of the appellant
and hence there is every material to connect the appellant with the crime.
34. For two reasons, we are unable to accept the argument
advanced by the learned Public Prosecutor. First and primary reason is that,
there is no material on record to show that the appellant had any sexual
intercourse with the victim on the previous night. Even if it is assumed that
the appellant had sex with the victim, we have to do guess work that the
appellant did so without condoms and accused 2 & 3 did with condoms
(item 4 & 5). Prudence dissuades us from guessing so. Second reason is that,
when the evidence of Pw26 is given due regard, there are large number of
vaginal epithelial cells on items 4(a) & 5(a). If the group detected is that of
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the vaginal epithelial cells it had to be inferred that the lady with whom
sexual intercourse/rape was committed with condom was of B group and the
victim belonging to A group, there is little chance for having these condoms
used to have sexual intercourse/rape with the victim. So, for these two
reasons, we find that the secretions found on the condoms can no way
amount to any material to connect the appellant with the crime. Scientific
evidence, being the above is of no help to the prosecution.
35. Other circumstantial evidence.
Case of the prosecution is that the appellant after having sex
with the victim, being greedy with the ornaments of the victim had
murdered her and robbed away the imitation ornaments kept in the vanity
bag along with a sum of Rs.400/-. It was revealed out by the testimony of
Pw20 that the material objects produced before the court are not gold, but
imitations. The case of the prosecution is that the appellant mis-took the
imitated items as that of original gold. So he committed robbery of the
ornaments without understanding that it was not gold ornaments. A reading
of the judgment under appeal would show that, in fact, before the trial court
the prosecution relied upon the recovery of the ornaments in attempt to
establish the offence under Sec.392 IPC, which the lower court found
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against. To establish offence under Sec.302 IPC, the recovery was not
relied on. However, we are bound to consider the evidence regarding
recovery because of the allegation of the prosecution that the ornaments
were robbed after committing murder. If there is evidence to connect the
appellant with the ornaments which the victim had been wearing/possessed
just before the murder, there is some circumstance against the appellant.
36. Regarding the gold ornaments, the evidence of the prosecution is
full of suspicious circumstances. According to Pw2, the brother of the
deceased, the victim was having chain, necklace, four bangles, anklets and
ear-studs. Curiously, the anklets and necklace were not recovered. What
happened to those items. It seems to be a mystery. Adding to that, according
to Pw2, all the ornaments were of gold. But MOs.1 to 4 identified by Pw2
as that of the deceased are not at all gold, but imitations. If that is so, there
is every chance for mistaken identity. It is pertinent to note that the
investigating officer had not cared to have MOs.1 to 4 identified through
the mother of the deceased who would have been more acquainted with the
ornaments of the deceased and could have easily identified the same. So, the
evidence of Pw2 being that the ornaments that the deceased were wearing
were of gold and MOs.1 to 4 were being not of gold, what is to be inferred
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from the evidence of Pw2 is that MOs.1 to 4 are not that of the deceased. If
the deceased was having gold ornaments, what happened to the gold
ornaments also seems to be a mystery. Since it is the specific case of Pw2
that deceased was having gold ornaments, and the ornaments seized being
imitations, the investigating officer should have investigated and a
satisfactory explanation should have been given. The articles lost and
articles recovered being different, prosecution has left a wide gap staring
against the prosecution. In this view of the matter, seizure of MOs.1 to 4
even if it is on the basis of the admission of the appellant, would in no way
help the prosecution to connect the appellant with the murder or robbery.
37. As regards the recovery, Pw10 and Pw19 are the attestors to
Ext.P20 mahazar whereby MOs.1 to 4 were seized. According to Pw10, he
didn’t see the appellant anywhere near the place of seizure. According to
Pw19, he heard that the appellant was present but he didn’t see the appellant
or the actual seizure. However, going through Ext.P20 and the evidence of
Pw29, who prepared Ext.P20, we find that the evidence regarding recovery
is not at all convincing. According to Pw29, appellant stated that a small
national flag was erected at the place of occurrence as an indication.
Curiously, that flag was not seized. Adding to that there is no mention in
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Ext.P20 regarding the lie of soil where the ornaments were buried. If it was
recent burial, definitely the soil covering the ornaments should have been
loose. But there is no mention that the soil covering ornaments was loose.
In the absence of positive evidence, it is not appropriate to have guess work
against the accused. But it is to be presumed against the prosecution. Such
being the materials on record, we find that the seizure of MOs.1 to 4 can in
no way be a connecting piece of evidence between the appellant and the
crime.
38. The last connecting link relied upon by the prosecution is the
blood stains over the cloth said to have been worn by the appellant at the
time of crime. Ext.P21 is the mahazar prepared for the seizure of the lungi
and shirt which were marked as MOs.14 and 15. It is reported that MOs 15
and 14 were stained with A group blood. According to the learned Public
Prosecutor, it is an indication that the appellant was the assailant. But it is
crucial to note that the case of the prosecution is one of strangulation.
There is a little chance for having blood coming out in the process of
strangulation and staining the cloth. What was the volume of blood stain is
not brought out in evidence. Ext.P36 inquest report and Ext.P14
postmortem certificate didn’t show that there was bleeding injuries so as to
Crl.Appeal.No.1378 of 2005.
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cause blood stain on the cloths of the assailant. So, for the mere presence of
blood stain, even if any, over the cloth of the appellant, in our opinion is,
not sufficient enough to connect the appellant with the crime. Thus
circumstantial evidence also didn’t support the prosecution.
In the above circumstance, we find that the prosecution had not
succeeded to establish the guilt alleged against the appellant beyond the
shadow of reasonable doubt. The conviction and sentence under challenge
in SC.No.46/2003 on the file of the Sessions Division, Idukki are not
sustainable. Hence we set aside the same. The appeal stands allowed. The
appellant shall be set at liberty forthwith, if his continued detention is not
warranted in any other case.
K.BALAKRISHNAN NAIR, JUDGE.
P.S.GOPINATHAN, JUDGE.
Kvs/-