{"id":61747,"date":"2009-11-04T00:00:00","date_gmt":"2009-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-raja-vs-state-of-kerala-on-4-november-2009"},"modified":"2019-01-26T04:03:46","modified_gmt":"2019-01-25T22:33:46","slug":"t-raja-vs-state-of-kerala-on-4-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-raja-vs-state-of-kerala-on-4-november-2009","title":{"rendered":"T.Raja vs State Of Kerala on 4 November, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
T.Raja vs State Of Kerala on 4 November, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 2019 of 2005()\n\n\n1. T.RAJA, S\/O.THANKAMONY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA.\n                       ...       Respondent\n\n                For Petitioner  :SRI.SHAIJAN C.GEORGE\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :04\/11\/2009\n\n O R D E R\n<\/pre>\n
            K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.\n<\/p>\n
           ——————————————————————\n<\/p>\n
                              Cr.A.No.2019 of 2005\n<\/p>\n
           ——————————————————————\n<\/p>\n
                           Dated 4th November 2009<\/p>\n
                                     Judgment<\/p>\n
Bhavadasan, J.\n<\/p>\n
      The accused in this case was prosecuted for the offences<\/p>\n
punishable under S.302 and S.397 IPC. He was found guilty and was<\/p>\n
accordingly convicted for both the offences and was sentenced to<\/p>\n
suffer imprisonment for life for the offence punishable under S.302<\/p>\n
IPC and to pay a fine of Rs.5,000\/- (Rupees Five Thousand only) on<\/p>\n
default of payment of which, he had to undergo rigorous<\/p>\n
imprisonment for a further period of one year. So far as the offence<\/p>\n
under S.397 IPC is concerned, he was sentenced to undergo<\/p>\n
rigorous imprisonment for ten years and to pay a fine of Rs.5,000\/-<\/p>\n
on default of payment of which, he had to suffer simple imprisonment<\/p>\n
for one year. It was directed that the substantive sentences of<\/p>\n
imprisonment shall run concurrently. The case of the prosecution, in<\/p>\n
short, is as follows :\n<\/p>\n
      2. The deceased namely, Selvarani was staying with PW4.<\/p>\n
They were leading a family life, though not married. They had been<\/p>\n
residing so, for about three years prior to the incident. Both of them<\/p>\n
Cr.A.2019\/05                        2<\/span><\/p>\n
had children in their earlier marriage. On 07.10.2000, as usual, PW4<\/p>\n
went for work. Selvarani, the victim was at home at that time. When<\/p>\n
PW4 returned by about 7 pm. after the work, he found the door of the<\/p>\n
house locked. Contrary to the usual practice, he came to know that<\/p>\n
Selvarani had not entrusted the key to the neighbour. He went in<\/p>\n
search of the victim and came to know that by about 4 pm. on that<\/p>\n
day, she was seen going to the market with an umbrella. Inspite of<\/p>\n
best efforts made by him, he was unable to locate his companion. It<\/p>\n
is alleged that at the time when she had gone out of the house, she<\/p>\n
was wearing gold ornaments.\n<\/p>\n
      3. PW4, on 8.10.2000, made a complaint before the Edavanna<\/p>\n
Police Station about the missing of Selvarani. Ext.P6 is the said<\/p>\n
F.I.Statement. Based on Ext.P6, which was recorded by PW16,<\/p>\n
Ext.P12 F.I.R. was registered. PW16 started investigation and on<\/p>\n
09.10.2000, the body of Selvarani was found in Chaliyar River. He<\/p>\n
conducted inquest over the body and submitted Ext.P11 report. He<\/p>\n
recovered MOs 7 and 8 found on the body of the deceased and sent<\/p>\n
the body for postmortem. PW11, the Assistant Professor in Forensic<\/p>\n
Department, Medical College Hospital, Kozhikode conducted autopsy<\/p>\n
and    prepared    Ext.P8    postmortem    report. The    subsequent<\/p>\n
Cr.A.2019\/05                       3<\/span><\/p>\n
investigation was done by PW18 Dy.S.P. of Police. He would state<\/p>\n
that during the investigation, he came to know that the accused had<\/p>\n
a role in the missing of Selvarani and accordingly, he arrested him on<\/p>\n
10.10.2000. Based on Ext.P17(a) confession statement, stated to<\/p>\n
have been given by the accused, MOs 2 to 5 were recovered as per<\/p>\n
Ext.P3 mahazar. Based on Ext.P17(b) confession statement, MO1<\/p>\n
chappals were recovered as per Ext.P1 mahazar. He prepared<\/p>\n
Ext.P2 scene mahazar and recorded the statements of witnesses. He<\/p>\n
filed Ext.P18 report before the court, seeking to have S.302 and 397<\/p>\n
incorporated in the F.I.R. He obtained a site plan prepared by the<\/p>\n
Village Officer. Further investigation was conducted by the<\/p>\n
successor-in-office to PW18. He, after verification of the records, laid<\/p>\n
charge before the court.\n<\/p>\n
      4. The Judicial First Class Magistrate, Manjeri, before whom<\/p>\n
the final report was laid, took cognizance of the offence. On<\/p>\n
appearance of the accused before the said court, all legal formalities<\/p>\n
were complied with. The learned Magistrate found that the offences<\/p>\n
are exclusively triable by a court of sessions and accordingly,<\/p>\n
committed the case to the Sessions Court, Manjeri, as per S.209<\/p>\n
Cr.P.C. The Sessions Court made over the case to the Additional<\/p>\n
Cr.A.2019\/05                       4<\/span><\/p>\n
Sessions Fast Track Court No.1(Ad hoc), Manjeri for trial and<\/p>\n
disposal.\n<\/p>\n
      5.   The court below found that the accused was unable to<\/p>\n
engage a lawyer and therefore, the court appointed a State Brief to<\/p>\n
appear on behalf of the accused. After hearing both sides, the court<\/p>\n
framed charges for the offences punishable under S.302 and 397<\/p>\n
IPC. To the charges, the accused pleaded not guilty and claimed to<\/p>\n
be tried. The Prosecution, therefore, examined PW1 to PW18 and<\/p>\n
had Exts.P1 to P19 marked. MO1 to MO19 were identified and<\/p>\n
marked. After the close of the prosecution evidence, the accused<\/p>\n
was questioned under S.313 Cr.P.C. He denied all the incriminating<\/p>\n
circumstances brought out in evidence against him. The accused<\/p>\n
maintained that he is innocent. According to him, he has been falsely<\/p>\n
implicated in the case.   Presumably finding that he could not be<\/p>\n
acquitted under S.232 Cr.P.C., he was asked to enter on his<\/p>\n
defence.\n<\/p>\n
      6. The accused chose to adduce no evidence, but he had<\/p>\n
already got Exts.D1 to D4 marked. On a consideration of the<\/p>\n
materials before it, the court below came to the conclusion that the<\/p>\n
Prosecution had succeeded in establishing the case against the<\/p>\n
Cr.A.2019\/05                      5<\/span><\/p>\n
accused. The conviction and sentence already mentioned, followed.<\/p>\n
The said conviction and sentence are assailed in this appeal.<\/p>\n
      7.   That Selvarani is no more, is a question that is not in<\/p>\n
dispute. She was staying with PW4, at the relevant time. The<\/p>\n
Prosecution case, in brief is that she was done away by the<\/p>\n
accused. To be more precise, after depriving her of her ornaments,<\/p>\n
she was pushed into the river by the accused. She died of drowning.<\/p>\n
      8. The court below found that the evidence of PW3, PW5,<\/p>\n
PW6, PW7, PW8 etc., taken along with the recovery of MO1 to MO4,<\/p>\n
based on the alleged confession statement stated to have been<\/p>\n
given by the accused are sufficient enough to fasten the liability on<\/p>\n
the accused.\n<\/p>\n
      9. The State Brief appearing for the appellant before this Court,<\/p>\n
pointed out that the court below was not justified in blindly accepting<\/p>\n
the evidence of recovery against the accused. Though a few<\/p>\n
witnesses said that they had occasion to see the accused and the<\/p>\n
victim together for some time, on 7.10.2000, the same is not a<\/p>\n
ground to come to a conclusion that the accused was responsible for<\/p>\n
causing the death of the victim.  The Prosecution has miserably<\/p>\n
failed to show that there was any attempt from the part of the<\/p>\n
Cr.A.2019\/05                      6<\/span><\/p>\n
accused to forcibly remove her ornaments. There were no injuries<\/p>\n
found on the body of the victim and the postmortem certificate<\/p>\n
showed that she died of drowning. The court below was not justified<\/p>\n
in invoking the “last seen” theory in this case. It is also submitted<\/p>\n
that on a close scrutiny of the evidence, it can be seen that Ext.P6<\/p>\n
cannot be the F.I. statement. Long before the preparation of Ext.P6,<\/p>\n
it is clear from the evidence that the police were given detailed<\/p>\n
information about the incident. The evidence of PW5 would clearly<\/p>\n
show that the police had information about the missing of Selvarani,<\/p>\n
in the night of 7.10.2000. It is very clear, according to the learned<\/p>\n
counsel that the F.I. statement had been drawn up to suit the<\/p>\n
convenience of the prosecution. The learned counsel pointed out that<\/p>\n
the evidence available on records is totally insufficient to warrant a<\/p>\n
conviction.\n<\/p>\n
       10. Per contra, the learned Public Prosecutor contended that<\/p>\n
the court below has been careful enough to take into consideration<\/p>\n
all items of evidence available before it. The Court below could not<\/p>\n
have omitted to take note of the recoveries made on the basis of the<\/p>\n
confession statement stated to have been made by the accused,<\/p>\n
which were clinching items of evidence. There is also ample<\/p>\n
Cr.A.2019\/05                      7<\/span><\/p>\n
evidence to show that in the evening of 7.10.2000, the victim was<\/p>\n
seen in the company of the accused and if that be so, it is for him to<\/p>\n
explain, what had happened to the victim, thereafter. It is also clear<\/p>\n
from the evidence that the victim and the accused had taken fancy<\/p>\n
for each other. Summing up, the learned Public Prosecutor pointed<\/p>\n
out that no grounds are made out to interfere with the judgment<\/p>\n
under appeal.\n<\/p>\n
      11. Before going into the evidence in this case, it may be<\/p>\n
noticed that the Prosecution relies on circumstantial evidence, to<\/p>\n
prove the case against the accused. There are several decisions of<\/p>\n
the Apex Court regarding the principles to be applied in cases, built<\/p>\n
under circumstantial evidence. It is unnecessary to refer to all of<\/p>\n
them. After referring to a number of decisions, the Apex Court, in<\/p>\n
State of Goa v. Pandurang Mohite (AIR<\/a> 2009 SC 1066) held as<\/p>\n
follows :\n<\/p>\n
            “A reference may be made to a later decision in Sharad<\/p>\n
            Birdichand Sarda v. State of Maharashtra (AIR<\/a> 1984<\/p>\n
            SC 1622). Therein, while dealing with circumstantial<\/p>\n
            evidence, it has been held that onus as on the prosecution<\/p>\n
            to prove that the chain is complete and the infirmity of<\/p>\n
            lacuna in prosecution cannot be cured by false defence or<\/p>\n
            plea. The conditions precedent in the words of this Court,<\/p>\n
Cr.A.2019\/05                        8<\/span><\/p>\n
             before conviction could be based on circumstantial<\/p>\n
             evidence, must be fully established. They are :-<\/p>\n<\/blockquote>\n
                   (1) the circumstances from which the conclusion of<\/p>\n
             guilt is to be drawn should be fully established. The<\/p>\n
             circumstances concerned ‘must’ or ‘should’ and not ‘may<\/p>\n
             be’ established :\n<\/p><\/blockquote>\n
                   (2) The facts so established should be consistent<\/p>\n
             only with the hypothesis of the guilt of the accused that is<\/p>\n
             to say, they should not be explainable on any other<\/p>\n
             hypothesis except that the accused is guilty ;<\/p>\n
             (3) the circumstances should be of a conclusive nature and<\/p>\n
             tendency.\n<\/p><\/blockquote>\n
                   (4) they should exclude every possible hypothesis<\/p>\n
             except the one to be proved and<\/p>\n
                   (5) there must be a chain of evidence so complete as<\/p>\n
             not leave any reasonable ground for the conclusion<\/p>\n
             consistent with the innocence of the accused and must<\/p>\n
             show that in all human probability, the act must have been<\/p>\n
             done by the accused.”<\/p><\/blockquote>\n
        12. PW1 and PW2 are witnesses to the recovery of MO1 and<\/p>\n
MO2 to 4 respectively. Their evidence shall be dealt with in detail, a<\/p>\n
little later.\n<\/p>\n
        13. PW3 would say that the victim was staying along with PW4<\/p>\n
and that the victim used to wear gold ornaments. She identified MO2<\/p>\n
to MO5 as the ornaments belonging to Selvarani. PW5 says that he<\/p>\n
Cr.A.2019\/05                        9<\/span><\/p>\n
resides in the same quarters occupied by PW4 and the victim.<\/p>\n
Selvarani, the victim was found missing on 7.10.2000. He would<\/p>\n
depose that on that day, he returned after work and went to sleep.<\/p>\n
He was woken up by PW4, who told her that Selvarani was missing<\/p>\n
and also that he had suspicion about a person. This witness claims<\/p>\n
to have asked the accused as to where Selvarani was. It is alleged<\/p>\n
that the accused replied that she had alighted a bus to<\/p>\n
Vazhikkadavu. According to PW5, when he further asked the<\/p>\n
accused, the accused told him that he had gone to Nilambur along<\/p>\n
with Selvarani to see a movie. Since they did not get tickets for the<\/p>\n
movie, they returned by bus and got down at Kurisinpadi. They went<\/p>\n
to a nearby river to wash their face. This witness says that the<\/p>\n
accused told him that Selvarani slipped into water and he could not<\/p>\n
save her, inspite of his best efforts. This witness would also say that<\/p>\n
at that time, the accused was seen, wearing wet clothes. PW6 claims<\/p>\n
to have seen the victim at about 3 pm on the date of the incident. He<\/p>\n
claims to have asked Selvarani, where she was going and she<\/p>\n
replied that she was going to make a telephone call. He also says<\/p>\n
that he saw the accused following Selvarani.\n<\/p>\n
      14. PW7 is another witness, who claims to have seen the<\/p>\n
Cr.A.2019\/05                     10<\/span><\/p>\n
accused in the company of the victim at about 5.10 pm on 7.10.2000.<\/p>\n
He also claimed that the accused was accompanying her at the<\/p>\n
relevant time. PW8 claims to have seen the accused and the victim<\/p>\n
together at about 4.15 pm. He says that on several occasions, he<\/p>\n
has noticed the victim, wearing a gold chain and ear studs. PW10 is<\/p>\n
the person, to whom Selvarani was actually married to. His evidence<\/p>\n
would show that leaving him and the children, Selvarani went with<\/p>\n
PW4. He is the person, who received the dead body of Selvarani.<\/p>\n
      15. PW14 is an important witness. He says that he, PW3 and<\/p>\n
the accused, stayed together. Selvarani and PW4 were staying in the<\/p>\n
ground floor. He claimed that he and the accused go together for<\/p>\n
work. On the date, on which Selvarani was found missing, this<\/p>\n
witness would say that the accused had not come for work. He had<\/p>\n
gone with PW14 in the morning, but after reaching the place of work,<\/p>\n
the Supervisor instructed the accused to go elsewhere for work. He<\/p>\n
claims that on 7.10.2000, when he and others returned after work,<\/p>\n
they were told that Selvarani was missing. When they had gone in<\/p>\n
search of her, all those witnesses would say that they were given to<\/p>\n
understand that she was seen going with an umbrella at about 4 pm.<\/p>\n
Cr.A.2019\/05                      11<\/span><\/p>\n
Later, they met another person, who deposed that he had seen<\/p>\n
Selvarani and she told him that she was going to make a telephone<\/p>\n
call. This witness claims that PW7 told them that he had occasion to<\/p>\n
see the victim and the accused together at about 5 pm., near a<\/p>\n
theatre at Nilambur. PW14 asserted that he, along with PW4 and<\/p>\n
another person, went to Nilambur. They returned at 9 pm. unable to<\/p>\n
locate the lady. They opened the door and searched the room.<\/p>\n
Everything was in place, but Selvarani was missing. According to this<\/p>\n
witness, they found the accused standing near the bathroom. He<\/p>\n
asked the accused whether he had occasion to see Selvarani.<\/p>\n
Initially, though he pretended ignorance, later, he told that she went<\/p>\n
to her native place by a bus. By that time, a few people gathered<\/p>\n
there and they began to question the accused. When they found that<\/p>\n
the accused was unable to answer them, this witness says that they<\/p>\n
took the accused to the Police Station. PW17, who is a vendor in<\/p>\n
flowers, would say that Selvarani had bought flowers from him and<\/p>\n
she was accompanied by the accused.\n<\/p>\n
       16. PW1 claims to have seen the accused handing over MO1<\/p>\n
series chappals to the police from a nearby bush. According to the<\/p>\n
prosecution, the said pair of chappals belonged to Selvarani. PW2<\/p>\n
Cr.A.2019\/05                      12<\/span><\/p>\n
claims to have seen the accused handing over MOs 2 to 5 to the<\/p>\n
police, by the accused. They are the gold ornaments which were<\/p>\n
worn by the victim. PW18 speaks about the confession statement<\/p>\n
stated to have been given by the accused. But, one cannot omit to<\/p>\n
note that the postmortem report furnished by PW11 shows that the<\/p>\n
death was due to drowning. Except for a small contusion on the<\/p>\n
rightside of the chest, no other injuries were noticed on the body of<\/p>\n
the victim. A scrutiny of the evidence of PWs 6, 7 and 8 would<\/p>\n
indicate that they have all seen Selvarani, leaving her house between<\/p>\n
3.15 and 5.15 pm. One may now refer to the evidence of PW5. He<\/p>\n
says that while he was asleep in the evening of 7.10.2000, PW3 and<\/p>\n
4 approached him and PW4 told him that Selvarani was missing and<\/p>\n
that he had suspicion about a person with regard to the same. He<\/p>\n
claims that they asked the accused where Selvarani had gone and<\/p>\n
he replied that she alighted a bus to go to her native place. One<\/p>\n
should remember that all these had happened before Ext.P6<\/p>\n
F.I.statement was laid.\n<\/p>\n
      17. If one goes by the evidence of PW14, it is very clear that in<\/p>\n
the night of 7.10.2000 itself, the accused was taken to the Police<\/p>\n
Station. It is very clear from the evidence of the witnesses that the<\/p>\n
Cr.A.2019\/05                      13<\/span><\/p>\n
complaint was laid on the same night itself. The evidence of various<\/p>\n
witnesses have been referred to in detail earlier. With that in mind, if<\/p>\n
one looks at Ext.P6, it can be seen that the same could not have<\/p>\n
been the F.I. statement as claimed by the prosecution.           Ext.P6<\/p>\n
contains none of the details spoken to, by the various witnesses and<\/p>\n
it merely mentions that Selvarani was found missing. Of course, it<\/p>\n
was mentioned that she was wearing gold ornaments.<\/p>\n
      18. There is absolutely no evidence regarding any attempt by<\/p>\n
the accused to cause the death of Selvarani. One may recollect that<\/p>\n
her body was found floating , two days after she was found missing,<\/p>\n
in the Chaliyar river. Medical opinion is that she died of drowning.<\/p>\n
      19. Except for a contusion, as already stated, there are no<\/p>\n
other injuries found on her body. There is absolutely no evidence to<\/p>\n
show that after 5.15 pm on 7.10.2000, anybody had seen the<\/p>\n
accused in the company of the victim.          There is absolutely no<\/p>\n
evidence to show that they had gone together near the river.<\/p>\n
      20. Under the above circumstances, it is extremely doubtful<\/p>\n
whether the “last seen” theory can be invoked in the facts and<\/p>\n
circumstances of this case. The said theory has been explained in<\/p>\n
several decisions. It is unnecessary to refer to all of them. In the<\/p>\n
Cr.A.2019\/05                        14<\/span><\/p>\n
decision reported in Malleshappa v. State of Karnataka (AIR<\/a> 2008<\/p>\n
SC 69), it was held as follows :\n<\/p>\n
            “In the present case also, there is no proximity of time and<\/p>\n
            place. We have already noted that the dead body, even if it<\/p>\n
            is to be accepted, was that of the deceased Yankanna, had<\/p>\n
            been recovered after 10 days after the date on which the<\/p>\n
            deceased was last seen in the company of the appellant.<\/p>\n
            This singular piece of circumstantial evidence available<\/p>\n
            against the appellant, even if the version of PW10 is to be<\/p>\n
            accepted, is not enough. It is fairly well settled that the<\/p>\n
            circumstantial evidence in order to sustain the conviction<\/p>\n
            must be     complete and incapable of explanation of any<\/p>\n
            other hypothesis than that of the guilt of the accused. It is<\/p>\n
            true as has been held by this Court in Lakshmi & Others<\/p>\n
            v. State of U.P.<\/a> (2002) 7 SCC 198) that it is not an<\/p>\n
            inflexible rule that the identification of the body, cause of<\/p>\n
            death and recovery of weapon with which the injury may<\/p>\n
            have been inflicted on the deceased though, are factors to<\/p>\n
            be established by the prosecution but it cannot be held as<\/p>\n
            a general rule and broad proposition of law that where<\/p>\n
            these aspects are not established, it would be fatal to the<\/p>\n
Cr.A.2019\/05                        15<\/span><\/p>\n
            case of the prosecution and in all eventualities, it ought to<\/p>\n
            result in acquittal of those who may be charged with the<\/p>\n
            offence of murder provided the charges against the<\/p>\n
            accused otherwise can be established on the basis of the<\/p>\n
            other reliable and trustworthy evidence.<\/p>\n<\/blockquote>\n
                  25. There is no reliable and trustworthy evidence in<\/p>\n
            the present case. The High Court in the present case took<\/p>\n
            the view that as to what happened to the deceased-<\/p>\n
            Yankanna was within the knowledge of the appellant and<\/p>\n
            he having failed to explain and mutilated body of Yankanna<\/p>\n
            having been found, having shown that Yankanna had been<\/p>\n
            murdered, the only conclusion one can arrive at, is that<\/p>\n
            the appellant with the help of some others committed the<\/p>\n
            murder of Yankanna, cut off head and some part of the<\/p>\n
            body and threw the body in Ghataprabha river. Too many<\/p>\n
            surmises and conjectures ! it is highly dangerous to convict<\/p>\n
            any accused on the basis of which the High Court has<\/p>\n
            chosen to do so.”\n<\/p><\/blockquote>\n
In the decision reported in State of Goa v. Pandurang Mohite<\/a><\/p>\n
(supra), it was held as follows :\n<\/p>\n
            “So far as the last seen aspect is concerned, it is necessary<\/p>\n
Cr.A.2019\/05                        16<\/span><\/p>\n
            to take note of two decisions of this court. In State of<\/p>\n
            U.P. v. Satish<\/a> (2005(3) SCC 114) it was noted as<\/p>\n
            follows :\n<\/p><\/blockquote>\n
                  “22. The last seen theory comes into play where the<\/p>\n
            time-gap between the point of time when the accused and<\/p>\n
            the deceased were seen last alive and when the deceased<\/p>\n
            is found dead is so small that possibility of any person<\/p>\n
            other than the accused being the author of the crime<\/p>\n
            becomes impossible. It would be difficult in some cases to<\/p>\n
            positively establish that the deceased was last seen with<\/p>\n
            the accused when there is a long gap and possibility of<\/p>\n
            other persons coming in between exists. In the absence of<\/p>\n
            any other positive evidence to conclude that the accused<\/p>\n
            and the deceased were last seen together, it would be<\/p>\n
            hazardous to come to a conclusion of guilt in those cases.<\/p>\n
            In this case, there is positive evidence that the deceased<\/p>\n
            and the accused were seen together by witnesses PWs 3<\/p>\n
            and 5, in addition to the evidence of PW2. ”\n<\/p><\/blockquote>\n
                  17. In Ramreddy Rajesh Khanna Reddy v. State<\/p>\n
            of A.P.(2006(10) SCC 172), it was noted as follows ;<\/p>\n<\/blockquote>\n
                  27. The last-seen theory, furthermore, comes into<\/p>\n
Cr.A.2019\/05                      17<\/span><\/p>\n
            play where the time gap between the point of time when<\/p>\n
            the accused and the deceased were last seen alive and the<\/p>\n
            deceased is found dead is so small that possibility of any<\/p>\n
            person other than the accused being the author of the<\/p>\n
            crime becomes impossible. Even in such a case, the courts<\/p>\n
            should look for some corroboration.”<\/p><\/blockquote>\n
      21. Going by the principles laid down in the above decisions,<\/p>\n
the “last seen” theory can be invoked only if the time lag between the<\/p>\n
point of time when the accused and the deceased were last seen<\/p>\n
alive and the time when the deceased was found dead, is so small<\/p>\n
that the possibility of any other person than the accused, being the<\/p>\n
author of the crime, becomes impossible. As noticed earlier, there is<\/p>\n
absolutely no evidence at all in this case to show as to what has<\/p>\n
happened after 5 pm on 7.10.2000. It is here that the absence of<\/p>\n
evidence regarding the time of death of Selvarani assumes<\/p>\n
significance. Merely because the accused was seen in the company<\/p>\n
of Selvarani some time before she was found missing, it does not<\/p>\n
automatically leads to the conclusion that he is the perpetrator of the<\/p>\n
crime.\n<\/p>\n
      22. One may recall here that the prosecution has a case that<\/p>\n
Cr.A.2019\/05                       18<\/span><\/p>\n
the accused wanted to deprive the victim of her ornaments and in<\/p>\n
that process, the accused caused her death by pushing her into the<\/p>\n
river. If that be so, there would have been use of force by the<\/p>\n
accused to remove the ornaments of Selvarani and she would have<\/p>\n
certainly resisted. There is no evidence at all on any such resistance<\/p>\n
and it is too much to believe that she would have voluntarily given all<\/p>\n
her ornaments to the accused. It was suggested at the time of<\/p>\n
hearing that it can be after the death of Selvarani, that the ornaments<\/p>\n
could have been removed. The prosecution case is that after having<\/p>\n
deprived Selvarani of all her ornaments, she was pushed into the<\/p>\n
river. At the time of evidence, there was shift in the stand. The case<\/p>\n
was that Selvarani had gone to the river to wash her face and hands.<\/p>\n
While doing so, Selvarani slipped and fell into the river. If that be so,<\/p>\n
the ornaments could have been removed only after the victim was<\/p>\n
dead. It is too much to believe that after Selvarani drowned in the<\/p>\n
river, the accused brought the body to the bank of the river, removed<\/p>\n
the ornaments and threw her body back into the river. Then, the<\/p>\n
recovery of MO1 assumes importance. Even according to the<\/p>\n
prosecution, that is said to be the chappals worn by Selvarani. It is<\/p>\n
rather inconceivable that a person, who wanted to cause the death of<\/p>\n
Cr.A.2019\/05                      19<\/span><\/p>\n
Selvarani and keep it as a secret, would have retained her chappals<\/p>\n
as a memento. If he could push Selvarani into the river, he would<\/p>\n
have easily thrown the chappals as well into the river. The recovery<\/p>\n
of MO1 slippers, therefore, does not inspire confidence in the mind of<\/p>\n
this Court.\n<\/p>\n
      23. Ext.P17(a) and (b) are the confession statements, stated to<\/p>\n
have been furnished by the accused, which led to the recovery of<\/p>\n
MO1 slippers, MO2 to MO5 gold ornaments and MO9 series dress,<\/p>\n
which is said to have been worn by the accused.          The relevant<\/p>\n
portion of the confession statement reads as follows :<\/p>\n
It must at once be noticed that none of the above statements<\/p>\n
contains authorship of concealment. PW18 in his evidence also,<\/p>\n
does not speak about the accused mentioning about authorship of<\/p>\n
concealment. If the statements given by the accused, which led to<\/p>\n
the recovery of the material objects, do not contain the authorship of<\/p>\n
Cr.A.2019\/05                        20<\/span><\/p>\n
concealment, they cannot fall under S.27 of the Indian Evidence Act.<\/p>\n
In this context, it will be useful to refer to the relevant decisions. In<\/p>\n
the decision reported in     George v. State (2005(3) KLJ 593), a<\/p>\n
Division Bench of this Court has held as follows :<\/p>\n
                   “A reading of the confession alleged to have been<\/p>\n
            made by the appellant shows that he had not stated<\/p>\n
            anything about the concealment of those articles. He only<\/p>\n
            stated that if he was taken to the place, he will show the<\/p>\n
            articles. One of the primary requisites to make recovery in<\/p>\n
            pursuance of the confession made by the accused under<\/p>\n
            Section 27 of the Evidence Act, the authorship of the<\/p>\n
            concealment of articles must be proved. Unless the<\/p>\n
            authorship of concealment is established, the recovery in<\/p>\n
            pursuance of the information stated to have been<\/p>\n
            furnished by the accused will not fall under discovery as<\/p>\n
            envisaged under Section 27 of the Indian Evidence Act.”<\/p>\n<\/blockquote>\n
In Sankaranarayanan v. State of Kerala<\/a> (2006(3) KLT 429), a<\/p>\n
Division Bench of this Court has held as follows :<\/p>\n
            “We would have examined the respective contentions of<\/p>\n
            the learned counsel based upon the two decisions as<\/p>\n
            mentioned above in greater details, but there may be no<\/p>\n
Cr.A.2019\/05                      21<\/span><\/p>\n
            necessity to do so as a Division Bench of this Court in<\/p>\n
            George @ Kunju v. State in Cri.Appeal No.15 of 2003<\/p>\n
            decided on 8th September, 2005 has dealt with this<\/p>\n
            controversy and observed as follows :\n<\/p><\/blockquote>\n
                  ‘The decision rendered in Suresh’s case (supra) was<\/p>\n
            followed in David Rozario’s case (supra) also. But the<\/p>\n
            decisions in Suresh’s case and David Rozario’s case were<\/p>\n
            rendered by a Bench consisting of two judges. In Jaffer<\/p>\n
            Hussain Dastgir’s case (supra) and Mahabir Biswas’ case<\/p>\n
            (supra) the decisions were rendered by a Bench consisting<\/p>\n
            of three Judges. We respectfully follow the decisions<\/p>\n
            rendered by the Larger Bench and hold that unless the<\/p>\n
            authorship of concealment is established, the recovery in<\/p>\n
            pursuance of the information stated to have been<\/p>\n
            furnished by the accused will not fall under ‘discovery’ as<\/p>\n
            envisaged under S.27 of the Indian Evidence Act.”<\/p>\n<\/blockquote>\n
                  Before arriving at the conclusion as reproduced<\/p>\n
            above, the Division Bench of this Court relied upon a<\/p>\n
            number of Supreme Court decisions in Jaffer Hussein<\/p>\n
            Dastagir v. State of Maharashtra (AIR 1970 SC 1934),<\/p>\n
            Mohammed Inayattullah v. State of Maharashtra (AIR<\/p>\n
Cr.A.2019\/05                     22<\/span><\/p>\n
            1976 SC 483), Bahadul v. State of Orissa (AIR 1979 SC<\/p>\n
            1262), Pohalya v. State of Maharashtra (AIR<\/a> 1979 SC<\/p>\n
            1949), Dudh Nath Pandey v. State of U.P.<\/a>(AIR 1981 SC<\/p>\n<\/blockquote>\n
            911), Fr.George Cherian v. State of Kerala (ILR 1989(2)<\/p>\n
            Kerala 95), Mahabir Biswas v. State of W.B.<\/a> (1995)2 SCC<\/p>\n
            250 and P.P.Mundra etc. v. State of Rajasthan & Anr. etc.<\/p>\n
            (JT 1998 (1) SC 659). We are in respectful agreement with<\/p>\n
            the view expressed by the Division Bench as quoted above<\/p>\n
            and thus hold that the admissible part of the statement<\/p>\n
            made by A1 pursuant to which the alleged crime gun was<\/p>\n
            recovered, only proves that he knew that the gun was<\/p>\n
            recovered only proves that he knew that the gun was<\/p>\n
            concerned from where it was taken at his instance, but on<\/p>\n
            such knowledge, no interference of committing the murder<\/p>\n
            can be drawn. One of the primary requisites to make a<\/p>\n
            recovery under S.27 of the Evidence Act is that the<\/p>\n
            authorship of concealment of articles must be proved.”<\/p>\n<\/blockquote>\n
Going by the principles laid down in the above decisions, it follows<\/p>\n
that the statement leading to the recovery of the material objects<\/p>\n
cannot fall under S.27 of the Evidence Act. However, as noticed in<\/p>\n
the decisions reported above, even assuming S.27 of the Indian<\/p>\n
Cr.A.2019\/05                          23<\/span><\/p>\n
Evidence Act cannot be taken aid of, the act of recovery based on<\/p>\n
the conduct of the accused becomes relevant under S.8 of the Indian<\/p>\n
Evidence Act.\n<\/p>\n
      24. The only item of evidence therefore, is the recovery of MO2<\/p>\n
to MO5 at the behest of the accused. It has also to be noticed that<\/p>\n
the recovery of the slippers cannot be accepted. The conduct of the<\/p>\n
accused which becomes relevant under S.8 of the Indian Evidence<\/p>\n
Act, by itself is insufficient to fasten the liability on him. The evidence<\/p>\n
of PW4 would clearly show that the accused was taken to the police<\/p>\n
station on 7.10.2000 itself and the police were appraised of the entire<\/p>\n
facts and circumstances. It is surprising to note that the next day, i.e.,<\/p>\n
on 8.10.2000, when PW4 gave a statement, it is recorded as the first<\/p>\n
information statement. The assertions of PW16 and PW18 that they<\/p>\n
had no information about the incident, before Ext.P6 was lodged,<\/p>\n
cannot be obviously true. This creates considerable doubt regarding<\/p>\n
the prosecution case. The case of the prosecution that the accused<\/p>\n
was arrested on 10.10.2009 cannot be readily accepted. One must<\/p>\n
remember that the body of Selvakumari was found floating in the<\/p>\n
river on 09.10.2000. The result is that :\n<\/p>\n
      1. The last seen theory cannot be accepted for reasons already<\/p>\n
Cr.A.2019\/05                      24<\/span><\/p>\n
mentioned.\n<\/p>\n
      2. The recovery of MO1 slippers is most unconvincing.<\/p>\n
      3. There is no evidence at all to show as to how the accused<\/p>\n
came into the possession of MO2 to MO5.\n<\/p>\n
      The ornaments are stated to have been belonging to Selvarani.<\/p>\n
No injuries were found on the body of the victim, corresponding to<\/p>\n
any force that would have been exerted by the accused to remove<\/p>\n
the ornaments. Nobody has a case that the victim voluntarily handed<\/p>\n
over the ornaments to the accused.\n<\/p>\n
      25. There is absolutely no evidence to show that the death of<\/p>\n
Selvarani occurred within a short while, after she and the accused<\/p>\n
were seen together so as to draw the conclusion that no one else<\/p>\n
could have been intervened and caused the death of Selvarani.<\/p>\n
Since there is suspicion in the recording of F.I. statement, it is unsafe<\/p>\n
to rely on the evidence of PW16 and PW18. We are, therefore,<\/p>\n
unable to accept the findings of the court below that the prosecution<\/p>\n
has succeeded in establishing the case against the accused. It may<\/p>\n
be that the prosecution had been able to show that it might have<\/p>\n
been the accused, who had caused the death of Selvakumari. That<\/p>\n
is far from saying that he must have done it. Unfortunately for the<\/p>\n
Cr.A.2019\/05                       25<\/span><\/p>\n
prosecution, the test is that he must have done it.<\/p>\n
      26. In the result, the appeal is allowed. The conviction and the<\/p>\n
sentence imposed by the court below are set aside. The accused<\/p>\n
stands acquitted for the offences punishable under S.302 and 397<\/p>\n
IPC. He shall be set at liberty unless his presence is required in any<\/p>\n
other case. Any payment made by him towards fine, shall be<\/p>\n
refunded to him.<\/p>\n
\n\n\n\n\n                                   K.BALAKRISHNAN NAIR, JUDGE\n\n\n\n\n                                   P.BHAVADASAN, JUDGE\n\n\n\nsta\n\nCr.A.2019\/05    26\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court T.Raja vs State Of Kerala on 4 November, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-61747","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nT.Raja vs State Of Kerala on 4 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/t-raja-vs-state-of-kerala-on-4-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"T.Raja vs State Of Kerala on 4 November, 2009 - 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