{"id":70507,"date":"2006-12-12T00:00:00","date_gmt":"2006-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishnankutty-kokko-krishnan-vs-state-of-kerala-represented-by-on-12-december-2006"},"modified":"2015-03-24T17:05:15","modified_gmt":"2015-03-24T11:35:15","slug":"krishnankutty-kokko-krishnan-vs-state-of-kerala-represented-by-on-12-december-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishnankutty-kokko-krishnan-vs-state-of-kerala-represented-by-on-12-december-2006","title":{"rendered":"Krishnankutty @ Kokko Krishnan vs State Of Kerala – Represented By … on 12 December, 2006"},"content":{"rendered":"
Kerala High Court<\/div>\n
Krishnankutty @ Kokko Krishnan vs State Of Kerala – Represented By … on 12 December, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 330 of 2005()\n\n\n1. KRISHNANKUTTY @ KOKKO KRISHNAN,\n                      ...  Petitioner\n2. SURENDRAN @ PETTI SUREN,\n\n                        Vs\n\n\n\n1. STATE OF KERALA - REPRESENTED BY PUBLIC\n                       ...       Respondent\n\n                For Petitioner  :SRI.M.RAJAGOPALAN NAIR\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice J.B.KOSHY\nThe Hon'ble MR. Justice K.PADMANABHAN NAIR\n\n Dated :12\/12\/2006\n\n O R D E R\n            J.B.KOSHY & K.PADMANABHAN NAIR, JJ.\n\n                        -------------------------------\n\n                    CRL.APPEAL.NO.330 OF 2005 ()\n\n                      -----------------------------------\n\n         Dated this the  12th day of  December, 2006\n\n\n                                J U D G M E N T\n<\/pre>\n
PADMANABHAN NAIR, J.\n<\/p>\n
      Accused   1   and   2   in   S.C.No.202\/2002   on   the   file   of   the<\/p>\n
Additional          Sessions          Judge            (Fast         Track         Court-I),<\/p>\n
Thiruvananthapuram   are   the   appellants.     They   have   filed   this<\/p>\n
appeal   challenging   the   conviction   and   sentence   imposed   on<\/p>\n
them under Sections 302 and 201 read with Section 34 of the<\/p>\n
Indian   Penal   Code.     Sessions   Judge   found   appellants   guilty   of<\/p>\n
offences punishable under Section 302 read with   34 of I.P.C.,<\/p>\n
convicted and sentenced to undergo imprisonment for life and<\/p>\n
to pay a fine of Rs.25,000\/- each.   In default of payment of fine<\/p>\n
they   were   directed   to   undergo   rigorous   imprisonment   for   two<\/p>\n
years   each.     They   were   also   found   guilty   of   the   offences<\/p>\n
punishable under Section 201 read with 34 of I.P.C., convicted<\/p>\n
and sentenced to undergo rigorous imprisonment for two years<\/p>\n
each   and   to   pay   a   fine   of   Rs.5,000\/-   each.       In   default   of<\/p>\n
                      CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                        2<\/span><\/p>\n
payment   of   fine   they   were   directed   to   undergo   rigorous<\/p>\n
imprisonment for three  months each.\n<\/p>\n
       2.   Prosecution case is as follows:   Deceased Raveendran<\/p>\n
as well as five accused involved in this case were persons who<\/p>\n
were   eking   their   livelihood   by     distilling   of   illicit   arrack.\n<\/p>\n
Deceased Raveendran used to commit theft of wash stored in<\/p>\n
tanks   by   accused.     They   became   inimical   and   formed<\/p>\n
themselves   into   an   unlawful   assembly   at   about   5.30   p.m.   on<\/p>\n
29.10.1998 armed with deadly weapons like fire wood at river<\/p>\n
purampokku on   western side  of a rubber estate belonging to<\/p>\n
one   Sulochana.     On   that   day   A2   to   A4   were   engaged   in   the<\/p>\n
process   of   manufacturing   illicit   liquor.     Deceased   came   there<\/p>\n
before 2 p.m.  A2 to A4 asked him to sit there and he was given<\/p>\n
food.     At   about   5.30   p.m.     the   1st  appellant   who   was   the   1st<\/p>\n
accused   came   there.     He   questioned   A2   to   A4   why   the<\/p>\n
deceased   who     committed   theft   of     wash   was   allowed   to   sit<\/p>\n
there.   Deceased   uttered obscene words against A1.   A1 beat<\/p>\n
Raveendran with a   piece of fire wood which was a weapon of<\/p>\n
                    CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                     3<\/span><\/p>\n
dangerous   nature.       Raveendran   fell   down   and   became<\/p>\n
unconscious.     Accused   called   him.     But   he   did   not   respond.\n<\/p>\n
They  were  under  the  impression  that Raveendran had  passed<\/p>\n
away.  They concealed his dead body in the nearby bushes and<\/p>\n
informed A5.     On the next day   at about 12 noon all   accused<\/p>\n
together tied both hands and legs of Raveendran to a trunk of<\/p>\n
tree  which  was submerged  at  the bottom of   Karamana river.\n<\/p>\n
Raveendran died due to drowning.\n<\/p>\n
      3.     PW1,   son   of   deceased   Raveendran   gave   Ext.P1<\/p>\n
F.I.Statement   before   PW29,     Head   Constable   of   the   Aryanad<\/p>\n
police station at about 11.30 a.m. on 9.11.1998.  He stated that<\/p>\n
Raveendran   was   missing   from   29.10.1998   at   8.30   a.m.<\/p>\n
onwards.     Based   on   Ext.P1   F.I.Statement   PW29   registered<\/p>\n
Ext.P1(a)   F.I.R.   as   Crime   No.313\/98   under   the   caption   “man<\/p>\n
missing”.         Subsequently   investigation   was   taken   over   by<\/p>\n
PW30,   Assistant  Sub   Inspector.    He   questioned  witnesses  and<\/p>\n
took their statements.  Thereafter investigation was taken over<\/p>\n
by PW32, Circle Inspector of Police on 8.3.1999.  He questioned<\/p>\n
                       CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                         4<\/span><\/p>\n
witnesses.     On   17.3.1999   he   arrested   all   accused   from   the<\/p>\n
house of A5.  They confessed on having committed the offence.\n<\/p>\n
Based on the information furnished by A2 that   fire wood used<\/p>\n
by A1 for beating Raveendran was thrown by  him in a rubber<\/p>\n
estate,  a search was conducted and MO3 firewood was seized<\/p>\n
under   Ext.P18   seizure   mahazar.    Further  case   of     prosecution<\/p>\n
was that A1 and A5 confessed for having taken the dead body<\/p>\n
of Raveendran and trying   same to   the trunk of a tree which<\/p>\n
was sub merged at  bottom of  river.  The tree trunk could not<\/p>\n
be seized.  In the meanwhile, one Surendran Nair gave Ext.P22<\/p>\n
F.I.statement   before   Sub   Inspector   of   Police,   Aryanad   Police<\/p>\n
station,   at   8   p.m.   On   4.3.1999.       It   was   stated   that  he  saw   a<\/p>\n
deadbody of a person floating in the Karamana river.  Based on<\/p>\n
Ext.P22   Statement   Ext.P22   (a)   F.I.R.     was   registered.     The<\/p>\n
deadbody was taken out of water.  On 5.3.1999 PW2 conducted<\/p>\n
inquest on the deadbody.   Thereafter PW18  doctor conducted<\/p>\n
post   mortem   examination   and   issued   Ext.P12   Post   Mortem<\/p>\n
certificate.   Superimposition technique was adopted.   A part of<\/p>\n
investigation   was   conducted   by   PW32   and   PW33.\n<\/p>\n
                       CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                         5<\/span><\/p>\n
Investigation          was         completed         by         PW36,         Assistant<\/p>\n
Superintendent   of   Police.   PW34   filed   the   final   report.     The<\/p>\n
accused   were   arrested   and   subsequently   released   on   bail.\n<\/p>\n
The   learned   Magistrate   committed   the   case   to   the   court   of<\/p>\n
Sessions after observing    formalities.   Learned  Sessions Judge<\/p>\n
made   over   this   case   to     Additional   Sessions   Judge   for   trial.\n<\/p>\n
When   the   appellant   and   other   accused   appeared   before   the<\/p>\n
learned Sessions Judge, charges under Sections 143, 147, 148,<\/p>\n
201 and 302 read with 149 of I.P.C.  were framed after hearing<\/p>\n
both sides.  Charges were read over and explained to accused.\n<\/p>\n
They pleaded not guilty.\n<\/p>\n
      4.     On   the   side   of   the   prosecution,   PWs.1   to   36   were<\/p>\n
examined, Exts.P1 to P27 proved and marked and MOs.1 to 7<\/p>\n
identified.   After the prosecution evidence was over,   accused<\/p>\n
were  questioned  under Section  313  of  the  Criminal  Procedure<\/p>\n
Code.  They denied all  allegations levelled against them.  Since<\/p>\n
no   grounds   were   made   out   to   acquit     accused   under   Section<\/p>\n
232   of   Cr.P.C.,   they   were   called   upon   to   enter   on   into   their<\/p>\n
                      CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                         6<\/span><\/p>\n
defence.   DW1 was examined and Exts.D1 to D5 series proved<\/p>\n
and  marked.  When the case was posted for defense evidence,<\/p>\n
a   report   was   submitted     by   the     counsel   for   the   3rd  accused<\/p>\n
stating   that   3rd  accused   died   on   8.11.2004.     The   police   after<\/p>\n
verification submitted that A3 died on 8.11.2004.   So  charges<\/p>\n
against A3   abated.   Learned Sessions Judge found A1 and A2<\/p>\n
guilty   of   the   offence   punishable   under   Sections   302   and   201<\/p>\n
read with Section 34 of the I.P.C.   All accused were found not<\/p>\n
guilty of the offences under Section 143, 147, 148 and 149 and<\/p>\n
acquitted.\n<\/p>\n
       5.        Heard   Sri.M.Rajagopalan   Nair   counsel   for   the<\/p>\n
appellants and Sri.K.C.Santhosh Kumar, Public Prosecutor.\n<\/p>\n
       6.   The learned counsel appearing for the appellants has<\/p>\n
argued   that   there   is   absolutely   no   evidence   to   support   the<\/p>\n
findings   of   the   court   below   that   appellants   are   guilty   of   the<\/p>\n
offences  punishable   under  Section   302   and   201   of   I.P.C.   read<\/p>\n
with   34   of     I.P.C.     It   is   argued   that   there   is   no   convincing<\/p>\n
                        CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                           7<\/span><\/p>\n
evidence   to   show   that   Raveendran   died   at   5.30   p.m.   on<\/p>\n
29.10.1998.       It   is   argued   that   even   according   to   the<\/p>\n
prosecution,   Raveendran   died   not   because   of   any   injuries<\/p>\n
sustained by him but because of  drowning.   It is argued that in<\/p>\n
absence   of   any   material   to   hold   that   the   appellants   applied<\/p>\n
force   to   keep   the   body   of   Raveendran   under   water   so   as   to<\/p>\n
cause   suffocation     the   appellants  cannot  be   convicted  for   the<\/p>\n
offence punishable under Section 302.   It  is argued that even<\/p>\n
accepting   the   entire     prosecution   case   as   such   no   offence<\/p>\n
under   Section   302   of   I.P.C.   is   made   out   in   this   case.         It   is<\/p>\n
pointed   out   that   the   prosecution   case   was   when   deceased<\/p>\n
came   to   the   place   of   occurrence   A1   and   A5   were   not   there.\n<\/p>\n
The other accused gave deceased food and while Raveendran<\/p>\n
was taking food A1 came there.   A1 questioned accused nos.2<\/p>\n
to 4 why they served food to a person who was steeling their<\/p>\n
wash.     The   deceased   called   A1   names.         A1   took   out   a   fire<\/p>\n
wood lying there and beat Raveendran.   A1 to A4 tried to wake<\/p>\n
him   up.     There   was   no   respondence.     Accused   assumed   that<\/p>\n
Raveendran   passed   away.     They   concealed   the   deadbody<\/p>\n
                      CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                        8<\/span><\/p>\n
among the bush and on the next day tied the same to the trunk<\/p>\n
of   submerged   timber   piece.     He   fell   unconscious.       It   is   also<\/p>\n
argued that there is no evidence to hold that deceased was last<\/p>\n
seen in the company of the accused.     It is argued that it is a<\/p>\n
case   which   the   prosecution   attempted   to   prove   by   direct<\/p>\n
evidence.   It is argued that if the prosecution wanted to prove<\/p>\n
the   guilty   of   accused   by   adducing   direct   evidence   thereafter<\/p>\n
the   accused     cannot   be   convicted   relying   on   circumstantial<\/p>\n
evidence.   Prosecution case is that deceased Raveendran told<\/p>\n
his family members that he was going for manual labour left his<\/p>\n
house at about 8.30 a.m. on 29.10.1998.   Ext.P1 F.I.statement<\/p>\n
was recorded at 11.30 a.m. on 9.11.1998.  In Ext.P1 also it was<\/p>\n
stated that deceased left the house at 8.30 a.m. on 29.10.1998<\/p>\n
stating that he is going to do  manual labour.  On 4.3.1999 the<\/p>\n
deadbody   was   found   floating   in   the   Karamana   river.       The<\/p>\n
deadbody   was   completely   decomposed   and   beyond<\/p>\n
recognition.     A   crime   was   registered   under   the   caption   “man<\/p>\n
missing”.  Ext.P2 inquest was conducted on 5.3.1999.  The son<\/p>\n
of the deceased identified dead  body as that of   Raveendran.\n<\/p>\n
                     CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                       9<\/span><\/p>\n
Thereafter post mortem examination was conducted.   Ext.P12<\/p>\n
is   the   post   mortem   certificate.     The   following   injuries   were<\/p>\n
noted   by   PW18,   in   Ext.P12   post   mortem   certificate.     PW18<\/p>\n
proved   the   post   mortem   certificate   also.     The   following   were<\/p>\n
the findings:\n<\/p>\n
             “Body   was   that   of   an   adult   male   in   a   state   of<\/p>\n
      advanced   decomposition.     Both   forearms,   hands   and<\/p>\n
      feet   were   missing   without   any   infiltration   of   blood<\/p>\n
      around.     The   available   portion   measured   157   cm   in<\/p>\n
      length   and   46   kgm   in   weight.     Head,   both   arms   and<\/p>\n
      legs   were   completely   skeletonised   with   adipocere<\/p>\n
      formation   on   the   trunk   and   thighs.     Eyeballs   were<\/p>\n
      softened,   glabella   and   superciliary   ridges   were<\/p>\n
      prominent.     Frontonasal   junction   was   distinct   with<\/p>\n
      rounded   orbital   margins.     The   zygoma   and   mastoid<\/p>\n
      processes were prominent with deep digastric grooves.<\/p>\n
      The chin was square in shape with everted angles.  The<\/p>\n
      ental formula was as follows:-\n<\/p><\/blockquote>\n
<\/blockquote>\n
    -- 17  16  15   --  --  --  --    |  --  --  --   24  25   26   27  28\n\n    38 37 36  35 34 33 32 31 | 41 42 43 44  45   --     47  48\n\n\n\n\n<\/pre>\n
      The   teeth   showed   moderate   periodontosis   with<\/p>\n
      brownish   stains   on   the   inner   aspect   and   were   loose.<\/p>\n
      The sockets of left upper central incisor and that of first<\/p>\n
      molar   on   left   lower   quadrant   were   completely<\/p>\n
      resorbed.         The   other   empty   sockets   showed<\/p>\n
      postmortem   loss   of   teeth.     The   sagittal   and   coronal<\/p>\n
      sutures fused completely internally but externally their<\/p>\n
      fusion was not  complete. Xiphisternum fused with the<\/p>\n
                     CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                       10<\/span><\/p>\n
      body and manubrium has not fused. A few black hairs<\/p>\n
      3   –   4   cm   in   length  were   present   on   the   public   region<\/p>\n
      and were loose.  External genitalia was missing and the<\/p>\n
      surrounding   tissues   did   not   show   any   infiltration   of<\/p>\n
      blood.     The   pelvic   cavity   was   deep   with   narrow   inlet<\/p>\n
      and outlet.   The curvature of sacrum was uniform and<\/p>\n
      greater   sciatic   notch   and   subpubic   angle   were   acute<\/p>\n
      (Body was not kept in cold room).\n<\/p><\/blockquote>\n
<\/blockquote>\n
             Antemorem   injuries   to   soft   tissues   if   any,   could<\/p>\n
      not   be   detected   due   to   decomposition   changes.     No<\/p>\n
      injury was noted to the available bones.<\/p>\n<\/blockquote>\n
             The   skull   was   intact   and   the   brain   was   in   a<\/p>\n
      liquified   stage   having   passages   including   hyoid   bone<\/p>\n
      were   missing.     The   air   passages   contained   fine   sand<\/p>\n
      articles in the major divisions with decomposition of its<\/p>\n
      mucosa.     The   chest   cavities   contained   30ml   of   thick,<\/p>\n
      brownish fluid on each side.  Lungs were dark, soft and<\/p>\n
      pulpy.  Stomach was empty without any peculiar smell,<\/p>\n
      mucosa decomposed.  All other internal organs were in<\/p>\n
      an advanced state of decomposition.  Viscera and long<\/p>\n
      bone   (as   requested   by   the   investigating   officer)   have<\/p>\n
      been preserved and sent for chemical analysis.  Tissue<\/p>\n
      bits   and   water   sample   were   also   forwarded   to   the<\/p>\n
      Chemical examiner’s Laboratory for doing diatom test.<\/p>\n
      Tooth Nos.(31) and (41) were subjected to Gustafson’s<\/p>\n
      technique  of   age   determination  and  the  age  could  be<\/p>\n
      471  5   years.     The   skull   and   mandible   have   been<\/p>\n
      forwarded   to   the   Forensic   Science   Laboratory   for<\/p>\n
      superimposition   technique   as   requested   by   the<\/p>\n
      investigating officer.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
PW18   opined   that   death   might   have   occurred   between   three<\/p>\n
weeks and three months prior to the date of the post mortem<\/p>\n
                     CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                      11<\/span><\/p>\n
examination.     Cause   of   death   was   stated   as   drowning.\n<\/p>\n
Prosecution   case   was   that   the   victim   was   missing   from<\/p>\n
29.10.1998   onwards.       Identity   of   the   deadbody   as   that   of<\/p>\n
Raveendran  was  satisfactorily  established  by   Superimposition.\n<\/p>\n
Ext.P15 and P16 series are prints and negatives of the photos<\/p>\n
taken after superimposition.  From  the medical evidence alone<\/p>\n
it is not possible to held that it was a case of homicide.\n<\/p>\n
      7.     There   is   no     eye   witness   to   the   entire   incident.\n<\/p>\n
According to  prosecution, PW3 had seen a part of  incident and<\/p>\n
PWs.7   and   8   saw     deceased   in   the   company   of   accused   and<\/p>\n
that   will   show   that   it   was   the   accused   who   murdered<\/p>\n
Raveendran.       PW7   deposed   that   at   about   2   p.m.   on<\/p>\n
29.10.1998 he along with his uncle Chellan and  Ratheesh went<\/p>\n
to forest for cutting   timber for repairing  house.  On their way<\/p>\n
back   he   saw     deceased   and   four   persons   sitting   together.\n<\/p>\n
Chellan asked them whether it was possible to give him some<\/p>\n
arrack.     They   did   not   say   anything.     According   to   him,     the<\/p>\n
persons   found   there   was   A1   to   A4.     Admittedly   A5   was   not<\/p>\n
                     CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                     12<\/span><\/p>\n
there at that time.   Raveendran and acused were chatting and<\/p>\n
appeared to be in cordial terms.   During cross examination he<\/p>\n
had   admitted   that   he   was   questioned   by   police   about     six<\/p>\n
months   after   death   of   Raveendran.     Evidence   shows   that   he<\/p>\n
was   not   capable   of   speaking   about     various   months   in<\/p>\n
Malayalam or English calender.  According to him he along with<\/p>\n
others were walking along the opposite side of  the river when<\/p>\n
accused and deceased were sitting.   Width of the river at that<\/p>\n
place was more than   30  metres.   PW7 further stated that on<\/p>\n
the next day itself  he told the wife and children of Raveendran<\/p>\n
that   he   saw   Raveendran   in   the   company   of   accused.     But   he<\/p>\n
had not inform the police.  It is also very pertinent  that  Ext.P1<\/p>\n
F.I.Statement   was   given   by   the   son   of   the   deceased   only   on<\/p>\n
9.11.1998 and on that day he did  not say  anything about the<\/p>\n
information given to him by PW7.\n<\/p>\n
      8.     According   to   the   prosecution   PWs.7   and   8     came<\/p>\n
together.  PW8 also deposed that he had seen deceased along<\/p>\n
with the company of accused Nos.1 to 4.  He saw the deceased<\/p>\n
                       CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                          13<\/span><\/p>\n
on 29.9. but he did not remember the year.   He also deposed<\/p>\n
that   he   had   seen   four   persons.    He   also   deposed   that   on   the<\/p>\n
third   day   he   informed     wife   and   children   of     missing   person<\/p>\n
about the fact that he had seen Raveendran in the company of<\/p>\n
A1 to A4.  According to him he was questioned by  police about<\/p>\n
two   months   after   date   of   occurrence   and   again   questioned<\/p>\n
after a lapse of about three months.  But on 5.3.1994 the police<\/p>\n
had no information regarding the story spoken to by PWs.7 and<\/p>\n
8.     PW7   had   admitted   that   his   eye   sight   was   very   poor.       He<\/p>\n
admitted that he went to forest for committing theft of  timber<\/p>\n
and   normally   he   will   not   go   to     forest   for   committing   theft<\/p>\n
during day time.   He admitted that the names of the accused<\/p>\n
were told  by  him as requested by    the children of   deceased.\n<\/p>\n
He had admitted that on  the   previous day of his examination<\/p>\n
he came to   court along with   son of   deceased and   Aryanad<\/p>\n
Police   tutored   him.       When   he   was   cross   examined   with<\/p>\n
permission   he   was   unable   to   read   the       date   looking   into<\/p>\n
calender   or   time   shown   in   the   clock   fixed   on   the   wall   of   the<\/p>\n
court   hall   as   his   eye   sight   was     poor.     So   no   reliance   can   be<\/p>\n
                     CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                       14<\/span><\/p>\n
placed   on   the   evidence   of   PWs.7   and   8.     We   disbelieve   their<\/p>\n
evidence.   Even if their evidence is accepted the same is   not<\/p>\n
sufficient to convict the appellants.   According to PWs.7 and 8<\/p>\n
they saw deceased and A1 to A4 sitting together at 2 p.m. PW3<\/p>\n
deposed   that   he   had   seen     deceased     alive   at   5.30   p.m.     on<\/p>\n
that day.   PW3 deposed that he had seen the deceased along<\/p>\n
with     accused   Nos.1   to   4   at   about   5.30   p.m.   on   29.10.1998.\n<\/p>\n
PW3   was   attending   the   call   of   nature.     He   heard   somebody<\/p>\n
calling     names  and     looked   towards   the   direction   from   where<\/p>\n
sound   came.     Then   he   saw   accused   and   deceased   on   the<\/p>\n
opposite   side   of   river.     He   deposed   that   A1     bet   Raveendran<\/p>\n
and   he   fell   down.     PW3   also   deposed   that     others   asked<\/p>\n
Raveendran   to   get   up.     But   he   did   not   get   up.     So   PW3<\/p>\n
suspected   some   foul   play   and   left   the   place   immediately.\n<\/p>\n
According to him all the five accused were there.  During cross<\/p>\n
examination   he   had   admitted   that   the   Circle   Inspector<\/p>\n
conducted search in his property and questioned him.   But he<\/p>\n
did not disclose anything about the incident which he had seen<\/p>\n
to   anybody   including   Circle   Inspector   of   Police.       PW3   had<\/p>\n
                     CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                       15<\/span><\/p>\n
deposed that there was a rumor that  deceased was kept away<\/p>\n
by his family members.    He deposed that he was called to the<\/p>\n
police   station.     At   that   time     one   police   constable   by   name<\/p>\n
Basukutty     asked   him   to   divulge     any   information   he   knows<\/p>\n
about   the   missing   man.       So   he   went   to   the   Circle   Inspector<\/p>\n
and gave the details.  He had admitted that the Circle Inspector<\/p>\n
asked him to say the names of five accused.  Evidence of PW3<\/p>\n
shows that   distance between the place of occurrence and the<\/p>\n
place where he was standing was more than 50 metres.  During<\/p>\n
cross   examination   he   deposed   that   he   was   going   to   another<\/p>\n
place   to   seek   the   assistance   of   one   Narayanan   for   retrieving<\/p>\n
timber from river.   But he did not state that fact to the police.\n<\/p>\n
He  had   also   admitted   that   normally   it   was   not    necessary  for<\/p>\n
him   to   go   to   that   place   and   he   happened   to   be   there   only<\/p>\n
because he was passing through that place.   The details given<\/p>\n
by PW3 about the person whom he wanted to meet shows that<\/p>\n
he   was   not   speaking   truth.       Evidence   of   PW3   appears   to   be<\/p>\n
highly   artificial   especially   his   conduct   in   not   disclosing   the<\/p>\n
names of the assailants to the relatives of deceased or to the<\/p>\n
                     CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                       16<\/span><\/p>\n
police immediately after the incident.    So  no  reliance can be<\/p>\n
placed on the evidence of PW3 also.    It is not possible to hold<\/p>\n
that   deceased was   seen last in the company of   accused   by<\/p>\n
PW3     at about 5.30  p.m. on 29.10.1998.   It  is not  possible   to<\/p>\n
convict the appellants based on the uncorroborated testimony<\/p>\n
of PW3 alone.\n<\/p>\n
      9.  Apart from the evidence of PW3 the only other piece of<\/p>\n
evidence relied on by the prosecution is   the recovery of MO3<\/p>\n
firewood.     Prosecution   case   was   that   it   was   A1   who   bet<\/p>\n
deceased with MO3.  But the same was recovered in pursuance<\/p>\n
of   the   information   furnished   by   2nd  accused.     Ownership   of<\/p>\n
concealment was also   proved.   Learned Public Prosecutor has<\/p>\n
argued   that   even   assuming   that   recovery   of   MO3   cannot   be<\/p>\n
considered as a recovery contemplated under Section 27 of the<\/p>\n
Evidence   Act   the   fact   that     accused   pointed   out   the   place   to<\/p>\n
police   from   where   MO3   was   recovered   is   a   relevant   fact<\/p>\n
admissible under Section 8 of the Evidence Act. The seizure of<\/p>\n
MO3 alone is not sufficient to convict the accused.   So   finding<\/p>\n
                     CRL.APPEAL.NO.330 OF 2005 ()<\/p>\n
                                      17<\/span><\/p>\n
of   learned   Sessions   Judge   that   appellants   are   guilty   of   the<\/p>\n
offences under Sections 302 and 201 read with 34 of the Indian<\/p>\n
Penal Code are unsustainable and   liable to be set aside.     We<\/p>\n
do so.\n<\/p>\n
       In   the   result   the   Crl.Appeal   is   allowed.     Conviction   and<\/p>\n
sentence   imposed   on   the   appellants   under   Sections   302   and<\/p>\n
201   of  the Indian Penal Code  are hereby set aside.    They are<\/p>\n
found not guilty of those offences and  acquitted.  Fine, if any,<\/p>\n
paid  by  them shall be  refunded.   They shall be released from<\/p>\n
jail   forthwith   if   their   continued   detention   is   not   required   in<\/p>\n
connection with any other case.\n<\/p>\n
                                                    J.B.KOSHY, JUDGE<\/p>\n
                                 K.PADMANABHAN NAIR, JUDGE<\/p>\n
prp<\/p>\n
  J.B.KOSHY  & K.PADMANABHAN NAIR, JJ.\n<\/p>\n
 ——————————————————–\n<\/p>\n
                            O.P.NO.     OF 2006 ()<\/p>\n
———————————————————\n<\/p>\n
                                    J U D G M E N T<\/p>\n
———————————————————\n<\/p>\n
                             17th November, 2006<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Krishnankutty @ Kokko Krishnan vs State Of Kerala – Represented By … on 12 December, 2006 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 … […]<\/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-70507","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKrishnankutty @ Kokko Krishnan vs State Of Kerala - Represented By ... on 12 December, 2006 - 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\/krishnankutty-kokko-krishnan-vs-state-of-kerala-represented-by-on-12-december-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Krishnankutty @ Kokko Krishnan vs State Of Kerala - 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