Anilmon Thomas v Central Bureau of Investigation

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** **CRL.A.No.930 OF 2012(A)** **[AGAINST THE JUDGMENT DATED 30.4.2012 IN SC 367/2010 OF IIIRD ADDITIONAL SESSIONS COURT (SPECIAL COURT FOR CBI CASES), ERNAKULAM ]** ## **APPELLANT/ACCUSED:** **ANILMON THOMAS S/O.THOMAS KURIAN, NAIKALATH HOUSE, PULLANKUNNU, MALAMPUZHA P.O., PALAKKAD DISTRICT, KERALA STATE.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.T.ANIL KUMAR SRI.MANU TOM SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI.THOMAS ABRAHAM (NILACKAPPILLIL)** ## **RESPONDENT/COMPLAINANT:** **CENTRAL BUREAU OF INVESTIGATION, SCB/CHANNAI REPRESENTED BY STANDING COUNSEL, CBI, HIGH COURT OF KERALA.** **R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2019,** **THE COURT ON 07.11.2019 DELIVERED THE FOLLOWING:** **Crl.A.No.930 of 2012** ## **:-2-:** ## **J U D G M E N T** ## **Dated this the 7[th] day of November, 2019** ## **N.ANILKUMAR, J.** The appellant is the accused in S.C.No.367/2010 on the file of the IIIrd Additional Sessions Court (Special Court for CBI Cases), Ernakulam. By judgment dated 30.4.2012, the court below found the appellant guilty for the offences punishable under Sections 325,328,363,367,377,302 and 201 of the Indian Penal Code, 1860 (for short 'the IPC'), and convicted thereunder. Accordingly, the court below sentenced the appellant to undergo rigorous imprisonment for life under Section 302 of the IPC with a specific direction that the accused should not be released from the prison till the rest of his life, to undergo rigorous imprisonment for three years each and to pay fine of Rs.10,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year each for the offences punishable under Section 325 and 201 of IPC, to undergo rigorous imprisonment for five years each and to pay fine of Rs.25,000/- each, in default to undergo rigorous imprisonment for one year each for the offences punishable under Sections 328 and 367 of IPC and to undergo rigorous imprisonment for life for the offence under Section 377 of IPC. No **Crl.A.No.930 of 2012** ## **:-3-:** separate sentence was imposed for the offence under Section 363 of IPC on the ground that the appellant had been sentenced for the offence under Section 367 of IPC. The period of detention underwent by the appellant as under-trial prisoner was allowed to be set off. Being aggrieved by the conviction and sentence as aforesaid, the appellant is before this Court. 2. The facts and sequence of events leading to the final report and implication of the appellant as unfolded during trial are as follows:- On 11.5.2006, one Ajin, aged 14 years S/o.PW1 Shanthini and T.L.Jayakumar, left his house to attend a summer vacation class at Bappuji Senior Secondary School at Parali in Palakkad District. The boy had some gender identity orientation in childhood and was popularly known as 'chanthupottu' (a male with female gestures or expressions) among his friends. Instead of going to the school, he went to Malampuzha dam for sightseeing and contacted his mother from there over phone. He promised PW1 to return to his house by the evening. However, Ajin did not return to his house by evening as promised by him. On 12.5.2006 morning, PW1 received a reliable information that a deadbody, floating in the Malampuzha dam, was identified as that of Ajin. On the basis **Crl.A.No.930 of 2012** ## **:-4-:** of the First Information Statement furnished by PW3, who is none other than the uncle of the deceased Ajin, PW27- the Sub Inspector of Malampuzha Police Station recorded Ext.P1 First Information Statement and registered Ext.P22 FIR under Section 174 of the Code of Criminal Procedure (for short 'the Cr.P.C.') as early as on 12.5.2006. PW22 the District Police Surgeon, District Hospital, Palakkad on 14.5.2006 conducted postmortem examination on the body of the deceased and issued Ext.P18 Postmortem Certificate. On the basis of the findings in the postmortem report, Section 377 of IPC was incorporated in the case. 3. The chronology of events indicates that the various Officers of the Kerala Police including PW27 the S.I.of Police, Malampuzha Police Station, PW29 the Dy.S.P. Of Police,Palakkad and DW4 the Assistant Commissioner of Police conducted investigation in this case for about three years. Feeling aggrieved by the delay in conducting investigation in a proper manner, PW1, who is none other than the mother of the deceased, filed WP(C)No.506/2009 before this Court for an investigation by the C.B.I. This Court, by judgment dated 25.2.2009, allowed the writ petition and directed the CBI to take over the investigation and **Crl.A.No.930 of 2012** ## **:-5-:** further directed the investigating agency to hand over all material papers to the CBI in this case. Accordingly, the crime was reregistered as RCNo.3/S/2009/CBI/SCB, Chennai on 16.3.2009. Thereupon,PW-31 conducted investigation and questioned all the material witnesses. 4. In the final report dated 30.4.2010 filed by PW31, it is alleged that at 11.30 hours from 11.5.2006, the appellant befriended Ajin, who was moving alone near the Malampuzha dam. The appellant enticed the minor boy and went to a stall located near the bottom of the southern side step of the dam and purchased a fruity juice for Ajin from PW13 at around 12 hours. Thereafter, the appellant took Ajin to a coconut garden at Panninada on the motorcycle and purchased toddy from PW9 at around 13.30 hours. Two packets of food were purchased from a hotel belonging to PW11 located near Kanjikode village at about 14 hours and a bottle was purchased from a stall near the Governor's seat at about 14.30 hours from PW10. It is further alleged that the appellant and Ajin went downside the dam and sat close to the dam wall. Thereafter, both of them had consumed toddy and food. It is further alleged that the appellant had enticed the boy to have unnatural sex and after consumption of toddy and **Crl.A.No.930 of 2012** ## **:-6-:** food, the appellant managed and subjected the boy to carnal intercourse against the order of nature. While so, the appellant caused grievous hurt on the body of the victim and thereby he became unconscious. Knowing or having reason to believe that an offence had been committed, with the intention of screening him from legal punishment, the appellant pushed him, who was in an unconscious state into the dam reservoir at about 16 hours and thereby caused the death of Ajin by drowning. It is further alleged that the appellant caused disappearance of evidence of the commission of the offence by burning the articles belonging to Ajin. 5. PW31 filed the final report before the Chief Judicial Magistrate Court, Ernakulam, where the case was taken on file as C.P.No.4/2010. After completing the usual formalities,the learned Magistrate committed the case to the Sessions Court, Ernakulam wherein it was numbered and made over to the Additional Sessions Court-III, Ernakulam for trial and disposal. 6. The trial court framed charges under Sections 325,328,363,367,377,302 and 201 of the IPC and the trial was conducted. 7. In the trial that followed, altogether the prosecution examined 31 witnesses as PWs.1 to 31, proved documents which **Crl.A.No.930 of 2012** ## **:-7-:** are marked as Exts.P1 to P29 and identified material objects which are marked as MOs.1 to 12 series. On 21.1.2001, PW31 was examined in chief. His cross-examination was adjourned to 24.1.2011 and then to 28.1.2011. In the mean while, PW13 filed an affidavit along with a petition before the trial court as Crl.M.P.No.310/ 2011 for seeking appropriate direction to further examine her to place the true facts on record. Simultaneously, the appellant, who was an under-trial prisoner moved Crl.M.P.No.316/2011 for recalling PW13 and to get the further evidence of PW13 recorded in court. In addition to the above, the appellant also filed Crl.M.P.No.384/2011 to recall PW29 to prove certain contradictions put to certain witnesses during crossexamination. PW13 had also moved writ petition W.P(C)No.2759/2011 seeking protection from harassment by CBI Officers. On 1.2.2016, this Court dismissed the above writ petition as infructuous. While the petition filed by the appellant and PW13 were pending consideration, the cross-examination of PW13 was completed and thereafter, the learned trial Judge disposed of the application filed by the appellant and PW13, by order dated 10.2.2011, declining to recall PW13 at that stage under Section 311 of the Cr.P.C. without prejudice to the rights available to the **Crl.A.No.930 of 2012** ## **:-8-:** accused under Section 233 of the Cr.P.C. 8. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. His defence was one of total denial. A detailed statement was also filed and along with it, all supporting documents and complaints made by the appellant before the learned Magistrate in that regard were produced. According to him, he had never seen the deceased in his life time. On 11.5.2006, he did not go either to the dam site or its premises as alleged by the prosecution. Before his arrest, the CBI Officials arrested PW4 Madhu from the dam site as accused and collected evidence. While so, PW4 admitted his guilt in the presence of PW13 Shanty and CW28 Tomy in front of the shop of PW13. However, under the influence of his uncle, who is a school manager, the CBI officials exonerated PW4 Madhu from the case. The CBI Officials implicated the appellant as an accused on the strength of a case against him for the offence punishable under Section 377 of IPC. In the said case, though he was convicted by the trial court, the Sessions Court,Palakkad in Crl.A.No. 201/2004 acquitted him for the offences alleged. On 10.2.2010, when he **Crl.A.No.930 of 2012** ## **:-9-:** was arrested, there was no injury on his body. Later, the CBI Officials took him to the police custody and tortured in between 10.2.2010 and 15.2.2010 and thereby he sustained injury on his head. The injury was shown to PW21, the learned Judicial First Class Magistrate, Ernakulam at the time of conducting identification parade on 27.2.2010. To substantiate the plea, the appellant had produced copy of the judgment in Crl.A.No.201/2004 of the Sessions Court, Palakkad, copy of the complaint given to the Chief Judicial Magistrate on 12.3.2010, the photographs of the injuries sustained on his head, copy of the complaint filed against PW31,CW1 and other Police Officers as Crl.M.P.No.2438/2010 before the Chief Judicial Magistrate Court, Ernakulam, copy of FIR in Crime No.974/2010 of the Central Police Station, Ernakulam registered on the basis of the said complaint and the report of the Assistant Police Commissioner, Ernakulam filed before the Chief Judicial Magistrate Court in the same complaint. On the side of the defence, four witnesses were examined as DWs.1 to 4 and marked as Exts.D1 to D21 series. 9. Within a few days after completion of Section 313 examination, the appellant was released on bail on 4.3.2011 by the trial Judge who recorded the evidence in this case. **Crl.A.No.930 of 2012** ## **:-10-:** 10. The learned Sessions Judge, who proceeded with the trial, did not deem it fit and proper for recording an acquittal under Section 232 of Cr.P.C. The appellant was therefore, called upon to enter on his defence and to adduce evidence which he might have in support thereof. The appellant filed application and schedule of witnesses for adducing defence evidence. The trial court allowed examination of PW12 and PW13 for further cross-examination. Pursuant to the summons issued as per the witness schedule, three witnesses were examined on 18.3.2011, 21.3.2011, and 23.3.2011 respectively. While so, the Inspector of Police,CBI,Cochin filed Crl.M.C.No. 942/2011 challenging the order of the trial court by which summons were ordered to the witnesses in the list furnished by the appellant. By order dated 28.6.2011, this Court disposed of Crl.M.C.No. 942/2011 holding that the acceptability of the evidence tendered by PW13 on her recall as requested by the defence should be decided by the trial court having regard to the scope and ambit of Section 233 of the Code vis-a-vis Section 311 of the Code and in accordance with the decisions in **State of M.P.** v. **Badri Yadav and another** [(2006)3 SCC Crl.337] and **Johnson** v. **State of Kerala** [1996(2) KLT 1027]. So far as further examination of PW12 ordered by the **Crl.A.No.930 of 2012** ## **:-11-:** learned Additional Sessions Judge, it was directed that it should be treated as further examination on recall under Section 311 of the Code and subject to the scope of recall under the said provision as stated in **Johnson's case** (supra). 11. Although PW12 approached the trial court with a prayer to recall him and to tender evidence, the application was heard along with the application filed by the appellant seeking the same relief. The trial court dismissed both the petitions on 31.8.2011. The challenge to the above order by the appellant before this Court and the Supreme Court was repelled. Later, PW10 approached the trial court by filing Crl.M.P.No.2618/2011 with a prayer to recall him and to allow him to tender evidence. The appellant also filed Crl.M.P.No. 2632/2011 to recall PW10, which was also dismissed by the trial court. The appellant also filed Crl.M.P.No.3515/2011 to reopen the defence evidence and to permit examination of three more additional witnesses to prove the defence case. After having heard both sides, the court below dismissed Crl.M.P.No.3515/2011 by its order dated 12.12.2011. The appellant challenged the above order by filing Crl.M.C.No.4495/2011 before this Court. By order dated 23.5.2012, this Court dismissed the petition as infructuous **Crl.A.No.930 of 2012** ## **:-12-:** recording the submission of the learned counsel on both sides that the petition had become infructuous as the case numbered as S.C.No.367/2010 of Additional Sessions Judge-III, Ernakulam had already been tried and disposed of. The appellant also filed Crl.M.P.No.3551/2011 on 13.12.2011 under Section 315 Cr.P.C. with a prayer to allow the appellant to examine himself as a defence witness. He had also filed another application seeking direction to subject him and the investigating officer to undergo Narco Analysis Test to place the actual truth before the court. The trial court disallowed both the petitions filed by the appellant and posted the case for final hearing and disposal. 12. On 16.1.2012, when the case came up for final judgment, the trial court passed an order by which it was decided to conduct a local inspection of the site by the court presumably on the basis of the request made by the appellant in that regard in Crl.M.P.No.872/2011. The inspection was conducted on 28.1.2012 and an inspection memorandum and sketch were prepared. The appellant filed objections to the inspection report. 13. The trial court, relying on the evidence of the prosecution witnesses, and PW22 the District Police Surgeon, District Hospital, Palakkad, who issued Ext.P18 postmortem **Crl.A.No.930 of 2012** ## **:-13-:** certificate concluded that the death of Ajin was homicidal in nature and accordingly, the appellant was convicted and sentenced under various provisions of the Indian Penal Code including Sections 377 and 302 of IPC as stated in paragraph 1 of this judgment. 14. The learned trial Judge mainly relied upon the following incriminating circumstances against the appellant which established his guilt. - 1)On 11.5.2006 without attending the summer vacation class at about 11 AM Ajin reached at Malampuzha dam, and did not return to home. - 2) On 11.5.2006 between 11.30 hours and 14.30 hours the accused was last seen in the company of deceased Ajin. - 3) On 11.5.2006 evening on seeing PW10 the accused turned back and proceeded towards the way he came. Thereafter the accused did not see in the premises. - 4) On 11.5.2006 at about 1.30 hours the accused came with the boy near to PW9 and purchased two litre toddy from him. - 5) The accused has the habit of sodomy. - 6) Deceased Ajin was subjected to unnatural offence before his death. - 7) The time of death of Ajin is after 2.30 PM on 11.5.2006. - 8) Ajin was intoxicated immediately before his death. 15. Heard Sri.B.Raman Pillai, the learned Senior Counsel appearing for the appellant and Sri.Sasthamangalam.S. Ajithkumar, learned Special Public Prosecutor for CBI. ## 16. Learned Senior counsel for the appellant **Crl.A.No.930 of 2012** ## **:-14-:** Sri.B.Raman Pillai contended that the appellant was implicated as an accused in the above case merely on the basis of conjectures and surmises and the prosecuting agency is guilty of deliberate fabrication of false evidence with the help of planted witnesses, who were threatened and compelled to perjure before the trial court. The learned Senior Counsel further submits that the theory that the appellant, being a person having homosexual tendency, is a cooked up story to suit the prosecution case. Elaborating his submissions, the learned Senior counsel submitted that PW22, the Doctor who conducted postmortem examination on the body of the deceased Ajin is in direct variance with the material aspects of the prosecution story. According to the learned Senior counsel, the document produced by the appellant and proved in evidence by the testimony of PW21 would show that the appellant was subjected to third degree torture after his arrest. The affidavit filed by the witnesses in the above case would show that they were coerced and threatened to tender false evidence and commit perjury before the court. The main complaint of the appellant is that as part of delaying tactics adopted by the prosecution, the further proceedings of the trial court has got adjourned on many occasions on the ground of pendency of Crl.M.C.942/2011 before **Crl.A.No.930 of 2012** ## **:-15-:** this Court with the mala fide intention to avoid the trial judge who had recorded the evidence and who had the benefit of seeing the demeanor of the witnesses from completing the trial and pronouncing the judgment in the case. It was submitted that though the Crl.M.C.No.942/2011 was disposed of, in the mean while the Presiding Officer, who had recorded the evidence, had been transferred and a new Presiding Officer had taken charge. The learned Senior Counsel submitted that the learned Sessions Judge, who had assumed office at the fag end of the case, awarded sentence of imprisonment for life both under Sections 302 and 377 of the IPC and for various terms of imprisonment for other offences. Strange as it may sound, it was held by the learned Sessions Judge that the sentence of imprisonment for life under Section 302 of IPC would mean that the accused shall not be released from prison till the rest of his natural life. Relying on the decision in **State of Kerala** v. **Unni** [2013 (1) KLT 695 (FB)], the learned senior counsel contended that the Sessions Courts do not have power to impose harsher variety of life sentences as awarded in **Swamy Shraddananda @ Murali Manohar Mishra** v. **State of Karnataka** [(2008) 13 SCC 767]. Thus, it was argued that the learned Sessions Judge, who pronounced the judgment, **Crl.A.No.930 of 2012** **:-16-:** discussed and decided evidence in this case with a preconceived notion to incarcerate the appellant in jail till the rest of his natural life. 17. Learned senior counsel for the appellant submitted that the last seen theory is not applicable in the instant case as there were serious contradictions as to the date and time in which Ajin allegedly found with the appellant. It was further submitted that deceased Ajin went to Malampuzha voluntarily and the allegation of kidnapping by the appellant is without any basis. It was further argued that to screen the admission of clear evidence regarding the lie of the place of occurrence, no proper sketch or plan was produced. However,the court below conducted a local inspection on 28.1.2012 in a very casual manner and prepared a sketch through the Village Officer diverting the basic case of the prosecution as seen in the final report. Learned Senior Counsel submitted that the investigation in the above case was carried out initially by three Senior Police Officers of the State including DW4 the Assistant Commissioner of Police, Palakkad and PW29 the Deputy Superintendent of Police, Palakkad. In the said investigation carried out by the local Police for three years, statements of PWs.10 and 13 are not even seen recorded though **Crl.A.No.930 of 2012** **:-17-:** the above witnesses are persons, who were very much available in the locality. The evidence tendered by PWs.5,6 and 7, according to the learned senior counsel, is all cooked up to suit the prosecution case and is not sufficient to enter a finding of guilt against the appellant. 18. Rebutting the submission of the learned Senior counsel for the appellant,the learned Special Public Prosecutor for the CBI Sri.Sasthamangalam.S. Ajithkumar contended that the appellant moved in the company of the deceased on the date of occurrence and when the prosecution had established that the deceased was last seen alive in the company of the appellant/accused, it was for the appellant to explain as to what happened to the deceased thereafter. In the absence of any probable explanation from the appellant, according to the learned Special Public Prosecutor, the court below rightly convicted the appellant based on the circumstantial evidence adduced and the impugned judgment warrants no interference in appeal. The learned Special Public Prosecutor further submitted that the local Police had not conducted any investigation in this case and the investigation was taken over by the CBI after a considerable long lapse of time. It was further submitted that the accused was arrested by PW31 **Crl.A.No.930 of 2012** **:-18-:** after recording the statement of all the witnesses and the allegation that the appellant was implicated as an accused in this case with the help of planted witnesses is incorrect. 19. Before dealing with the rival contentions of the parties, it is advantageous to have a glance of the various circumstances involved in the case. As Ajin did not return home until 12.5.2006 morning, as indicated earlier, PW1 informed her elder brother PW3 Sri.Ratheesh Kumar about the matter. Immediately, PW3 and his friend went to Malampuzha and came to know that a dead body was floating in the dam reservoir. On seeing the deadbody, PW3 identified the deadbody of Ajin and a case was registered in the Malampuzha Police Station under Section 174 of Cr.P.C. PW27 is the then SI of Malampuzha Police Station. He had conducted inquest on the body of Ajin and prepared Ext.P12 inquest report on 12.5.2006. PW14 had witnessed the inquest on the body of the boy and signed the inquest report as a witness. In Ext.P12 inquest report, in column Nos.7 and 8(a), PW27 had not noted any fatal injuries on the deceased. However, PW27 noted the state of corpse, its posture and exact state of the limbs,eyes,mouth etc. with fish bite particulars thereof on the body of the deceased and list of all property found on the corpse. Minute description of exact **Crl.A.No.930 of 2012** **:-19-:** spot where corpse was found in water and depth thereof is also found a place in column No.8(a). Column No.11 in Ext.P12 is apparent cause of death. PW27 noted that the victim died as a result of drowning. 20. PW22 the Doctor, who conducted the postmortem on the body of Ajin, opined that postmortem findings are consistent with death due to drowning, adding that there is evidence of unnatural sexual offence in the form of recent anal penetration on the body. PW22 further opined that the deceased had sustained injuries to head and neck prior to the death. According to PW22, the time of death could be more than 18 hrs. and less than 36 hrs., the body was kept in freezer. Based on Ext.P18 postmortem certificate and Ext.P19 laboratory finding, PW22 further opined that taking into consideration of the long delay of three years in conducting chemical analysis of blood and viscera, a negative report of chemical analysis of blood and viscera does not rule out the possibility of alcohol consumption prior to the death of the victim. Ext.P18 postmortem certificate indicates that the deadbody was kept in freezer at 5 pm on 12.5.2006. In Ext.P18, PW22 noted the following ante mortem injuries which are very relevant for the disposal of the case. **Crl.A.No.930 of 2012** **:-20-:** ## “ **B.Injuries (Ante-mortem & fresh)** - 1) Contused abrasion 8x6cm on forehead in midline,2cm above root of nose. - 2) Contusion 0.5x0.3x0.3cm on right lower eyelid,0.4cm below lid margin and 3 cm outer to midline. - 3) Contused abrasion 3x2cm on right side and lower end of bridge of nose. - 4) Contused abrasion 1.8x1 cm on left half of lower lip, just outer to midline. - 5) Contusion 1.5x1x0.3cm on inner aspect of upper lip in midline. - 6) Contusion 1.5x1x0.4cm on inner aspect of right half of lower lip, 1cm outer to midline with a contused abrasion 0.8x0.8cm over it. - 7)Contusion 1.5x1x0.3cm on inner aspect of left cheek. - 8)Contused abrasion 1.2x1cm on right cheek,2cm outer to right angle of mouth. - 9) Contused abrasion 1x0.8cm on right side of face, just below outer end of eyebrow. - 10)Contused abrasion 1x0.6cm on right side of face, 1cm in front of tragus of ear. - 11) Contused abrasion 1.2x0.8cm on left half of front of neck,2cm below jaw margin and 2.5cm outer to midline. - 12) Contused abrasion 1.6x1.1cm on left half of front of neck,3.5cm below jaw margin and 3cm outer to midline. - 13) Contused abrasion 0.6x0.4cm on right half of front of neck, 3cm above collar bone and 1cm outer to midline. - 14) Contused abrasion 0.5x0.4cm on right half of front of neck, 2cm above collar bone and 7cm outer to midline. Flap dissection of neck in a bloodless field under modified method showed patchy areas of blood infiltrations in the subcutaneous tissues underneath the external injuries. **Crl.A.No.930 of 2012** **:-21-:** - 15)Contused abrasion 3x2 cm on back & inner aspect of right forearm 9cm above wrist. - 16)Contused abrasion 0.8x0.4cm on back of right little finger, 2cm below root of finger. - 17)Contused abrasion 3x2cm on back and outer aspects of left forearm 3cm below elbow. - 18)Contused abrasion 0.5x0.4 cm on back of left hand, between root of ring and index fingers. - 19)Contused abrasion 0.5x0.5cm on back of left hand at root of index finger. - 20)Three contused abrasions of size 0.4x0.3 cm,0.5x0.2cm and 0.3x0.2cm, placed over an area of 2.4x1.2cm on front and right side of bulb and corona of penis with congestion of mucosa of bulb, corona and inner aspect of foreskin around. - 21)Contusion 0.6x0.4x0.2cm on the inner aspect of anal canal at 7 O' clock position (body in prone position), just inner to the mucocutaneous junction. Contused abrasion 0.4x0.3cm on the inner aspect of anal canal at 4 O' clock position,1.6cm inner to mucocutaneous junction. Lacerated wound 0.4x0.3cm at the mucocutaneous junction of anal orifice at 4 O' clock position. Another superficial lacerated wound 0.3x0.2cm at the mucocutaneous junction of anal orifice at 9 O' clock position. Mucosa of lower half of anal canal was congested and smeared with blood. The anal orifice showed evidence of recent dilatation and measured 2.8cm on lateral traction. Internal injuries noted in Ext.P18 are:- - 1) Scalp contusion 12x6 cm in the frontal region underneath external injury No.1/ Thin subdural and subarachnoid bleeding was present over brain. Brain was congested, softened and edematous.” With reference to injury No.21, PW22 clarified that the internal injury is self explanatory to show that there was every possibility of the victim becoming unconscious immediately after sustaining the **Crl.A.No.930 of 2012** ## **:-22-:** injuries. In the above background of the facts, the court below was of the view that the offender knowing fully well that the act is so imminent to be dangerous and in all probability, caused death of Ajin might have pushed the unconscious body of Ajin into the dam reservoir and thus murdered Ajin. On going through the medical evidence and other circumstances involved in the case, we are of the view that the death of Ajin is homicidal in nature and the findings arrived at by the court below cannot be faulted. 21. Case of the prosecution is based on circumstantial evidence.In Criminal investigation, the investigating officer is obliged to adopt one or more methods of mechanism to identify the accused. In the case at hand, PW31 adduced evidence to identify the accused mainly based on the oral evidence of PWs.9,10,12 and 13 coupled with the evidence tendered by PWs.5,6 and 7. 22. PWs.5,6 and 7 were examined to show that the accused had previous history of homosexual tendency. PWs.5 and 6 adduced evidence to show that the appellant made attempts to exhibit homosexual tendencies in front of them and in fact, they were victims of the accused. PW6 stated that once the accused attempted to have anal intercourse with him. PW7 adduced **Crl.A.No.930 of 2012** ## **:-23-:** evidence to show that way back in October, 2002, he filed a complaint before the Walayar Police station against the appellant/accused alleging commission of offences punishable under Sections 341,323,511 read with 377 of IPC. The case was registered as Crime No.241/2002 of the Walayar Police Station. PW7 was examined as witness in C.C.No.47/2003 before the Judicial First Class Magistrate Court-I, Palakkad. After taking evidence in the case, the accused was convicted and sentenced for the offence under Section 377 of IPC. On going through the oral evidence of PWs.5 to 7, the court below is of the view that the prosecution has succeeded in proving that the accused had the history of homosexual tendencies prior to the occurrence in this case. 23. According to the prosecution, the appellant/accused was a man of bad character. Evidence of PWs.5 to 7 would show that the accused has the prior history of homosexual tendencies. He was a convict for the offence under Section 377 IPC in C.C.No.47/2003 of the Judicial First Class Magistrate-I, Palakkad. In this connection, it is useful to refer Section 54 of the Evidence Act. Section 54 of the Evidence Act reads as follows:- **Crl.A.No.930 of 2012** ## **:-24-:** ## “ **54.Previous bad character not relevant, except in reply** In Criminal proceedings, the fact that the accused person has a bad character, is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant. Explanation I: This section does not apply to cases in such the bad character of any person is itself a fact in issue. Explanation 2: A previous conviction is relevant as evidence of bad character.” 24. In terms of criminal jurisprudence valid in India, unless otherwise provided for in any statute, every person is presumed to be innocent until he is convicted. Section 54 of the Evidence Act gives protection to the accused of being put in the category of a person having bad character except in the circumstances thereunder. Along with the written statement filed by the appellant, the appellant had produced a copy of the judgment in Crl.A.No.201/2004 of the Sessions court, Palakkad to show that the appellant-accused was acquitted in C.C.47/2003 of the Judicial First Class Magistrate Court-I, Palakkad for the offence under Section 377 read with 511 IPC. It is true that the offence under Section 377 read with 511 IPC was not proved against the accused beyond reasonable doubt. It could not be assumed that the accused was acquitted honourably. However, it is incorrect to brand the **Crl.A.No.930 of 2012** ## **:-25-:** accused as a homosexual based on the finding of the trial court consequent to his acquittal in appeal. In view of the above, we are of the view that the character of the appellant is of no relevance to adjudicate the points involved in the case. We are of the further view that the evidence tendered by PWs.5 to 7, which is not a fact in issue, in the above case clearly demonstrate that the court below travelled beyond the scope of the fact in issue and appreciated the evidence erroneously. In the absence of reliable materials to prove that the accused committed carnal intercourse against the order of nature with the deceased Ajin, it is incorrect on the part of the court below in arriving at a conclusion that the appellant/accused was the type likely to commit homosexual tendencies. 25. Yet another circumstance relied on by the prosecution is the evidence tendered by PW23, one of the classmates of deceased Ajin. PW23 stated that Ajin was a male with female gestures. This is further corroborated by the evidence of PW13. PW13 stated that when the boy came to her shop at Malampuzha to purchase fruity, she specifically noted the boy as he was biting his lips which her son used to do. According to PW23, Ajin was known as 'chanthupottu' among his friends. This is **Crl.A.No.930 of 2012** **:-26-:** corroborated by the oral evidence of PW1 as well. On going through the evidence of PWs.1, 13 and 23,there is nothing to indicate that the sexual orientation of the boy was that of a female and the boy was either a trans-gender or a bisexual. PW1 the mother of the boy and PW2 his sister adduced evidence to show that when Ajin left home on 11.5.2006, he was wearing school uniform- navy blue pants, light blue check shirt and belt. They also stated that he was wearing a red colour T-shirt inside the school uniform. They further stated that a white polythene bag containing his note book and pen was also carried by him. PWs.9 and 10 stated that when they saw the boy, he had a polythene bag in his hand. MO8 series of photographs of deceased Ajin would show that the boy had developed secondary sexual characters and in fact, no evidence was adduced by the prosecution to show that the boy was a trans-gender or bisexual. PW24 the Vice Principal of Bapuji Senior Higher Secondary School during the year 2006 was examined before court to prove that Ajin did not attend the class on 10.5.2006,11.5.2006,12.5.2006 respectively and thereafter. Ext.P20, true copy of the attendance particulars was proved through him. No attempt was made by the prosecution to elicit evidence from PW24 that the deceased Ajin had the habit of **Crl.A.No.930 of 2012** **:-27-:** homosexual tendencies. In a criminal case, when a fact is alleged by the prosecution, it is the duty of the prosecution to prove the same beyond reasonable doubt. 26. To prove the identity of the accused, the prosecution mainly relied on the oral evidence of PWs.9,10, 12 and 13. PW9 is a toddy tapper, in respect of an area of 2 acres of coconut garden owned and possessed by one Arumugham and that which is three kms. away from the Malampuzha dam. In 2006, he was residing in a shed constructed in the said property. According to him, on the date of the Assembly Elections in 2006, the accused came to see him on a motorcycle around 1.30 noon with a boy as pillion rider to purchase toddy from him. Being an Election day, it was declared as a dry day for the shop. The accused purchased two litres of toddy and paid Rs.40/- as consideration and left the place on the motor cycle with the boy. PW9 stated that the boy who came with the accused was wearing pants and red coloured T-shirt and he had a plastic cover in his hand. 27. PW10 is a vegetable vendor at Malampuzha. According to him, he was conducting a cool drinks' shop near the **Crl.A.No.930 of 2012** **:-28-:** Governor's seat at Malampuzha during the year 2006-2007. On the Election day, according to him, the accused and the boy came in his shop to purchase mineral water between 2-2.30 pm. The boy was wearing a T-shirt and blue pants. On the very next day, he found the boy floating in the Malampuzha dam. 28. PW12 has been doing ice cream business at Malampuzha for the last 10 to 20 years. According to him, On the date of the election in 2006 between 11.30 and 12 hours, he saw a boy walking on the road on the top of the dam alone, but when the boy reached near the second electric post, he found another person with whom the boy began chatting with him. It was approximately 70 feet away from the place where he stood. While so, the boy was wearing a T-shirt. He identified the accused as the person, who was found going with the boy on that day. 29. PW13's husband Tomy @ P.S.Thomas has been conducting a cool drinks shop in the Malampuzha park. On the date of election in 2006, at about 12 hours, a boy came to the shop getting down the steps of the dam and asked for a fruity juice. PW13, who was present in the shop, gave 'Maa' juice and took Rs.10/- from the boy and while so, according to PW13, the **Crl.A.No.930 of 2012** **:-29-:** accused was found standing nearby with a pickup bag in his hand. 30. PWs.9,10 and 13 gave statements under Section 164 Cr.P.C. before PW21, the learned Judicial First Class Magistrate-I, Ernakulam by Exts.P6,P7,P10 and P11 respectively. They had no previous acquaintance with the accused. However, they identified the accused before the court. On the request of the investigating officer as authorised by the learned Chief Judicial Magistrate, PW21 conducted Test Identification Parade at Sub Jail, Ernakulam in connection with this case. PW12 identified the accused before him as evidenced by Ext.P9 proceedings. PW12 confirmed the very same identification in the trial court as well. 31. PW15, the Forest Guard attached to the Forest Department stated before the trial court that the accused was one of the temporary watchers employed to protect the Malampuzha Pannimada Medicinal Plantations Project under the Forest Department in Palakkad District. According to him, a temporary watcher has no fixed working time. Ext.P4 Muster Roll and Ext.P13 weekly diary prepared by him would show that the accused was working as temporary watcher during the month May, 2006. In view of the fact that the accused had been working **Crl.A.No.930 of 2012** **:-30-:** as a temporary watcher in the nearby place, there is logic in believing that PWs.9,10 and 13 had an opportunity to see the accused earlier. The very same logic is not applicable so far as the boy, who was found dead is concerned. The boy was a total stranger to them. They had identified the boy on the strength of MO8(a) photograph. MO8(a) photograph was shown to PWs.9,10,12 and 13 during investigation and thereby established the identity of the deceased. Of the above witnesses, PW12 alone confirmed the identity of the accused during the Test Identification Parade. On cross-examination of PW12, it was brought out that the accused was standing in the middle of the step far away from the shoproom of PW12. It is a fact that Malampuzha dam is a tourist destination and the largest reservoir in Kerala. The dam has many tourist attractions nearby like the rock garden, rockway, amusement park, and visitors often enjoy boating here as well. In a tourist destination like Malampuzha, it is very difficult to identify one of the tourists by the vendors conducting business in the premises. Hence, the identification alleged to have been made by PWs.9,10,12 and 13 are not probable. Admittedly, the boy was a total stranger to them. Further, Pws.9,10,12 and 13 are persons, who were very much **Crl.A.No.930 of 2012** **:-31-:** available in the locality when the case was registered in May,2006. PW28 the Assistant Sub Inspector of Police, Malampuzha Police Station recorded the statement of PWs.1,2,4 and 12 in Crime No.68/2006 of Malampuzha Police station from 13.5.2006 to 25.6.2006. PW29 the Deputy Superintendent of Police, Palakkad had conducted investigation of the said crime from 13.10.2006 till 10.4.2007. It is a fact that in the said investigation carried out by the local police for three years, statements of PWs.9,10 and 13 had not even been recorded. The statement of PW12 recorded by the local Police during investigation and proved in evidence would show that the information available with him would rule out any role of the appellant in this case. 32.In this connection, it is relevant to note the evidence of PW4. He was working as a Peon at Mankara U.P.School in Palakkad District. He was initially suspected by the local Police in connection with the death of Ajin. It is a fact that the investigation conducted by the local Police did not even remotely suggest any role of the appellant in the case. PW1 and PW4 had been maintaining an extra-marital relationship while the marriage relationship between PW1 and her husband was in **Crl.A.No.930 of 2012** **:-32-:** force. PW1 and PW4 admitted such a relationship between them. According to PW4, he did not go to the funeral of Ajin as his relationship with PW1 was known to the public at large. In view of the evidence let in by PWs.1 and 4, it is clear that PW1 was living in adultery during the subsistence of a valid marriage and Ajin was born and brought up in the very same house where the mother was living in adultery. 33. One of the allegations levelled against the accused is that the accused enticed Ajin under 14 years of age out of the keeping of the lawful guardian of such minor, without the consent of PW1 and committed unnatural sex with him. However, the evidence adduced in this case would show that Ajin left for Malampuzha voluntarily on the date of occurrence and while at Malampuzha, he had contacted his mother over phone and told that he was at Malampuzha and would return home in the evening. When PW1 received such an information from Ajin, who was admittedly a minor then, PW1 had no case that Ajin was enticed by someone and took him to Malampuzha from her guardianship. This is an indication that the victim went to Malampuzha on his own freewill without any compulsion whatsoever from anyone. PW24 adduced evidence to show that **Crl.A.No.930 of 2012** **:-33-:** Ajin did not attend summer vacation classes on 10.5.2006,11.5.2006 and 12.5.2006 respectively. Thus, the only inference which could be drawn is that Ajin used to skip from the classes without permission of PW1 and the school authorities. He was absent from the school on 10.5.2006 as well. When Ajin contacted PW1 from Malampuzha on 11.5.2006, she did not scold him for going to Malampuzha without her permission. It is further clear from the evidence of PW2 that she wanted to accompany Ajin on 10.5.2006 when Ajin expressed his desire to go to Malampuzha on that day. However, he did not go as planned, presumably for the reason that Ajin did not want to take his sister along with him. In the light of the above circumstances, it is manifestly clear that the victim had not been solicited and persuaded by the accused to leave the parents of the victim for being taken to Malampuzha. Willingness on the part of the victim to keep company with the accused even if the evidence of PWs.9,10,12 and 13 is taken as true could be termed as voluntary and no offence of kidnapping is made out. 34.As per the prosecution case, the deadbody of Ajin was found floating in the dam reservoir. Ext.P26 plan is allegedly prepared by PW16. He was working as Lower Division Clerk at **Crl.A.No.930 of 2012** ## **:-34-:** the Office of the Executive Engineer, Irrigation Department, Malampuzha. According to PW31, PW16 prepared a sketch specifying Malampuzha reservoir and handed over to PW31 in connection with this case. When PW16 was examined before the court below, he stated that he did not prepare any plan or sketch specifying Malampuzha dam and handed over the same to the CBI. Admittedly, no site plan was prepared by the local Police or the CBI in connection with this case. When the dead body of Ajin was found at the curve protruding towards inside of the dam and no one could see that particular area while standing on the top of the dam,it is absolutely essential on the part of the investigating officer to prepare a site plan specifying the place of occurrence. In the case on hand, no scene mahazar was prepared nor did the investigating officer prepare a site plan to prove the place of occurrence. The prosecution has no case that the occurrence in this case took place inside the reservoir. It presupposes that the occurrence took place somewhere else. It is also difficult to believe that the accused committed unnatural sex with the victim inside the dam reservoir. 35.Coming to the evidence let in by PW9, we are of the view that the evidence adduced before the trial court is not **Crl.A.No.930 of 2012** ## **:-35-:** sufficient to indicate that the victim had consumed toddy prior to the occurrence as alleged by the prosecution. Ext.P19 laboratory finding would indicate negative report of alcohol consumption by the deceased prior to his death. Hence, it is difficult for us to believe that both the deceased and the accused had consumed toddy and food and thereafter, the accused subjected the boy to carnal intercourse against the order of nature. 36. PW14, a traditional fisherman at Malampuzha dam, was present at the time of preparing Ext.P12 inquest report by the local police. He saw the deadbody of Ajin. According to him, the dam reservoir is having an area of 36 Sq.kms. On the date of occurrence, he did not go for fishing as he was otherwise engaged in connection with the election. On cross-examination, he stated that one Sunil, who was working as a Constable at Malampuzha Police Station, saw the deadbody in the reservoir initially. According to him, Sunil is still working at Malampuzha Police Station. On seeing the deadbody, Sunil sounded the whistle to alert the public in and around the area. Consequently, they all rushed to the scene around 12 noon. Curiously enough, Sunil was not examined as a witness for the prosecution. No reason was offered as to why Sunil was not questioned by the **Crl.A.No.930 of 2012** ## **:-36-:** Investigating Officer. 37. PW12 Tajudeen identified the accused before PW21, who conducted the Test Identification Parade. On crossexamination, PW21 admitted that the accused made a complaint against the investigating officer regarding an injury on his head. PW21 saw the injury. However, PW21 had no occasion to go into the details of the injury. According to him, the injury was not a fresh one warranting immediate medical attention. Hence, PW21 advised the accused to make a complaint before the learned Chief Judicial Magistrate for appropriate necessary action. It is true that an oral complaint made before the learned Magistrate is a complaint as defined under Section 2(d) of the Cr.P.C. However, in the case on hand, the learned Magistrate had chosen to advise the complainant to move before the court where the case was pending for appropriate action. As directed by the learned Magistrate, the accused filed Crl.MP 2438/2010 before the Chief Judicial Magistrate Court, Ernakulam. Though the Police registered a crime and investigated the matter, a final refer report was filed before the court. The accused had not filed any protest complaint before the court challenging the final report. Thus, the final report was accepted by the court and had become final. **Crl.A.No.930 of 2012** **:-37-:** Under the circumstances,the contention advanced by the learned counsel for the appellant, that the appellant was ill-treated by PW31 has no validity in the eye of law. However, it is a fact that Test Identification Parade in this case was conducted long after the date of arrest. It is an admitted case that the accused was arrested in this case on 10.2.2010. Test Identification Parade was conducted on 22.10.2010. The delay in conducting Test Identification Parade was not explained. On going through the evidence of PW12, it is brought out that he had seen the side portion of the accused nearly 70 feet away. Test Identification of the accused was made after four years from the date of occurrence. Though PW12 had an occasion to see a glimpse of the accused on a tourist destination, the fact that he still kept the image of the accused in his memory is something which we find difficult to believe. 38. The deadbody of deceased Ajin was found fully dressed floating on the dam reservoir. MO1 T-shirt,MO2 pants, MO3 uniform belt, MO4 purse ,MO5 chappal and MO6 photo of God Hanuman kept inside the bus were present on the body of the deceased. PW1 stated that when he left at 9.30 hours in the morning he was wearing a light blue check shirt and inside the **Crl.A.No.930 of 2012** **:-38-:** shirt a red T-shirt was also worn. This is a circumstance to indicate that Ajin had an idea of going to Malampuzha on that day. After reaching at Malampuzha, he had removed his school uniform shirt and moved along with others. When the deadbody was found fully dressed on the dam reservoir, it is difficult to believe that the occurrence took place near to the dam reservoir where public had access. The only logical inference which could be drawn is that the occurrence took place somewhere else and thereafter, the unconscious body was fully dressed up and thrown into the dam reservoir resulting the death of the deceased by drowning. 39. In this case, place of occurrence is identified on the basis of MO8 series photographs. The prosecution had not stated where exactly the occurrence took place. The place of occurrence was not identified. The spot inspection conducted by the trial judge is not a substitute to locate the place of occurrence. The prosecution had no case that the occurrence took place inside the dam reservoir. Going by Ext.P18 postmortem certificate, it is clear that the deceased had sustained several ante mortem injuries. The deceased might have sustained injuries at the place of occurrence. Ext.P18 postmortem **Crl.A.No.930 of 2012** **:-39-:** certificate does not show that the deceased Ajin sustained injuries either on the elbow or knee. Going by the medical records, it is very clear that the deceased was not prone to carnal intercourse against the order of nature earlier. Logically, force might have been applied against the victim to satisfy the lust of the assailant. Ordinary human probability rules out the possibility of doing carnal intercourse against the order of nature with a boy of 14 years old in a public place. These are all indications to believe that the occurrence did not take place in the dam reservoir or near to the reservoir as alleged by the prosecution. Improbability of the place of occurrence is writ at large. Further, no explanation was offered by the prosecution as to how the injuries were sustained to the deceased and the place where the injuries were sustained. 40. PW22 testified that the deadbody was kept in the freezer at 5 pm on 12.5.2006. Postmortem examination was conducted on 14.5.2006. PW22 testified that the approximate time since death could be more than 18 hours and less than 36 hours, the body was kept in the freezer. In view of the above circumstances, it may not be possible to assume that the deceased was last seen with the company of the accused on **Crl.A.No.930 of 2012** **:-40-:** 11.5.2006 as alleged by the prosecution. The possibility of the deceased moving with others in accordance with the time schedule as deposed by PW22 could not be ruled out even if the deceased was found along with the company of the accused on 11.5.2006 and is taken as correct as stated by PWs.9,10, 12 and 13. 41. On going through the evidence let in, it is clear that there is no direct evidence to connect the accused with the crime. In a case based on circumstantial evidence, it is settled principle of law that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. More so, all the circumstances should be complete, forming a chain and there should not be a vacuum or gap left in the chain of evidence. Further, the proved circumstances must be consistent with his evidence. 42. It has been consistently laid down by the Supreme Court that whereas cases rest squarely on circumstantial evidence, the inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with the innocence of the accused. **Crl.A.No.930 of 2012** ## **:-41-:** 43. It is not in dispute that the basis of conviction is solely on the circumstances relied on by the prosecution. In **Sharad Birdhi Chand Sarda** v. **State of Maharashtra** [(1984) 4 SCC 116] a bench of three-Judge of the Supreme Court on the basis of circumstantial evidence laid down the following conditions which must be fulfilled before a case against an accused can be said to be fully established:- “ _1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]_ _2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; [163G]_ _3. The circumstances should be of a conclusive nature and tendency;[163G]_ _4. They should exclude every possible hypothesis except the one to be proved; and [163H]_ _5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. [164B]”_ . These five golden principles followed in various decisions of the Supreme Court constitute the panchasheel of the proof of a case **Crl.A.No.930 of 2012** **:-42-:** based on circumstantial evidence. Needless to say even in the absence of eye witnesses, if various circumstances relied on by the prosecution relating to the guilt of the accused is fully established beyond reasonable doubt, the court is at liberty to award conviction based on circumstantial evidence. 44. The principle of circumstantial evidence has been reiterated by the Apex Court in a plethora of cases. (See **Bodhiraj @ Bodha and Others** v. **State of Jammu and Kashmir** [(2002)8 SCC 45], **C.Chenga Reddy and others** v. **State of A.P.** (1996)10 SCC 193, **Padala Veera Reddy** v. **State of A.P. and others** [AIR 1990 SC 79], **Hukam Singh** v. **State of Rajasthan** [(1977)2 SCC 99], **Eradu and others** v. **State of Hyderabad** [AIR 1956 SC 316], **Earabhadrappa @ Krishnappa** v. **State of Karnataka** [(1983)2 SCC 330], **State of U.P.** v. **Sukhbasi and others** [1985 (Supp)SCC 79], **Balwinder Singh** **@ Dalbir Singh** v. **State of Punjab** [(1987) 1 SCC 1], **Trimukh Maroti Kirkan** v. **State of Maharashtra** [(2006) 10 SCC 681] and **Sampath Kumar** v. **Inspector of Police, Krishnagiri** [(2012)4 SCC 124] and a number of other decisions. 45. Last seen theory is an important piece of evidence **Crl.A.No.930 of 2012** **:-43-:** in the chain of circumstances that would point towards the guilt of the accused. Last seen theory is generally applied taking into consideration of the entire facts and circumstances that when any fact is especially within the knowledge of a person, the burden of proving the fact is upon him. Consequently, if a person has last seen with the deceased, he is obliged to offer an explanation as to why and when he parted with the company. If he fails to offer an explanation on the basis of the facts, which in his special knowledge, he fails to discharge the burden casts upon under Section 106 of the Evidence Act. Section 106 does not shift the burden of proof in a criminal trial. The burden lies with the prosecution. 46.In this case, the prosecution has mainly relied upon the evidence of PWs.9,10,12 and 13 to prove that the accused and the victim were last seen together. No scientific evidence was adduced by the prosecution to prove that the accused had committed the crime. The deadbody was not recovered at the instance of the accused. The Police had not recovered the polythene bag of the deceased from the place where the deadbody was found. PW31 had conducted a search in the house of the accused on 10.2.2010 and seized MO7,MO10 and **Crl.A.No.930 of 2012** **:-44-:** MO11 suspecting that they were connected with the crime. When PW1 was cross-examined, she identified the MO7 polythene bag carried by Ajin when she left the home on 11.5.2006. PW2 the sister of the deceased stated that MO7 was not the one carried by Ajin on 11.5.2006 when he left the house. MOs.10 and 11 are not connected with the crime. Further, MO7 was not recovered in accordance with Section 27 of the Evidence Act. The sole evidence available is the last seen theory advanced by the prosecution. 47. The principles of last seen theory is settled by the Apex Court in various decisions.In **Arjun Marik and Ors.** v. **State of Bihar** [1994 Supp (2) SCC 372, it has been held as under:- “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” In **Kanhaiya Lal** v. **State of Rajasthan** [(2014)4 SCC 715], the Court has reiterated that the last seen together does not by itself lead to the inference that it was the Accused who committed the **Crl.A.No.930 of 2012** ## **:-45-:** crime. It is held thus: “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant,in our considered opinion, by itself cannot lead to proof of guilt against the appellant.” ## In **Digamber Vaishnav and another** v. **State of Chhattisgarh** ## [ (2019) 4 SCC 522 ],it has been held as under:- “40. The prosecution has relied upon the evidence of PW8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of deadbody. ## 48. In **Satpal** v. **State of Haryana** , [(2018)6 SCC 610], ## in paragraph 6, the Supreme Court held as follows:- “6. _We have considered the respective submissions and the evidence on record. There is no eye witness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence_ **Crl.A.No.930 of 2012** **:-46-:** _and plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.”_ 49. On a consideration of the entire facts and circumstances relating to the crime, with reference to Ext.P18 postmortem certificate, the place of occurrence, the nature of injuries sustained by the deceased all over the body, the tourist destination where the accused and deceased were last seen together and the time when they were last seen together as deposed by PWs.9,10,12 and 13, we are of the view that the place of occurrence and the surrounding circumstances in which the boy was born and brought up, would unhesitatingly create **Crl.A.No.930 of 2012** **:-47-:** suspicion in our mind. The theory of last seen together may not alone be sufficient to sustain a conviction for the offence punishable under Section 302 of IPC. When PW31 was examined before court, he stated that the accused had no intention to murder the victim and his intention was to commit anal intercourse with the victim and while so, the victim became unconscious. There is no positive evidence to show that the accused committed an offence under Section 377 IPC nor did the accused cause disappearance of evidence of the offences or giving false information to screen the offender. The place where the alleged occurrence took place was not proved beyond reasonable doubt. In the absence of reliable evidence, it is not possible to enter a finding that the accused assaulted the boy and committed unnatural sex with the boy on the strength of character evidence let in by PWs.5 to 7. In our opinion, the judgment and order of conviction passed by the trial court was not based upon proper appreciation of evidence and circumstances from which the conclusion of the guilt is to be drawn based on circumstantial evidence. 50. On going through the evidence in this case, we have noticed several inconsistencies in the evidence let in by the **Crl.A.No.930 of 2012** ## **:-48-:** prosecution apart from the fact that the chain of circumstances is broken. In such circumstances, it is difficult to draw an inference that the appellant had committed the crime. The standard of proof required in a criminal case is proof beyond reasonable doubt. Law is well settled that howsoever strong the suspicion may be, it cannot take the place of proof. Always a duty is cast upon the court to ensure that mere suspicion shall not substitute legal proof as contemplated under law. In this case at hand, the trial court was carried away by the fact that PW31 had succeeded in unearthing the crime despite the lapse of nearly four years from the date of occurrence. We are of the view that it is the duty of the trial court to ensure that conjectures and surmises do not take the place of legal proof. Instead the trial court must satisfy that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. We are conscious of the fact that a grave crime has been committed in this case. Nevertheless, when the offence is not proved beyond reasonable doubt, we have no other option, but to give the benefit of reasonable doubt to the accused. **Crl.A.No.930 of 2012** **:-49-:** 51. On going through the evidence on record, we find that some of the prosecution witnesses including PW13 made an attempt to retract from the evidence let in before the court below. As rightly argued by the learned Special Public Prosecutor for the CBI, once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself from the testimony given in court on oath. At the time of recall and further examination as defence witness, PW13 had retracted from her earlier version and stated before court that her earlier version is absolutely false and she was compelled to give such a statement as she was threatened by the CBI Officers. We are of the view that PWs.12 and 13, who were witnesses for the prosecution could not be allowed to perjure themselves by resigning from the testimonies given in court on oath. The court below correctly followed the principles in Badari Yadav's case (supra) and Johnson's case (supra) and held that the evidence given by PW13 on recall as defence witness is not acceptable. We are constrained to acquit the accused in this case for want of legal proof. PW31, who had conducted investigation in this case, pursuant to the direction issued by this Court could not be faulted for collecting evidence to the extent possible though the evidence collected after the lapse **Crl.A.No.930 of 2012** **:-50-:** of considerable long period is not sufficient to prove the offence against the accused beyond reasonable doubt. In conclusion, the conviction and sentence of the appellant in S.C.No.367/2010 on the file of the IIIrd Additional Sessions Court (Special Court for CBI Cases), Ernakulam imposed by judgment dated 30.4.2012 are set aside and he shall be set at liberty forthwith, if not required in connection with any other case. Accordingly, the appeal is allowed. Sd/- **A.HARIPRASAD, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/