Criminal Appeal (V) No.586/2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** ## **CRA(V).No.586 OF 2015** **AGAINST THE JUDGMENT IN SC 1209/2011 DATED 30-052014 OF ADDITIONAL SESSIONS COURT-II,KOLLAM** **AGAINST THE ORDER IN CP 51/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PUNALUR** **CRIME NO.932/2010 OF Kulathupuzha Police Station , Kollam** ## **APPELLANTS/LEGAL HEIRS OF THE VICTIM:** - **1 NUSAIBA BEEVI, D/O HOWLATH BEEVI, AGED 50 YEARS, ASSINA COTTAGE, ARIPPA,CHOZHIYAKKODU, PUNALUR TALUK, KOLLAM DISTRICT.** - **2 HASEENA, D/O.HOWLATH BEEVI AGED 42 YEARS, H.S.COTTAGE, ESM COLONY,KULATHUPUZHA VILLAGE.** **BY ADVS. SRI.SIJU KAMALASANAN SRI.S.ABHILASH SMT.BINDU GEORGE** ## **RESPONDENT/STATE:** **1 STATE OF KERALA REPRESENTED THE CIRCLE INSPECTOR OF POLICE, KULATHUPUZHA POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** Crl.Appeal (V)No.586/2015 ..2.. - **2 ANOOPKHAN S/O.AYOOBKHAN, MULAMPALLIL HOUSE, NETTAYAM, KUTTUPUTHUSSERI MURI, PALLICKAL VILLAGE - 695 604.** - **3 JAISON S/O.JAMES, PARAVILA VEEDU, NETHAJI, URUKUNNU MURI, THENMALA VILLAGE - 691 308.** - **4 SUJITH S/O.SUDARSANAN PARAVILA PUTHEN VEEDU, NETHAJI, URUKUNNU MURI, THENMALA VILLAGE - 691 308.** **R1-2 BY ADV. SRI.S.M.ALTHAF R1 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN R1 BY ADV. SRI.S.RAJEEV R3 BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR R3 BY ADV. SRI.V.S.THOSHIN R4 BY ADV. RESMI NANDANAN (STATE BRIEF)** **SR.PUBLIC PROSECUTOR - SRI.P.S.U.NAZAR** **THIS CRL.A BY DE FACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 10-01-2020, THE COURT ON 21.01.2020 DELIVERED THE FOLLOWING:** Crl.Appeal (V)No.586/2015 ..3.. ## **JUDGMENT** ## **N.ANIL KUMAR, J.** This appeal is preferred by the appellants who are alleged to be the legal heirs of the victim, aggrieved by the order of acquittal passed by the Additional Sessions Court-II, Kollam dated 30.5.2014 invoking the proviso to Section 372 of the Code of Criminal Procedure, 1973 introduced in the Code as per the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009). 2. In the incident that occurred on 27.11.2010 at about 11.30 pm, one Shijad aged 27 years, who was working as a U.D.Clerk at Thenmala Grama Panchayat office, was found dead by PW1 who is his cousin brother and others near Pallamvetti which is a place situated in between Thenmala and Kulathupuzha in Kollam District. The dead body was found about 10 feet below the road level and it was lying in prone position in a wooden log which was placed across a culvert. The body was full of blood and his belongings were scattered in the nearby places. There were several injuries including Crl.Appeal (V)No.586/2015 ..4.. incised wounds on his body. He was used to go to his house at ESM Colony from his office at Thenmala through the aforesaid road in his Bajaj Pulsar motorcycle bearing registration No.KL 25A 5673. The road takes a sharp turn near the place of occurrence and there is a protective barbed wire fencing on the Western side of the road. His body was found in a place, which is further down from the bottom of the wire fencing. Blood was also found on the top of the concrete pillars of the fencing. The persons, who rushed to the scene of occurrence, did not find his bike anywhere there. The cause of death was unknown. Hence the police registered Ext.P1(a) FIR under Section 174 of the Code of Criminal Procedure. 3. During the investigation, the accused 1 to 3 were arrested suspecting their involvement in the occurrence. Later, the police incorporated offences under Sections 302, 394, 201 read with Section 34 of IPC and proceeded with the investigation of the case. The first and second accused were produced before the JFCM Court, Punalur on 09.01.2011 and the third accused was produced on 12.1.2011. The 2[nd] and 3[rd] Crl.Appeal (V)No.586/2015 ..5.. accused were enlarged on bail during investigation. The first accused was not enlarged on bail and had been in judicial custody since he was involved in another murder case. The court below convicted and sentenced the 1[st] accused in the said murder case. Hence he faced the trial while undergoing sentence in the said case. 4. On completion of the investigation, the investigating officer-PW78 filed final report before the JFCM Court-I, Punlar for the offences punishable under Sections 302, 394 and 201 read with Section 34 of the IPC. The learned Magistrate committed the case to the Court of Sessions, Kollam after complying with usual formalities. The learned Sessions Judge numbered the case as S.C.No.1209/2011 and made over the case to the Additional Sessions Court-II, Kollam for trial and disposal. 5. In the trial proceedings, PWs.1 to 79 were examined and marked Exts.P1 to P65 on prosecution side. On closing the evidence of prosecution, accused 1 to 3 were questioned under Section 313 (1)(b) of Cr.P.C. According to ..6.. Crl.Appeal (V)No.586/2015 them, they were falsely implicated in this case after fabricating records and other materials by the police. The 1[st] accused stated that the police arrived at his residence 5 to 6 days prior to his production before the learned Magistrate and took him into custody by PW66 while he was sleeping. He was detained and tied up in a rubber estate near Kulathupuzha and brutally manhandled. The police plucked hairs from his head and kicked on his nose with boot which resulted in severe bleeding. The 2[nd] accused stated that he was arrested from his work place at Kumaramkudi 4 days prior to his production before the learned Magistrate. According to him, he was also severely manhandled by the police. The 3[rd] accused stated that he was working at Bangalore during 2006 to 2011 and the police detained his father and brother-in-law in custody and thereby pressurized his presence at the police station. 6. The learned Sessions Judge, who conducted the trial, did not deem it fit and proper for recording an acquittal under Section 232 of Cr.P.C. The accused were therefore called upon to enter on their defence that they might have Crl.Appeal (V)No.586/2015 ..7.. support thereof. Dws.1 to 8 were examined on the side of the accused and got marked Exts.D1 to D10 and identified MOs.1 to 27. 7. The appellants herein are aunt and foster mother respectively of the victim Shijad, who was found dead on 27.11.2010 at 11.30 pm at Pallamvetti in Kulathupuzha Taluk. According to the appellants, deceased Shijad was residing along with the 2[nd] appellant since his parents were no more. The 2[nd] appellant brought up the victim from his childhood. 8. In order to consider whether an appeal is maintainable at the behest of the appellants, who are stated to be the aunt and foster mother respectively of the appellants, the provision under Section 372 Cr.P.C. may be noticed which reads as under:- ## _“_ _**372. No appeal to lie unless otherwise provided**_ _No appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force._ _Provided that the victim shall have a_ Crl.Appeal (V)No.586/2015 ..8.. _right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”_ 9. A perusal of the provision would show that no appeal ordinarily lies from any judgment or order of a criminal court except as provided for by the said Code or by any other law for the time being in force. Nevertheless, in terms of the proviso, a 'victim' has a right to prefer an appeal against any order passed by the court acquitting the accused. The term 'victim' is defined under Section 2(wa) of Cr.P.C. which reads as under:- _''Victim'' means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ''victim'' includes his or her guardian or legal heir.”_ On a plain reading of Section 2(wa), the word 'victim' means ..9.. Crl.Appeal (V)No.586/2015 only a person, who has suffered any loss or injury caused by reason of the act or omission of the offender and 'victim' includes his or her guardian or legal heir. In this case, admittedly, the appeal has been filed by the aunt and foster mother of the victim respectively. Parties are Muslims governed under the Muslim Law. We are of the view that they would not come within the definition of 'victim' as defined under the Cr.P.C. The appellants are not legal heirs of the deceased so as to be entitled to file an appeal in terms of the proviso to Section 372 of Cr.P.C. The appellants also had not suffered any loss or injury caused by the reason of act or omission of the offenders. The right to file an appeal has been given to a victim who has suffered loss or injury and includes his legal heir or guardian. 10. Judged by the above standards, we are of the view that the appellants are not victims so as to be entitled to file an appeal in terms of the proviso to Section 372 of Cr.P.C. 11. This case has been pending since 2015 onwards. Considering the fact that this case has been pending for the Crl.Appeal (V)No.586/2015 ..10.. last five years, we have considered the matter on merits as well. 12. The specific case against the accused is that they had a common intention to robe the motorcycle belonged to the victim and his other belongings. In furtherance of their common intention to achieve their object, on 27.11.2010 the 1[st] accused reached at the place of residence of the 2[nd] and 3[rd] accused. The 1[st] accused possessed a knife belonged to the 3[rd] accused with the knowledge of other accused and all of them ensured the presence of Shijad and his vehicle at his office. Thereafter, they shifted to Pallamvetti, a desolate place, for committing the offence. In addition to the knife possessed by the 1[st] accused, they also possessed a wooden stick which was held by the 2[nd] accused. After preparation, they waited for the arrival of Shijad and in the meanwhile they communicated each other in their mobile phones. When Shijad came in his bike wearing his helmet, the 3[rd] accused forcibly obstructed the bike and the 2[nd] accused beat on the helmet of the victim with the wooden stick. As a result, the helmet flew away from Crl.Appeal (V)No.586/2015 ..11.. his head and the 2[nd] accused hit him on his head with the said stick. The 1[st] accused stabbed Shijad on his right chest and pushed him down from the bike and the 2[nd] accused hit him on his head. While so, the 1[st] accused again stabbed Shijad on his neck, throat and face. While the accused were searching his body, they noticed that a vehicle was coming from the Southern side and they dragged the dead body through the road and threw it over the barbed wire fencing to a bushy place in the RPL Estate with a view to cause disappearance of evidence. Thereafter, the accused robbed the bike of Shijad worth Rs.60,000/-, his helmet worth Rs.500/- and the 1[st] accused rode the vehicle with the 2[nd] and 3[rd] accused as pillion riders. 13. It is further alleged by the prosecution that the accused cleaned their body, robbed articles from the blood stains with a handkerchief kept in the tank cover of the bike and the handkerchief and records of the vehicle were thrown away by the side of Kallada river. While riding the motorbike, the 3[rd] accused threw away the helmet near Mazhuvangadu. Crl.Appeal (V)No.586/2015 ..12.. Thereafter, the accused rode the motor cycle to Thiruvalla Railway Station and parked the same in the parking ground. The 2[nd] accused scratched away parts of some digits in the number plate of the bike with a view to prevent its identification. The 1[st] accused also caused disappearance of evidence by throwing the knife used for committing the offence. 14. PWs.9, 10, 13, 14 and 15 are the witnesses who had seen the accused in the place of occurrence while they were moving through the place of occurrence. They had occasion to see the accused in a suspicious circumstance at Pallamvetti, a desolate place in Kulathupuzha Taluk. PWs.19, 23, 24, and 30 were examined to prove the identity of the accused 1 to 3. The prosecution also adduced evidence to show that the accused 1 to 3 had absconded from the place of their residence immediately after the occurrence. PW78 recovered the bike from Thiruvalla Railway Station on the basis of Ext.P20(a) disclosure statement given by the 1[st] accused. Helmet was recovered on the basis of Ext.P21(a) disclosure Crl.Appeal (V)No.586/2015 ..13.. statement given by the 3[rd] accused. Pants and shirt were recovered at the instance of the 3[rd] accused pursuant to Ext.P22(a). In addition to the above, the prosecution produced the tower location and SIM card location to prove that the accused were present at the place of occurrence and thereafter they proceeded through Kunnicodu together. PW68, PW69 and PW79 coupled with Exts.P12, P34 to P37(d), P39, P64 and P65 were relied on by the prosecution to prove that the accused 1 to 3 were present within the tower location of Manchiyamkunnu at 5.50 pm. Over and above, presence of human blood in the dress worn by the accused, purse, footwear and key were also relied on by the prosecution. MO18 helmet having 'O' group blood was also strongly relied on. More so, the presence of hairs of the 1[st] accused and the deceased in MO18 helmet as noted by PW78 in Ext.P59(b) FSL report was relied on to prove that the 1[st] accused committed the offence as alleged by the prosecution. 15. It has come out in evidence that MO5 bike was parked in an open ground at Thiruvalla Railway Station. PW24 Crl.Appeal (V)No.586/2015 ..14.. and PW29 testified that if a bike was not taken back by the customer within a reasonable period, they would definitely inform the matter to the police. Recovery of MO13 key was not proved. When PW78 was examined before court, it was found that MO13 key was not suitable for MO5 bike. PW71-the Assistant Motor Vehicle Inspector who inspected MO5 bike did not make any attempt to start the bike with MO13 key. In Ext.P38 report, he did not state that the bike was in working condition when he inspected the vehicle. In view of the above circumstances, the trial court correctly found that the prosecution failed to prove nexus between MO13 key and MO5 bike. 16. MO18 helmet was identified by PW1 as the helmet usually wore by the deceased. PW1, who is none other than the relative of Shijad had doubted MO18 helmet as the helmet usually wore by Shijad had several scratches on its top. PW1 and PW11 referred to the helmet worn by Shijad as red coloured one but the helmet produced before the court was not red in colour but dark maroon in colour. A fiber glass piece Crl.Appeal (V)No.586/2015 **==> picture [28 x 8] intentionally omitted <==** of helmet was found near the place of occurrence but the same has no connection with MO18 helmet as per Ext.P63 FSL report. MO18 contains 12 hairs similar to that of the deceased as per Ext.P59(b) and the same also contain 5 hairs similar to that of the 1[st] accused. However, no DNA examination was done to prove that the hairs located inside the helmet was that of the 1[st] accused. Under the circumstances, identifying a person by comparison of hairs or the accuracy of comparison of two sets of hairs is not a safe method to fix criminal liability. The finding of the court below in this respect is legally sustainable. In this connection, it is relevant to note that MO18 though produced before the court below at first, it was taken back by the prosecution and then it was reproduced before the court below only after the lapse of about 20 days and during these periods, MO18 was in the custody of the police without sealing or preserving the same. Further, MO18 helmet was not properly identified by any of the close relatives. 17. Coming to MO10 handkerchief, there is no evidence Crl.Appeal (V)No.586/2015 ..16.. to show that it belonged to the deceased. PW1 and PW11 had not deposed that it was being used by Shijad. 18. Voluminous evidence was adduced by the prosecution to prove the call data records of the accused and the witnesses. Based on the testimonies of PWs.67, 68, 79 and the documents such as Ext.P37, P38, P64 series and P65 series, all the Nodal Officers examined before court stated that IMEI number could be traced from the software, which is generally having 14 digits. They further stated that the handset can be identified based on the first 14 digits and all the service providers are giving importance to the first 14 digits. It is true that going through the testimony of the said witnesses and the documents produced by them, it is evident that the SIM card in the name of the 1[st] accused and the SIM card in the name of the father of the 2[nd] accused were located within Manchiyamkunnu B tower at about 5.50 pm on the date of occurrence. Pallamvetti is coming exactly within the tower location of Manchiyamkunnu B. However, the SIM cards seized by the police were not sealed or preserved in accordance with Crl.Appeal (V)No.586/2015 ..17.. law. The printouts pertaining to call data records exhibited by the prosecution are not conclusive proof to show that the accused committed the offence. The only inference which could be drawn is that they were available within the tower location on the date of occurrence. Merely for that reason, as rightly pointed out by the trial court, the court may not arrive at a conclusion that the accused persons have actual involvement in the murder of Shijad. In such circumstances, even the tower location details make only a possibility that those persons, who used the SIM card, might have been within a particular area coming within the reach of that tower. 19. Most of the witnesses examined by the prosecution had seen the accused on the date of occurrence, near the place of occurrence or inside the bus or in the fuel pump or at a fast food shop, etc. They have stated that the accused persons were found at the place of occurrence and while they saw them, the 1[st] accused stood on one side of the road and others on the other side. The second and third accused were mocking cricket actions. Most of these witnesses identified the Crl.Appeal (V)No.586/2015 ..18.. accused at the court by referring to their names. They admitted that the investigating officer summoned them before the police station and had shown the accused to them. Evidence of PWs.19, 23, 24, 29 and 30 would indicate that they still remembered the features of the accused after the lapse of several years. It is pertinent to note that no test identification parade was conducted in this case. Most of the witnesses had no occasion to see the accused prior to the date of occurrence in this case. Identification parades are not primarily meant for the court. The object of conducting test identification parade is two fold. Firstly, to enable the witnesses to satisfy themselves that the accused whom they suspect is indeed the natural person they had seen previously in connection with the commission of crime. Secondly, to satisfy the investigating authorities that the suspect is the same person whom the witnesses have seen in connection with the said offences. In this case, accused were arrested and brought before the police station. The witnesses were summoned to the police station for identification of the Crl.Appeal (V)No.586/2015 ..19.. accused. The manner in which the identification of the accused was made by the investigating officer immediately after the arrest is illegal. Hence, the subsequent identification of the accused made by the witnesses before court after a considerable lapse of time is difficult to believe. When PW3 was asked by the court below whether he can recollect the colour of the dresses of the accused, he failed to do so. In view of the circumstances, the trial court rightly held that the version of PW13 that he could identify the wooden stick held by the 2[nd] accused is unreliable. It is brought out in evidence that the witnesses did not know the accused earlier. Hence the accused could be identified only through a test identification parade which was not done in this case. 20. The learned Additional Sessions Judge held that the independent witnesses were not worthy of credit and accordingly acquitted the accused. The sole question in this appeal is whether this Court is justified in the exercise of appellate jurisdiction to set aside an order of acquittal. It is well settled principle of law that upon an appeal from an Crl.Appeal (V)No.586/2015 ..20.. acquittal, the appellate court is not entitled to interfere with the decision of the trial court on facts unless it has acted perversely or otherwise improperly. In **Harbans Singh v. State of Punjab [1962 AIR 439]** the Apex Court observed as follows:- _“What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable.”_ ## 21. In **Chandrappa v. State of Karnataka** [(2007) 4 SCC 415], it was held by the Supreme Court that the appellate court has vast power in appeal. It has jurisdiction to reappreciate or reconsider the entire evidence on record. To put it differently, the aggrieved is entitled to produce all evidence to re-appreciate the case before the appellate court. However, the settled principle is that the appellate court should not Crl.Appeal (V)No.586/2015 ..21.. disturb the finding of an acquittal if two conclusions are possible from the record of the case and the trial court has taken a probable view **(Luna Ram v. Bhupat Singh & Others** [(2009) 3 SCC 749]. Going by the entire evidence, we are of the view that the order of acquittal cannot be altered as no manifest illegality is brought out. The decision of the court below is not perverse. It is well settled law that an appeal against acquittal seeking to set aside the judgment of the trial court, the High Court does not, in the absence of perversity, upset findings arrived at by the trial court. It is not for the appellate court to re-analyse and reinterpret the evidence on record in a case where the trial court has come to a probable conclusion. 22. As indicated earlier, there is a presumption of innocence in favour of the accused. Secondly, the accused is entitled to the benefit of reasonable doubt. Having regard to the views of the trial court as to the credibility of witnesses in matters resting on pure appreciation of evidence, we are of the view that sitting in appeal, this Court is not justified in Crl.Appeal (V)No.586/2015 ..22.. disturbing a finding of fact arrived at by the trial Judge who had the advantage of seeing and hearing the witnesses. The trial court, on appreciation of evidence, extended benefit of doubt to the accused after examining the evidence in detail. On a re-appreciation of the entire facts and circumstances of the case in appeal, we are of the view that the trial court has taken a probable view after examining the entire evidence. The views of the trial court are reasonably possible. In the above circumstances, the finding of acquittal cannot be disturbed. 23. 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_ Crl.Appeal (V)No.586/2015 ..23.. _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 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 doubt, the court is at liberty to award conviction based on circumstantial evidence. 24. When the evidence on record is analysed in the ..24.. Crl.Appeal (V)No.586/2015 above background of principles highlighted above, the trial court has entered a finding that the circumstances, from which an inference of guilt is made, are not firmly established in this case. We also agree with the finding of the trial court. 25. On going through the entire evidence, we find that investigation conducted by PW78 is defective. Considering the facts and circumstances of the case, we think it is appropriate to examine as to whether there is any lapse on the part of the investigating officer and whether due to such lapse, investigation is faulty. The law on this point is very much that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such design or negligent investigations or to the omissions or lapses, no doubt, the faith and confidence of the people in the criminal administration of justice would be jeopardised. Even if the investigation is illegal, the level of the Investigating Officer ruling the roost is not permissible in law (vide **Chandrakant Luxman v. State of Maharashtra** [AIR 1974 SC 220], **Ram Bihari Yadav v. State of Bihar** [AIR 1998 SC 1850], **Paras Yadav v. State** Crl.Appeal (V)No.586/2015 ..25.. **of Bihar** [AIR 1999 SC 644] and **State of Karnataka v. K.Yarappa Reddi** [AIR 2000 SC 185]. 26. We have no hesitation to hold that the investigation is defective since the investigating officer has not conducted test identification parade in this case in accordance with law. No reason is offered as to why hair samples and the blood traced from the material objects were not forwarded for DNA examination to prove the identity of the accused. The learned Sessions Judge has discussed the faulty investigation conducted with clarity in thoughts and expressions. The State has not filed any appeal challenging the acquittal. In the result, the appeal stands dismissed. **Sd/-** **A.HARIPRASAD, JUDGE** **Sd/-** **N.ANIL KUMAR, JUDGE** skj