CRL.A. Nos.95 of 2016 & 1151 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 28TH DAY OF JANUARY, 2020 / 8TH MAGHA, 1941** **CRL.A.No.95 OF 2016** **[AGAINST THE ORDER IN CP 168/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA** **AGAINST THE ORDER/JUDGMENT IN SC 647/2009 DATED 22-12-2015 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, KOLLAM** **CRIME NO.1271/2006 OF Kottarakkara Police Station , Kollam]** ## **APPELLANTS/ACCUSED NOS.1 AND 2:** - **1 ANEESH,S/O.RAMACHANDRAN, AGED 43 YEARS AMBILY VILASOM, PADINJATTINKARA MURI, KOTTARAKKARA.** - **2 SANTHOSH, S/O.GOPALAKRISHNAN** **BINDU BHAVAN, KOTTARAKKARA, KOLLAM. [DELETED] [SECOND APPELLANT/ACCUSED NO.2 IN CRL.A 95/2016 IS SUOMOTU DELETED FROM THE ARRAY OF PARTIES AS PER COMMON ORDER DATED 11/01/2018 IN CRL.A 95/2016 & CRL.A 1151/2017.]** ## **BY ADV.** ## **SRI.RENJITH B.MARAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.01.2020, ALONG WITH CRL.A.1151/2017, THE COURT ON 28.01.2020 DELIVERED THE FOLLOWING:** Crl.A.Nos..95 of 2016 & 1151 of 2017 :-2-: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 28TH DAY OF JANUARY, 2020 / 8TH MAGHA, 1941** **CRL.A.No.1151 OF 2017** **AGAINST THE ORDER IN CP 168/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA** **AGAINST THE JUDGMENT IN SC 647/2009 DATED 22-12-2015 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, KOLLAM** **CRIME NO.1271/2006 OF Kottarakkara Police Station , Kollam** ## **APPELLANT:** ## **SANTHOSH,** **S/O.GOPALA KRISHNAN,CONVICT NO.651 CENTRAL PRISON, THIRUVANANTHAPURAM.** **BY ADV. SRI.C.RAJENDRAN** ## **RESPONDENT:** ## **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **15.01.2020, ALONG WITH CRL.A.95/2016, THE COURT ON** **28.01.2020 DELIVERED THE FOLLOWING:** Crl.A.Nos..95 of 2016 & 1151 of 2017 :-3-: ## **J U D G M E N T** (Dated this the 28[th] day of January,2020) ## **N.ANIL KUMAR,J:** Both the appeals are filed by the appellants, who are the first and second accused in S.C.No.647/2009, against the judgment and order passed by the Additional Sessions Court-VI, Kollam in the above sessions case dated 22.12.2015. By the impugned judgment and order, the learned Sessions Judge convicted the first and second accused for the offences punishable under Sections 392 and 302 read with 34 of the Indian Penal Code (for short 'IPC') and the first accused alone was convicted under Section 201 of IPC. The court below sentenced the first and second accused to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year more for the offence punishable under Section 302 I.P.C. and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2000/- and in default of payment of fine, to undergo rigorous Crl.A.Nos..95 of 2016 & 1151 of 2017 :-4-: imprisonment for six months for the offence punishable under Section 392 IPC. The first accused alone was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- and in default of payment of fine, to undergo rigorous imprisonment for three months for the offence under Section 201 I.P.C. All the sentences were ordered to run concurrently. 2. Crl.Appeal No.95/2016 has been filed by accused Nos.1 and 2 challenging the above judgment while both of them had been undergoing sentence. In the meantime, another appeal has been filed by the second accused from jail, which is numbered as Crl.A.No.1151/2017. Having regard to the fact that the second accused has filed a separate appeal from jail, by order dated 11.1.2018, this Court deleted the second accused from the array of parties in Crl.A.No.95/2016. Advocate C.Rajendran was ordered to be engaged as counsel for the appellant in Crl.A.No.1151/2017 by order dated 11.1.2018. 3. The prosecution case in brief is as hereunder:- On 24.12.2006, while the victim Arumugham was Crl.A.Nos..95 of 2016 & 1151 of 2017 :-5-: sleeping beneath a coconut tree inside the property of one K.K.Pillai (CW12), at the road margin near the shop of PW3Suresh @ Kannan situated near Neeleswaram-Ambalathumkala road at Kottarakkara, in Kollam District, the accused had physically lifted the victim and after taking him to the northwestern side of the aforesaid property, the accused tried to take away money from the inner pocket of his underwear. While so, the deceased had strongly obstructed the act of the accused. Feeling agitated, the first accused sat on the chest of the deceased and pressed his neck with both his hands and as a result of which Arumugham succumbed to the injuries. Meanwhile, the second accused had robbed an amount of Rs.560/- and a lottery ticket from his inner pocket. 4. Ext.P1 First Information Statement was given by PW1Raveendran Nair, who is a Ward Member of Kottarakkara Panchayat. He lodged Ext.P1 First Information Statement before PW12 on 25.12.2006. Ext.P1 First Information Statement disclosed that an unknown person was found dead on the Crl.A.Nos..95 of 2016 & 1151 of 2017 :-6-: southern side of Kottarakkara Railway Station. Consequently, PW12 registered Ext.P11 FIR under Section 174 of Cr.P.C. Pursuant to Ext.P11, PW12 proceeded to the scene of occurrence and prepared Ext.P7 inquest report. In Ext.P7 inquest report, in Column Nos.7 and 8(a), PW12 did not mention any injury on the body of the deceased. Column No.11 in Ext.P7 is pertaining to the apparent cause of death. PW12 noted that the cause of death of the victim is not known. Hence the dead body was sent for conducting postmortem examination. 5. On 25.12.2006 at 3.45 pm, while PW18 was working as Associate Professor of Forensic Medicine at the Medical College Hospital, Thiruvananthapuam, he had conducted postmortem examination on the body of an unknown male, later identified as Arumugham, involved in Crime No.12/2006 of Kottarakkara Police Station and issued Ext.P29 postmortem report noting 9 injuries on the body of the deceased. The injuries are as follows:- - “1. Abrasion 5x0.5cm horizontal on right side of neck, its front end 2.5cm below lobule of ear. 2. Multiple small abrasions over an area 2.5x2cm on right Crl.A.Nos..95 of 2016 & 1151 of 2017 :-7-: side of front of neck 1cm inner to inner end of injury No.1. The subcutaneous tissues underneath was contused over an area 5x3x0.5cm. 3. Contusion 2x1x0.5cm on left side of front of neck 2 cm outer to midline and 4cm below jaw bone. 4. Contusion 3x2x0.3cm on left side of front of neck 3cm outer to midline and just below jaw bone. 5. Contusion 3x2x0.5cm on left side of front of neck 2cm outer to mid line and just above collar bone. - Injury Nos.3 to 5 were seen on dissection only. Flap dissection of neck was done under bloodless field. Hyoid bone was found fractured at the junction of greater horn and body on left side. Other cartilages and bones of neck were normal and intact. 6. Contusion 1.5x0.4cm on left side of face overlying the angle of jaw bone. 7. Lacerated wound 0.5x0.3x0.5cm on the inner aspect of lower lip at the left angle of mouth (involving its whole thickness). 8. Abrasion 1.5x0.5cm along the outer rim of left ear lobule on the back aspect. 9. Abrasion 1x1cm on the outer aspect of left elbow.” 6. PW18 testified before court that the death was due to blunt injuries sustained to the neck. According to him, injury Nos.1 to 5 were sufficient to cause death of a person in the ordinary course of nature. PW18 further testified that, in the case Crl.A.Nos..95 of 2016 & 1151 of 2017 :-8-: at hand, the death of the victim could have happened 6 hours prior and within 18 hours of the postmortem examination. On cross-examination, PW18 ruled out the possibility of causing the injuries as a result of a fall on the road. Going by Ext.P29 postmortem report, it is clear that Arumugham died as a result of blunt injuries sustained to his neck. The death is homicidal in nature. 7. On receipt of Ext.P29 postmortem report, PW13 submitted Ext.P17 report before court incorporating Sections 302, 392, 201 read with Section 34 of IPC. During investigation, PW13 arrested the first accused on 27.12.2006 at 5 pm from the Railway Station at Avaneeswaram in accordance with law. PW13 conducted preliminary investigation in this case and further investigation in this case was conducted by PW14. On 31.1.2007 at 4.15 pm, PW14 arrested the second accused from the Ponnumpuzha Junction at Manimala in accordance with the rules. On being questioned, the second accused confessed in police custody by way of Ext.P25(a), that he had kept the lungi and Crl.A.Nos..95 of 2016 & 1151 of 2017 :-9-: shirt, which were worn by him on 24.12.2006 at 1.30 pm, in his house and he would show the same if he was taken to the place where it was kept. Based on Ext.P25(a), PW13 proceeded to the house No.132 in Ward No.XII of Kottarakkara Panchayat as led by the accused and recovered MO5 shirt and MO6 lungi as provided under Section 27 of the Evidence Act. The rest of the investigation was conducted by PW15 and he laid the final report before court. 8. Upon hearing both, on consideration of the final report and the documents attached thereto, the trial court framed charges under Sections 392,302,201 read with 34 of IPC as against accused Nos.1 and 2. They pleaded not guilty to the charges. 9. In order to substantiate the prosecution case, the prosecution examined 19 witnesses as PWs.1 to 19 and marked 34 documents as Exts.P1 to P34. The prosecution further produced 6 material objects as MOs.1 to 6. 10. After the closure of the prosecution evidence, the Crl.A.Nos..95 of 2016 & 1151 of 2017 :-10-: accused were questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing in the evidence against them. Their defence is one of total denial. 11. 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 and adduce evidence which they might have in support thereof. However, no defence evidence was adduced. 12. We heard Sri.Renjith.B.Marar, learned counsel for the appellant in Crl.A.No.95 of 2016 and Sri.C.Rajendran, learned counsel for the appellant in Crl.A.No.1151 of 2017 and Sri.S.U.Nazar, learned Senior Public Prosecutor, who appears for the State. 13. Before proceeding further, we find it necessary to look into the evidence on record. PW2 is cited as an eye witness to prove the occurrence. PW2 testified that CW2-Sasidharan Pillai, who passed away during the pendency of the proceedings, was his brother-in-law, who was running a petty shop of one Suresh on 24.12.2006, as entrusted to him while the latter went Crl.A.Nos..95 of 2016 & 1151 of 2017 :-11-: on a pilgrimage to Palani. During investigation, PW2's statement was recorded by the learned Magistrate under Section 164(1) of Cr.P.C. However, he turned hostile to the prosecution denying Ext.P2 statement given before the learned Magistrate. According to him, he saw the accused lifting the victim and carrying him to the front of his shop room. Then they suddenly released the victim and the deceased fell down heavily. PW2 did not support the prosecution case that the accused had assaulted the deceased. Learned Public Prosecutor who prosecuted the case before the court below sought permission of the court to put leading questions to him which might be asked in cross-examination. In fact, PW2 turned hostile to the prosecution. During crossexamination, nothing was elicited from PW2 to show that he was supporting the prosecution. 14. PWs.3,4,6,9 and 10 turned hostile to the prosecution. No offence was made out against the accused from the evidence let in by them. Although the learned Public Prosecutor, who conducted the prosecution before the trial court put leading Crl.A.Nos..95 of 2016 & 1151 of 2017 :-12-: question to the witnesses, nothing was brought out to connect the accused with the crime. 15. PW5 -Raju stated that he was working as a Salesman in a toddy shop near to the railway station at Kottarakkara. He was a signatory to Ext.P6 mahazar prepared by PW12 **.** According to him, he did not supply toddy to the deceased on the date of occurrence. 16. PW7 is an autorickshaw driver at Kottarakkara. He stated that on the very day of Christmas in 2006, accused Nos.1 and 2 hired his autorickshaw and went to Pulamon in the afternoon. 17. PW8 is a signatory to Ext.P7 inquest report prepared by PW12. 18. PW11-Village Officer prepared Ext.P10 scene plan as directed by the investigating officer. 19. PW12 registered Ext.P1 FIR on the strength of Ext.P1 statement given by PW1. PWs.13 and 14 questioned the witnesses, recorded their statements and completed part of the Crl.A.Nos..95 of 2016 & 1151 of 2017 :-13-: investigation. PW15 completed the rest of the investigation and filed the final report before court. 20. PW16 was working as a cook in a toddy shop near to the railway station at Kottarakkara. He stated that he had given statement before the Police in connection with the death of a person hailing from Tamil Nadu. He stated that he did not see him before his death. The prosecution examined PW16 to establish the last seen theory. However, he turned hostile to the prosecution denying the theory advanced by the prosecution. However, PW17 yet another employee of the toddy shop bearing Regn.T.S.No.37 stated before court that he had seen the person hailing from Tamil Nadu on 24.12.2006 at 12 noon along with the company of the accused 1 and 2. 21. The learned Sessions Judge examined PW19 to prove the statement given by PW2 under Section 164(1) of Cr.P.C. 22. Appreciating the above evidence, the trial court convicted and sentenced accused 1 and 2 as stated in paragraph 1 Crl.A.Nos..95 of 2016 & 1151 of 2017 :-14-: of this judgment.On going through the impugned judgment, it is clear that the trial court mainly relied on the statement given by PW2 under Section 164 of Cr.P.C. The trial court further relied on the statement given by CW2, who died during the pendency of the proceedings under Section 32 of the Evidence Act. Further, the trial court held that the deceased was lastly seen in the company of accused Nos. 1 and 2 on 24.12.2006 in the after noon. 23. Learned counsel for the appellant Sri.C.Rajendran contended that all the main prosecution witnesses have turned hostile to the prosecution. It is a fact that they did not adduce any evidence in support of the prosecution. The learned counsel further submitted that since there are no circumstances to prove the offence against the accused beyond doubt, the court below had gone wrong in convicting accused Nos.1 and 2 based on suspicion. According to the learned counsel, suspicion, however strong, cannot be allowed to take the place of proof. 24. In this connection, it must be revealed here that Crl.A.Nos..95 of 2016 & 1151 of 2017 :-15-: accused 1 and 2 were convicted by the learned Sessions Judge, finding them guilty of robbery and murder of one Arumugham. It must also be underscored that the conviction was mainly based on the statements alleged to have been given by PW2 and CW2 under Section 164(1) of Cr.P.C. and based on the statement of CW2 under Section 161 of Cr.P.C. 25. Having heard the learned counsel for the appellants as well as the learned Senior Public Prosecutor and having bestowed to the respective submissions and the materials placed on record, we find that the substantial contentions raised by the learned counsel for the appellants are that the trial court wrongly appreciated inadmissible materials as legal evidence. The important point arising for consideration in these appeals is as to whether the trial court was justified in convicting the appellants without legal evidence. The answer is an emphatic “no”. An accused cannot be convicted and sentenced of a crime without legal evidence. If there is zero evidence against the accused, under law, it is not possible for the court to convict the Crl.A.Nos..95 of 2016 & 1151 of 2017 :-16-: accused. 26. In the impugned judgment, the trial court freely used Exts.P33 and 34 statements recorded under Section 164 of Cr.P.C. to order conviction against the accused 1 and 2. The object of recording statement of witnesses under Section 164 of Cr.P.C. is to minimise the chances of changing the version by the witnesses at the trial court under the fear of being involved in perjury. 27. The object behind the recording of statement under Section 164 of Cr.P.C. is that during the course of the investigation, in Police records and the statements under Section 161 of Cr.P.C. the law does not permit the Police to administer the oath to the person making the statement and cannot obtain his signature. However, under Section 164 of Cr.P.C. a Magistrate recording the statement of a witness can administer oath to him and obtain the signature over the statement. Thus, the witness making and signing a statement before the Magistrate during the course of investigation is obliged to standby what he said before Crl.A.Nos..95 of 2016 & 1151 of 2017 :-17-: the learned Magistrate. 28. The statement recorded under Section 164 of Cr.P.C. is not a substantive piece of evidence. It is like a previous statement given during investigation under Section 161 of Cr.P.C. The statement recorded under Section 161 Cr.P.C. can be used only to contradict the witnesses as provided under Section 162 of Cr.P.C. However, the statement recorded under Section 164 of Cr.P.C. can be used either to contradict or corroborate the witnesses as provided under Sections 145 and 157 of the Evidence Act. 29. Section 145 of the Evidence Act does not speak about as to which statement recorded under Section 161 of Cr.P.C. or 164 of Cr.P.C. is to be treated as a previous statement in writing. Thus, both the statements recorded under Sections 161 and 164 of the Cr.P.C. are the previous statements to invoke Section 145 of the Evidence Act. 30. Although the statement of a witness recorded under Section 164 of Cr.P.C. pending investigation is also a previous statement recorded under Section 161 of Cr.P.C., it has Crl.A.Nos..95 of 2016 & 1151 of 2017 :-18-: some higher value than the statement recorded under Section 161 of CrP.C. In a decision reported in **Ramprasad** v. **State of Maharashtra** [1999 Crl.L.J 2889], the Apex Court in paragraph 15 held as follows:- “Be that as it may, the question is whether the court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.” 31. In the case at hand, the learned Sessions Judge summoned PW19- the learned Judicial First Class Magistrate-II, Kottarakkara to prove Ext.P33 statement alleged to have been Crl.A.Nos..95 of 2016 & 1151 of 2017 :-19-: given by PW2 before the latter. It has come to our notice that the learned Session Judges while conducting trial in sessions cases are invariably issuing summons to the Magistrates, who recorded the statement under Section 164 of Cr.P.C. even if the witnesses have turned hostile to the prosecution or have been dispensed with by the prosecution or not examined by the prosecution due to several reasons. Consequently, the statement recorded before the learned Magistrate, during investigation at a time when the accused was not in the picture, would become part of the evidence. The learned Sessions Judge was carried away by the impression that what was recorded before the Magistrate under Section 164 of Cr.P.C. is evidence in the case and to be acted upon accordingly. 32. In **Guruvindapalli Anna Rao** v. **State of A.P.** [2003 CRI.LJ 3253], a Division Bench of the Andhra Pradesh High Court held that the previous statement of a witness under Section 164 of Cr.P.C. has been recorded by a Magistrate and it is invariably not necessary to summon and examine him as a Crl.A.Nos..95 of 2016 & 1151 of 2017 :-20-: witness. In the above decision, it was held as follows:- “7. We would like to put one more discrepancy on record, viz., that while recording evidence, the learned II Additional Sessions Judge had summoned the I Additional Munsiff Magistrate, Tenali (PW.10) to prove the statement of P.W.1 recorded by him under Section 164 Cr.P.C. This Court has already ruled if any Magistrate records the statement of a witness under Section 164 Cr.P.C, it is not necessary for the Sessions Judges to summon that Magistrate to prove the contents of the statement recorded by him. This Court has already ruled that when a Magistrate, discharging his official functions as such, records the statement of any witness under Section 164 Cr.P.C, such statement is a 'public document' and it does not require any formal proof. Moreover, it is seen that the learned II Additional Sessions Judge, Guntur, while recording the evidence of the I Additional Munsif Magistrate, Tenali (PW.10), has exhibited the statement of P.W.1 recorded by the Magistrate as Ext.P.10. As a matter of fact, such statement cannot be treated as a substantive piece of evidence. Such statement can be made use of by the prosecution for the purpose of corroboration, or by the defence for contradiction, under Section 145 of the Evidence Act. Therefore, the II Additional Sessions Judge, Guntur, is directed to note the provisions contained in Section 145 of the Evidence Act. Even if a statement is recorded by a Magistrate, it is not a substantive piece of evidence, but it is only a previous statement.” 33. We are of the view that it is not necessary to summon invariably the learned Magistrates, who have recorded the statements of witnesses under Section 164 of Cr.P.C. when a Crl.A.Nos..95 of 2016 & 1151 of 2017 :-21-: witness who gave the statement turned hostile as it was done in the case on hand. In **Kashmira Singh** v. **State of M.P.** [AIR 1952 SC 159], the Apex Court followed the judgment in **Nazir Ahamed** v. **King Emperor** [AIR 1936 PC 253] and held as follows:- “....................There is one argument about this confession advanced on behalf of the appellant with which we shall have to deal. The prosecution were criticised for not calling the magistrate who recorded the confession as a witness. We wish to endorse the remarks of their Lordships of the Privy Council in Nazir Ahmed v. King Emperor (AIR 1936 PC 253(2)at p.258, regarding the undesirability of such a prac- tice. In our opinion, the Magistrate was rightly not called and it would have been improper and undesirable for the prosecution to have acted otherwise.” 34. In the case before us, in spite of the fact that PW2 turned hostile in toto, the learned Sessions Judge relied on it presumably for the reason that it was recorded by a Magistrate in his official capacity. The procedure adopted by the learned Sessions Judge is illegal. At the most, if the witness, whose statement is recorded under Section 164 of Cr.P.C. turns hostile, the only course available before the learned Sessions Judge is to prosecute the witness for perjury. Nothing more,nothing less. 35. The learned Sessions Judge further relied on the Crl.A.Nos..95 of 2016 & 1151 of 2017 :-22-: statement of CW2, who passed away pending proceedings before the trial court. According to the learned Sessions Judge, the said statement is relevant under Section 32 of the Evidence Act. 36. The fundamental and elementary legal proposition is that a statement made by any person examined in the course of investigation recorded under Section 161 of Cr.P.C. cannot be treated as substantive evidence except when cases where the provisions of clause (1) of Section 32 of the Evidence Act or with regard to a discovery under Section 27 of the same Act are applicable. The above statement of law would result in a position that a purported recorded statement under Section 161 of Cr.P.C. of a victim having regard to the subsequent event of the death of a person making the statement, who was a victim, would enable the prosecuting authority to rely upon the said statement as one of the dying declarations under Section 32(1) of the Evidence Act. 37. Section 162(2) of the Cr.P.C. reads as follows:- Crl.A.Nos..95 of 2016 & 1151 of 2017 :-23-: ## **“162. Statements to police not to be signed--Use of statements in evidence** - (1) xxxxxxxxxx xxxxxxxxxx - (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act.” ## 38. Under Section 32(1) of the Evidence Act, it has ## been stated as under:- ## “ **32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant.** Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:— (1) _when it relates to cause of death_ . —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” ## 39. On a reading of Section 32(1) of the Evidence Act, it is clear that such a statement would be relevant even if a Crl.A.Nos..95 of 2016 & 1151 of 2017 :-24-: person, who made the statement, was or was not at the time when it was made under the expectation of death. 40. Keeping the above factors in mind, we are of the view that the learned Sessions Judge seriously went wrong in relying on the statement of CW2 after his death. The statement of CW2 at the time when it was made is not relating to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. CW2 was not a victim as defined under Section 2(wa) of the Cr.P.C. Keeping the above principle in mind, we have no hesitation in holding that the statement of CW2 as relied upon by the trial court as an acceptable piece of evidence after his death, is illegal. 41. The learned Sessions Judge has also relied on the oral evidence of PW17 and entered a finding that the accused was obliged to offer an explanation as to what happened to Arumugham after 24.12.2006 at 12 noon applying the principles of last seen theory. In this case, apart from the statement of PW17 that he had occasion to see the deceased in the company of Crl.A.Nos..95 of 2016 & 1151 of 2017 :-25-: the accused on 24.12.2006 at 12 noon, no other evidence was adduced by the prosecution. We are of the view that the sole evidence adduced by PW17 is not sufficient to hold that the accused are obliged to offer an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. ## 42. In v. **Satpal State of Haryana** [(2018) 6 SCC ## 610] in para 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 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_ Crl.A.Nos..95 of 2016 & 1151 of 2017 :-26-: _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.”_ 43. On a consideration of the entire facts and circumstances in the instant case, as noticed by the trial court in the impugned judgment to prove the offence under Sections 201,394 and 302 of IPC, we are of the view that the trial court was visibly wrong. On a re-appreciation of the circumstances relating to the crime, the place of occurrence, relationship of the accused and the deceased, motive for the crime, the nature of injury sustained in the deceased, the place where the deceased was last seen together with the company of PW17 and the time when they were last seen together and the surrounding circumstances would unhesitatingly create suspicion in our mind. When there was no evidence to support the prosecution, the trial court wrongly relied on the last seen evidence, the statements recorded under Sections 161 and 164 of the Cr.P.C. to sustain a conviction for the offence as alleged against the accused. In our Crl.A.Nos..95 of 2016 & 1151 of 2017 :-27-: opinion, the trial court passed the judgment and order of conviction illegally. 44. In the result, in the given facts and circumstances of the case, we are unable to sustain the conviction imposed by the trial court. The appellants/accused in both the criminal appeals are thus entitled to get the benefit of doubt. Both the appeals succeed and are accordingly allowed. Both appellants in custody are directed to be released forthwith, if they are not required in any other case. 45. Finally and most importantly, on a careful and objective consideration of the facts and law involved in this case, we are of the view that more effective judicial training shall be scientifically structured for Sessions Judges for their effective performance. It has come to our notice that in a significant number of cases, trial judges have been awarding severe punishment to the accused for commission of a crime that merely exists in the Judge's imagination and nowhere else. Miscarriage of justice will continue as long as our criminal justice system relies on unreliable terms of Crl.A.Nos..95 of 2016 & 1151 of 2017 :-28-: evidence, such as statements recorded under Sections 161 and 164 of Cr.P.C. The present case is an excellent example to show a real crisis of confidence in the criminal justice delivery system, when the case at hand is revealed to be a case of wrongful conviction without any evidence on record. We hasten to add that the wrongful conviction of an accused is the worst nightmare to anyone, who loves and cares the justice delivery system. It will therefore be necessary for extending appropriate training to judicial officers to analyse evidence in sessions cases with reference to the ground level facts and law. In view of the above, we direct the Registry to send a copy of this judgment to the Director, Kerala Judicial Academy for corrective action in this regard. The Registry is further directed to send a copy of this judgment to the learned Sessions Judge, who passed the impugned judgment for future guidance, wherever she is. Sd/- **A.HARIPRASAD** , JUDGE sd/- **N.ANILKUMAR** , JUDGE SKJ/MBS Crl.A.Nos..95 of 2016 & 1151 of 2017 :-29-: