CRL.A Nos.97 of 2013 & 185 of 2012: Jaleel @ Chackochi v. State of Kerala; Basheer S/o Majeed v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 01ST DAY OF AUGUST 2016 / 10TH SRAVANA, 1938** ## **CRL.A.No.97 OF 2013** ## **SC 337/2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM** ## **APPELLANT/ACCUSED NO.3** **JALEEL @ CHACKOCHI, C.NO.9387 CENTRAL PRISON, VIYYUR** **BY ADVS. SRI.VISHNUPRASAD NAIR SRI.VINAY RAMDAS** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR** **PUBLIC PROSECUTOR, SHRI K K RAJEEV** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.08.2016, ALONG WITH CRL.A.185/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 01ST DAY OF AUGUST 2016 / 10TH SRAVANA, 1938** ## **CRL.A.No.185 OF 2012** **SC 337/2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM** ## **APPELLANT/2ND ACCUSED:** **BASHEER S/O. MAJEED, RESIDING AT KANIKKOOTT, SIRAJ NAGAR, EDATHALA, ERNAKULAM DISTRICT.** **BY ADV. SRI.P.K.RAVISANKAR** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **PUBLIC PROSECUTOR, SHRI K K RAJEEV** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.08.2016, ALONG WITH CRL.A.97/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -3- ## **JUDGMENT** ## **B.Sudhendrakumar J.,** The appellant in Crl.Appeal No.185 of 2012 is the second accused and the appellant in Crl.Appeal No.97 of 2013 is the third accused in S.C. No.337 of 2007 on the files of the Additional Sessions Court, Ernakulam, who in these appeals challenge the conviction and sentence passed by the court below under Sections 120B, 447, 302 and 394 read with Section 34 I.P.C. 2. The prosecution allegation can be briefly stated as follows:- The appellants along with the other accused, in furtherance of their common intention to commit murder and robbery, robbed the autorikshaw of the deceased **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -4- KL-7/AY 7958 on Krishnankutty bearing Reg.No. 27.10.2006 in between 7.10 p.m. and 8 p.m., and committed murder of the deceased by strangulation with MO2 plastic rope. The accused hired the autorikshaw of the deceased and when the said autorikshaw reached on the public road leading to Co-operative Medical College, Kochi, the said autorikshaw was taken to the mud road of H.M.T. Colony by trespassing into the said compound. Thereafter, the appellants strangulated the deceased Krishnankutty with MO2 plastic rope. The first accused caught hold of the legs of the deceased. Thereafter, they dumped the body of the deceased on the ground believing that the said person was no more. Thereafter, the second accused robbed the watch and the third accused robbed the **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -5- mobile phone from the body of the deceased. The third accused also robbed the purse of the deceased. Thereafter, they had removed the dead body to the nearby bushes and left place in the autorikshaw. At that time, it was realised that the third accused had lost the robbed purse and therefore, the accused came back to the place of occurrence. Then they could realise that the deceased Krishnankutty did not die. Therefore, the second accused hit him with MO5 cement block on his face. The first accused gagged his mouth. The second accused strangulated the deceased by pressing his neck. The deceased died at or about the same time due to the constriction force applied on the neck of the deceased. 3. The first accused was absconding and hence, his ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -6- case was re-filed. 4. PW1 found the dead body of the deceased on 28.10.2006 at about 11.30 a.m. when he had gone to the place of occurrence for answering the call of nature. He immediately informed the matter to the security staff of H.M.T. company. Thereafter, he had gone to the police station and given Ext.P1 Statement. PW38 recorded Ext.P1 Statement of PW1 and registered Ext.P1(a) F.I.R. 5. The autopsy on the body of the deceased was conducted by PW28. Ext.P20 post-mortem certificate issued by PW28 would show that the deceased died due to ligature strangulation. The investigation was conducted by PW36. He arrested the appellants on 2.11.2006 at 5 p.m. MO6 mobile phone was recovered from the body of the **CRL.A.Nos.97 OF 2013 & 185 OF 2012** third accused by PW36. When arrested and questioned, the second accused had given Ext.P11(a), P13(a) and P26(a) disclosure statements. Pursuant to the said disclosure statements and as led by the second accused, incriminating articles were recovered by PW36. When questioned the third accused, he had given Ext.P17(a) disclosure statement and pursuant to Ext.P17(a) disclosure statement and as led by the third accused, MO19 shirt and MO18 pants worn by the third accused at the time of commission of the offence was seized by PW36 as per Ext.P17 seizure mahazar. After completing the investigation, PW36 laid the final report before the court. 6. In the trial, PW1 to PW39 were examined and Exts.P1 to P47 were marked for the prosecution, besides ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -8- identifying MO1 to MO26. Exts.D1 and D2 were marked for the appellants. 7. After evaluating the evidence, the court below found the appellants guilty under Sections 120B, 447, 302 and 394 read with Section 34 I.P.C. and convicted them thereunder and sentenced each of them to imprisonment for life under Section 120B I.P.C., rigorous imprisonment for three months each under Section 447 I.P.C., imprisonment for life and fine of Rs.10,000/- each under Section 302 I.P.C. and rigorous imprisonment for five years each and a fine of Rs.10,000/- each under Section 394 I.P.C. 8. We have heard the learned counsel for the appellants Shri.P.K.Ravisankar and Shri.Vishnu Prasad Nair and the learned Public Prosecutor, Shri.K.K.Rajeev. ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** 9. In this case, there is no direct evidence to prove the occurrence. Therefore, the prosecution relies on circumstantial evidence to connect the appellants with the commission of the offence. 10. PW28 was the Doctor, who conducted the postmortem examination on the body of the deceased and issued Ext.P20 postmortem certificate. PW28 noted the following ante mortem injuries on the body of the deceased:- (1) Brownish black transverse pressure abrasion 32 cm long, continuous present around neck, more prominent on front and sides of neck. It was placed 7 cm below the chin (1.2 cm broad), 7.5 cm above the sternal notch. Placed on the thyroid cartilage : 7.5 cm below the attachment of left ear lobule (1cm broad). 8 cm below the ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -10- occipital prominence at back (1 cm broad). 7.5 cm below the attachment of right ear (0.8 cm broad). A pressure abrasion 3x0.5 cm extended downwards and backwards from the ligature mark from below the angle of jaw. (2) Contusion 1x0.5x0.5 cm oblique, on the front of neck 2 cm to the right of midline and 0.5 cm below injury No.1. - (3) Contusion 1x1x0.5 cm on the front of neck just above injury No.1 and 4.5 cm to the right of midline. (4) Contusion 1x0.5x0.5 cm on the front of neck 1.5 cm above injury No.1 and 4 cm to the right of midline. - (5) Contusion 4x1.5x1 cm on the right side of neck just to the right of midline and just below jaw border. - (6) Contusion 1.5x1x0.5 cm on the front of neck 2 cm below jaw, border and 2.5 cm to the left of ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -11- ## midline. Flap dissection of neck was done under bloodless field. There was infiltration of blood in to the subcutaneous tissue underneath. The pressure abrasion (injury No.1) infiltration of blood underneath injury No.5 contusion 2x2 cm involving the sterno hyoid muscles. Hyoid bone, thyroid cartilage, vessels and vertebrae normal and extract. - (7) Abraded contusion 5x3 cm over the left angle of jaw 7 cm outer to midline. - (8) Lacerated wound 1.5x0.3x0.3 cm, vertical on the temple 1 cm outer to outer angle of left eye and 8.5 cm above jaw border. - (9) Lacerated wound 0.8x0.2x0.2 cm on the left temple 1.5 cm outer to the outer end of left eye brow 1 cm above injury No.8 with surrounding contusion involving the whole thickness of ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -12- scalp. - (10) Lacerated wound 0.7x0.1x0.1 cm on the left half of forehead 1 cm above eye brow and 6 cm outer to midline with surrounding contusion involving the whole thickness of scalp. - (11) Lacerated wound 1.5x0.2x0.2 cm vertical on the forehead 2.5 cm to the left of midline and 5.5 cm above eye brow. - (12) Lacerated wound 2.5x0.5 cm on the left pinna 0.3 cm below its top, partially transecting it. The upper segment attached by skin at the back margin. - (13) Lacerated wound 3x0.3x0.3 cm transverse on the left side of head, 0.2 cm above attachment of left ear, corresponding to injury No.12. - (14) Contusion of left temporalis muscle 6x5x1 cm. (15) Abraded contusion 5x2 cm on the right upper eye lid and root of nose, its inner extend at midline. ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -13- (16) Multiple abraded contusion over an area 4x1 cm on the front of nose just above its tip. Its left extend 1 cm to the left of midline. - (17) Contusion 2x1x0.3 cm on the inner aspect of upper lip just to the right of midline. - (18) Contusion 1x0.5x0.3 cm on the inner aspect of lower lip just to the right of midline. - (19) Graze abrasion in multiple directions over an area 25x21 cm on the back of trunk 22 cm below top of shoulder. Its right extent 13 cm to the right of midline. - (20) Contused abrasion 3.5x2 cm on the back of right elbow. - (21) Abrasion 1x0.5 cm on the front of right leg 5 cm below knee. (22) Abrasion 2x0.5 cm, oblique on the front of right leg 5 cm below and 2 cm to the left of injury No.21. - (23) Abrasion 1x0.5 cm on the front of right leg 15 **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -14- cm below knee. PW28 opined that the postmortem findings were consistent with death due to ligature strangulation. PW28 stated that injury No.1 could be caused with MO2 ligature. Injury Nos.2 to 6 could be caused in normal strangulation by hands. PW28 further stated that injury Nos.8 to 14 could be caused with MO5 and injury Nos.17 and 18 could be caused by forcible covering of mouth with hands. 11. The prosecution mainly relies on the evidence of PW36 with regard to the recovery of various incriminating materials to connect the appellants with the commission of the offence. The main material to connect the third accused with the commission of the offence is the recovery of MO6 ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** mobile phone from his pocket at the time of the body search of the third accused. PW36 stated that when the third accused was arrested on 2.11.2006 at 5 p.m., his body was searched and at that time, MO6 was found and the same was seized by PW36 as per Ext.P14 mahazar. PW18 and PW19 were witnesses to the recovery of MO6 mobile phone. PW18 did not support the prosecution case. However, PW19 supported the prosecution case. PW19 stated during the cross-examination that MO6 was recovered from the third accused prior to the arrival of PW19 at the Police Station. PW19 stated that PW36 informed him over telephone that MO6 was recovered from the body of the third accused. Thereafter, he rushed to the Police Station to witness the recovery. However, in re- **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -16- examination, he stated that the recovery of MO6 was effected only after his arrival at the Police Station. Having gone through the evidence of PW19, we are not persuaded to accept his evidence that MO6 was recovered from the third accused after the arrival of PW19 at the Police Station. If that be so, the evidence of PW19 regarding the recovery of MO6 cannot be accepted. The mobile phone was identified by PW33, the brother of the deceased before the Court. However, he identified MO6 for the first time before the court. PW33 stated that he had given statement to the police that he had identified MO6. That was proved as an omission through PW36. 12. PW5 was the Nodal Officer of Idea Cellular Limited Company, who produced Exts.P2 to P4 and P7 call **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -17- particulars. Ext.P7 was produced to prove the ownership of MO6. However, Ext.P7 does not contain the certification as required under Section 65B of the Indian Evidence Act. The Apex Court in Anvar P.V. v. P.K. Basheeer and others (2014 KHC 4602 : AIR 2015 SC 180) held that the procedures prescribed under Section 65B of the Indian Evidence Act have to be complied with for the Electronic document to be admissible as secondary evidence under Section 65B of the Indian Evidence Act. The same view was taken by the Apex Court in Tomaso Bruno and another v. State of U.P. (2015 KHC 4047 : 2015 (7) SCC 178). Since Ext.P7 does not contain the certification as mandated under Section 65B of the Indian Evidence Act, the same cannot be accepted in evidence. Therefore, there is **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -18- absolutely no evidence to show that MO6 belonged to the deceased. The customer application form was also not produced to prove the same. That apart, PW5 did not state that the mobile phone of the deceased had IMEA number referred to in Ext.P7. It is true that MO6 was identified by PW35. However, he stated that he did not know the model of the said set. He also did not specifically state that MO6 belonged to the deceased. Therefore, there is absolutely no convincing material to conclusively prove that MO6 belonged to the deceased. That apart, there is no connecting evidence to prove the recovery of MO6 from the possession of the third accused. 13. The recovery of MO18 pants and MO19 shirt worn by the third accused at the time of commission of the **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -19- offence was effected by PW36 as per Ext.P17 mahazar pursuant to Ext.P17(a) disclosure statement given by the third accused. MO18 and MO19 were not sent for chemical examination. There is nothing before the court to indicate that MO18 and MO19 are incriminating materials. Even though PW8 stated that he had written the false number on an autorikshaw brought by the second and the third accused, he stated that he did not have previous acquaintance with the third accused. PW8 further stated that he had written the number on four sides of the autorikshaw. However, the autorikshaw seized contained numbers only at two places. Moreover, PW8 did not identify the autorikshaw. PW8 also could not state the number which he had written on the autorikshaw. PW38 **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -20- collected hairs from the autorikshaw. However, there is no material before the court to show that the hairs of the appellants or the other accused were obtained from the autorikshaw. 14. It is alleged that the third accused had robbed the purse of the deceased Krishnankutty. However, the purse was also not recovered by the prosecution. It is not discernible as to why the said purse could not be recovered by the police. The evidence mentioned above is not at all sufficient to connect the appellants with the commission of the offence of robbery and murder. 15. PW36 stated that when arrested and questioned, the second appellant had given Ext.P10(a) disclosure statement and in pursuant to Ext.P10(a) disclosure **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -21- statement and as led by the second accused, MO2 rope was recovered at the instance of the second accused by PW36 as per P10 seizure mahazar. The learned Public Prosecutor has submitted that the recovery of MO2 at the instance of the second accused is a strong circumstance to connect the second accused with the commission of the offence. PW9 was the witness to Ext.P10 recovery mahazar. He also supported the prosecution case. PW9 stated that MO2 was recovered at the instance of the second appellant as per Ext.P10 seizure mahazar. He stated that he witnessed the inquest and signed the inquest report. Thereafter, the second accused was taken for effecting the recovery of MO2. However, during cross-examination, he stated that the second accused and the police had already reached the **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -22- place of recovery when he reached there **.** He stated that he could not state as to when the police party and the accused reached there. He further stated that he was not aware as to whether MO2 was planted there by the police or not. However, in re-examination, he stated that when he reached there, he found the appellants being taken from the place where the dead body was found to the place from where the recovery was effected. PW9 stated that MO2 is having yellow and red colours. However, he stated before the police that the colour of the recovered rope was yellow. PW9 did not state before the police that the rope contained red colour as well. In the said circumstances, the omission in this regard was proved by PW36, the Investigating Officer. Ext.P43 Report of the Forensic Science **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -23- Laboratory would show that MO2 is a three plied yellow coloured synthetic plastic rope. Ext.P43 would show that the rope which was sent to the Forensic Science Laboratory contained only one colour namely, yellow. Ext.P10 is the seizure mahazar which would show that the rope recovered as per Ext.P10 seizure mahazar was having two colours namely, yellow and red. The length of MO2 is mentioned as 173 c.m. in Ext.P43. However, the length of MO2 is shown as 147 c.m. in Ext.P10. PW4 was the salesman, who stated that he sold a plastic rope having yellow and red colour to somebody. PW4 could not identify the appellants. PW4 specifically stated that the person who came to purchase the rope was not present in the court. The evidence of PW4 would clearly show that the **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -24- appellants did not purchase the rope. The rope was recovered from a tree which was having 1½ times the height of a person. The said tree was situated nearby 30 ft. away from the place where the dead body was found. The said rope was found hung on the said tree as per the evidence of PW36. The said tree was seen on the side of the mud road. It is only common knowledge that the Investigating Officer would conduct search near to the place where the dead body was found. It is clear from the evidence of PW36 coupled with Ext.P10 that the rope could have been found out even on a casual inspection of the place where the dead body was found. It further indicates that MO2 was not kept concealed by the accused as MO2 was visible to the public. In Mani v. State of Tamil ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -25- Nadu (2008 KHC 4031 : AIR 2008 SC 1021), the Apex Court held in paragraph 20 thus:- “This is apart from the fact that discovery admittedly was made from 300 feet away from the dead body of Sivakumar and after Sivakumar's body was inspected by PW14 as early as on 25.11.96. It would be impossible to believe that the Inspector did not search the nearby spots and that all the articles would remain in open unguarded till 6[th] December , 1996 when the discovery had allegedly been made. This was nothing but a farce of discovery and could never have been accepted particularly because all the discovered articles were lying bare open barely 300 feet from the of the deceased away body Sivakumar.” 16. The Apex Court in Mani (supra) further observed that since the discovery of the relevant articles in that case **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -26- had been made from the open ground though under the bush and that too after more than 10 days of the incident, such discovery would be without any credence. It was held in Mani (supra) that the discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. The above ratio in Mani (supra) was followed in the decisions in Sangili @ Sanganathan v. State of Tamil Nadu (2014 KHC 4580 : AIR 2014 SC 3756) and in Vijay Thakur v. State of Himachal Pradesh (2014 KHC 4606 : 2014 (14) SCC 609) by the Apex Court. 17. In this case, the dead body was found on 28.10.2006. The inquest was conducted by PW36 between 3 p.m. and 5.45 p.m. on 28.10.2006. PW36 also prepared **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -27- Ext.P9 Inquest Report. The discovery of MO2 was effected at 5.45 p.m. on 2.11.2006. It is impossible to believe that PW36 did not search the nearby spots and all the articles were kept unguarded till 2.11.2006. In this case, the discovery of MO2 was made from the open place after more than six days from the date of finding of the dead body and that itself, from a tree having not much height, situated nearly 30 ft. from the place where the dead body was found. Therefore, the said discovery cannot be given much credence. It does not stand to any reason that the Investigating Officer concerned did not even bother to look hither and thither when the dead body was found. It is also to be noted that even though MO2 was subjected to Microscopic examination as is evident from Ext.P43, no **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -28- tissue or body part of the deceased was found on MO2. This would show that there is absolutely nothing to connect MO2 with the crime. In view of the above reasons, we are not persuaded to accept such kind of farcical discovery, which had been relied upon by the court below without even taking into consideration of the vital facts which we have discussed above. 18. Even though there was recovery of MO5 at the instance of the second accused pursuant to Ext.P11(a) statement given by the second accused and as led by him, even the court charge did not mention about the attack with MO5 by the accused. MO5 also did not contain any blood stain. MO5 was also not sent for Serological examination. In view of the above reasons, the discovery of MO5 has no **CRL.A.Nos.97 OF 2013 & 185 OF 2012** consequence at all. 19. Discovery of MO8 to MO10 at the instance of the second accused pursuant to Ext.P26(a) disclosure statement given by the second accused is another piece of evidence to connect the second accused with the commission of the offence. PW36 stated that when arrested and questioned, the second accused had given Ext.P26(a) disclosure statement and pursuant to Ext.P26(a) disclosure statement, MO8 and MO9 kept in MO10 plastic cover were discovered from the bushes. PW21 is a witness to the discovery of MO8 to MO10. PW21 stated that MO8 to MO10 were recovered as per Ext.26 Mahazar by PW36 at the instance of the second accused. PW34 identified MO8. However, PW34 could not state about any identification **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -30- mark on MO8. PW35 also identified MO8. However, he could not also state about any identification mark to identify MO8. It is further in the evidence of PW36 that pursuant to Ext.P13(a) disclosure statement given by the second accused and as led by him, MO11 Speaker and MO12 watch belonging to the deceased and Exts.P35 to P40 RC book and other connected records were recovered at the instance of the second accused. PW16, PW17 and PW22 were the witnesses to the said discovery. However, they did not support the prosecution case. It is true that MO11 and MO12 were identified by PW33 and PW35 and MO12 was identified by PW34. It appears from the prosecution case that MO8 to MO10 and Exts.P35 to P40 were the materials taken by the accused from the **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -31- autorikshaw. The prosecution alleged that MO12 watch belonging to the deceased was identified by PW33 and PW35. PW33 is the brother of the deceased. He stated that his brother was residing away for the last more than 10 years. He never visited the place of residence of the deceased at Ernakulam, even though the deceased resided at Ernakulam for 10 years in different houses. PW33 also could not state the make of the Watch or any particular mark to identify MO12. He stated before the court that MO12 was having golden colour. However, he did not give any such statement before the police, and in the said circumstances, the said omission was proved through PW36. PW34 also identified MO12. However, he did not state about any mark of identification of MO12 to ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -32- the Investigating Officer. PW34 fairly conceded that he was not aware of any identification mark to identify MO12. In the said circumstances, the recovery of MO12 alone cannot be taken to hold that the appellants committed the offence. 20. Now, the question to be considered is as to how far the recovery effected in this case could be used to connect the appellants with the commission of the offence. The learned Public Prosecutor has submitted that the prosecution could effect discovery of the above said incriminating materials to connect the second accused with the commission of the offence. There is absolutely no reason to disbelieve PW36 with regard to the discovery of the above said articles pursuant to the disclose statements ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -33- given by the second accused, is the submission of the learned Public Prosecutor. 21. The learned Public Prosecutor further canvassed our notice to the decision of the Apex Court in Wasim Khan v. The State of U.P. (AIR 1956 SC 400) and argued that if it is proved that there is recent possession of the property of the deceased with the accused, it is a circumstance clearly indicating that the accused had murdered the deceased. 22. In Wasim Khan (supra), the Apex Court held that the recent possession of property of a deceased, in circumstance clearly indicating that he had been murdered and robbed, would suggest that not only the possessor of the property was a thief or a receiver of stolen property, but ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -34- that it also would indicate that he was guilty of a more aggravated crime which had connection with the theft. 23 **.** The learned Public Prosecutor also canvassed our notice to the decision of the Apex Court in Baiju v. State of Madhya Pradesh (AIR 1978 SC 522). In Baiju (supra), the Apex Court observed in paragraph 14 thus:- “As has been stated, the prosecution has succeeded in proving beyond any doubt that the commission of murders and the robbery formed part of one transaction, and the recent and unexplained possession of the stolen property by the appellant justified the presumption that it was he, and no one else, who had committed the murders and the robbery.” 24. The learned counsel for the appellants cited various decisions to hold that the recoveries in this case ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -35- cannot be believed at all, as PW36 had intentionally planted the materials for the purpose of creating evidence against the appellants. 25. The Apex Court in Vijay Kumar v. State of Rajasthan (2014 KHC 4100 : 2014(3) SCC 412) held that the recovery of incriminating articles made at the instance of the accused under Section 27 of the Indian Evidence Act, itself cannot form the basis of conviction. 26. In Dhan Raj @ Dhand v. State of Haryana (2014 KHC 4365 : 2014 (6) SCC 745), the Apex Court held that when the recovery of goods is reliable, then it does not indicate that the accused committed the murder and the only admissible fact which can be inferred is that they were **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -36- in possession of the stolen goods. 27. In Vijay Thakur v. State of Himachal Pradesh [2014 KHC 4606 : 2014(14) SCC 609], the Apex Court held thus:- “It is to be emphasised at this stage that except the so called recoveries, there is no other circumstance worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt”. 28. In this case, all recoveries connecting the second ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -37- and third accused, except the recovery of MO8 to MO10 were effected by PW36 before the production of the accused before the court on 3.11.2006. However, apart from the seizure of MO6 from the person of the accused and the discovery of MO2 rope and MO5 stone at the instance of the second accused, no other recovery is seen mentioned in the first remand report, which forms part of the record of the court. It is true that the remand report was not marked before the court. However, the first remand report was produced by the prosecution before the court. Therefore, even without formally proving the said document, it can be relied upon by the defence to falsify the prosecution version. The Apex Court in Ramaiah @ Rama v. State of Karnataka [2014(KHC) 4509 : AIR 2014 ## **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -38- SC 3388] held that the documents produced by the prosecution but not exhibited/formally proved can be relied upon by the defence even without formal proof thereto by prosecution, to falsify the prosecution version. Therefore, the first remand report available with the records can be used by the defence to falsify the prosecution version. The said remand report was submitted on 3.11.2006 at 5.35 p.m. before the learned Magistrate at the time of production of the accused for the first time before the court. The said remand report did not mention about the recovery of MO11 speaker, MO12 watch, the recovery of Exts.P35 to P40 and the recovery of the autorikshaw eventhough the said articles were allegedly recovered on 3.11.2006 as per Exts.P13 and P12 Mahazars. It is not discernible as to **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -39- why the said recoveries were not mentioned in the remand report. The evidence of PW36 would show that the autorikshaw was not discovered from the place disclosed by the first accused. However, the same was discovered only after following the tyre marks from the place shown by the first accused. The said autorikshaw was found inside the compound of Joby, who was not examined before the court. Exts.P35 to P40 were alleged to have been stolen from the autorikshaw. MO11 speaker was also stolen from the autorikshaw as per the prosecution version. The learned counsel for the appellants submitted that Exts.P35 to P40, MO11 and MO8 to MO10 were the materials found in the autorikshaw at the time of detection of the autorikshaw and it was only for the purpose of **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -40- connecting the appellants with the commission of the offence that those articles were planted as discoveries effected pursuant to the disclosure statement given by the accused and in the said circumstances, the said discoveries cannot be accepted. The discovery itself is a very weak piece of evidence. Therefore, in order to form conviction on the basis of the evidence of discovery alone, the court must be satisfied that the discovery is truthful. In this case, the non-mentioning of the discoveries of Exts.P35 to P40, MO11 speaker and MO12 watch in the first remand report gives room for suspicion with regard to the genuineness of the said discoveries. The above discussion would make it clear that the evidence of recovery of MO11 speaker, MO12 watch, Exts.P35 to P40 and the autorikshaw, is not **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -41- free from suspicion and hence, the evidence regarding recovery of the above articles cannot in any way help the prosecution to connect the appellants with the commission of the offence. In the said circumstances, the said recoveries cannot be used to connect the appellants with the commission of the offence of robbery and murder. MO8 chappals and MO9 shirt were found in MO10 plastic bag. There is no material before the court to show as to how MO8 and MO9 happened to be together in MO10 plastic bag. Even otherwise, the discovery of MO8 and MO9 alone cannot be sufficient to connect the second accused with the commission of the offence. 29. It is to be noted that the alleged autorikshaw was not hidden or concealed anywhere by the accused. The **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -42- autorikshaw was kept on the side of the public road. The autorikshaw was also not taken away to a far away place after the commission of the offence. The autorikshaw was also not dismantled by the accused. Having carefully gone through the evidence on record, we are satisfied that the evidence adduced by the prosecution is not sufficient and worthy of credence to connect the appellants with the commission of the offence of murder and robbery. The autorikshaw was recovered as per the disclosure statement of the first accused. The prosecution alleges that the motive for the incident was robbery of the autorikshaw and money from the accused. If that be so, the autorikshaw would have been disposed of or dismantled by the accused. It is also to be noted that the prosecution is dark with **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -43- regard to the purse of the deceased. No explanation was given by PW36 as to what happened to the purse of the deceased. It is discernible from the evidence that the accused and the deceased were autorikshaw drivers. Having gone through the relevant inputs, we are satisfied that the motive alleged by the prosecution could not also be proved. 30. Having bestowed our anxious consideration on the evidence on record, we are satisfied that the prosecution could not establish that the appellants committed the offences alleged against them and in the said circumstances, the conviction and sentence passed by the court below cannot be sustained. In the result, these appeals stand allowed setting aside **CRL.A.Nos.97 OF 2013 & 185 OF 2012** -44- the conviction and sentence passed by the courts below under Sections 120B, 447, 302 and 394 read with Section 34 I.P.C. and the appellants are acquitted for the said offences. The appellants are in jail. Therefore, the Superintendent of the jail concerned is directed to release the appellants forthwith, if their presence is not required in any other case. **Sd/- C.K.ABDUL REHIM, JUDGE** **Sd/- B.SUDHEENDRA KUMAR, JUDGE** dl/