Emamudeen s/o Abdul Samad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **CRL.A.No.638 OF 2016** **[AGAINST THE JUDGMENT DATED 22.08.2015 IN SC 1133/2007 OF I[st] ADDITIONAL SESSIONS COURT, TRIVANDRUM** **CRIME NO.162/2006 OF Fort Police Station , Thiruvananthapuram]** ## **APPELLANT/ACCUSED:** **EMAMUDEEN S/O ABDUL SAMAD, T.C 46/331, THYKAVU JUNCTION, PARUTHIKUZHY, POONTHURA WARD, MUTTARA VILLAGE.** **BY ADVS.** **SMT.INDULEKHA JOSEPH SRI.NEERAJ NARAYAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, 682 031.** **BY ADDL.DIRECTOR GENERAL OF PROSECUTION BY SR.PUBLIC PROSECUTOR SRI.ALEX.M.THOMBRA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2020,** **THE COURT ON 02-07-2020 DELIVERED THE FOLLOWING:** Crl.A.No.638 of 2016 :-2-: ## **J U D G M E N T** ## **Dated this the 02[nd] day of July, 2020** ## **N.ANIL KUMAR, J:** The appellant is the first accused in S.C.No.1133/2007 on the files of the First Additional Sessions Judge, Thiruvananthapuram. By judgment dated 22.8.2015, the learned Sessions Judge convicted and sentenced the appellant to undergo rigorous imprisonment for life and to pay a fine of Rs.2,00,000/-, in default to undergo rigorous imprisonment for 2 years more for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short 'the IPC'). Challenging the conviction and sentence, the appellant preferred this appeal. 2. The prosecution case in brief is that out of previous enmity, accused 1 and 2 conspired together in a bye-lane leading from Padmanabha Theatre to Ruby Nagar at East Fort, Thiruvananthapuram and in pursuance of their common intention to eliminate the deceased Hameed Kannu anxiously waited for a moment to execute the plan. Accordingly, on 30.4.2006, at around Crl.A.No.638 of 2016 :-3-: 9.30 pm, the deceased and second accused came to Karims Junction on the respective motor bikes bearing Registration No. KL-01/AG 3229(Bajaj CT-100) and KL-01/Z-8543 (Kawasaki Boxer) respectively and when the deceased Hameed Kannu proceeded for buying fruits from PWs.2 and 3, second accused followed him and when they reached on the road near Karims Fashion Corner building, the first accused waited for the arrival of the deceased Hameed Kannu and stabbed with a knife on his abdomen and inflicted a wound having a depth of 10cms. The second accused caused the deceased Hameed Kannu to lie there in a bleeding condition without giving him necessary medical attention. When CW10 and others attempted to rush the injured to the hospital, the second accused prevented them and as a result of which, the deceased succumbed to the injuries. 3. Immediately, after the occurrence, the second accused proceeded to the Police Station at around 4 a.m. on 1.5.2006 and lodged Ext.P13 First Information Statement before PW30 the Circle Inspector of Police, Fort Police Station. PW30 registered Ext.P13 (a) FIR. The apparel of the first informant was drenched in blood Crl.A.No.638 of 2016 :-4-: which caused suspicion to PW30. Hence, PW30 provided substitute apparel for the first informant and seized MO17 and MO18 apparel under Ext.P7 seizure mahazar. PW30 conducted inquest and prepared Ext.P14 inquest report and then sent the deadbody for postmortem examination. PW30 inspected the scene of occurrence and prepared Ext.P6 scene mahazar. During the investigation, the second accused passed away. PW30 recorded the statement of the witnesses, recovered the material objects, completed the investigation and filed the final report before court against first and second accused for the offences punishable under Sections 120B and 302 read with Section 34 of the Indian Penal Code and filed the final report before the learned Judicial First Class Magistrate Court-II, Thiruvananthapuram. The learned Magistrate committed the case to the Court of Session after completing the requisite formalities. 4. The case was numbered as SC No.1133/2007 before the Court of Sessions, Thiruvananthapuram. The learned Sessions Judge made over this case to the First Additional Sessions Court, Thiruvananthapuram for trial and disposal. Crl.A.No.638 of 2016 :-5-: 5. During the trial, PWs.1 to 32 were examined and marked Exts.P1 to P35 and MOs.1 to 23series. On closing the evidence of the prosecution, the first accused was questioned under Section 313(1)(b) of Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. He also denied the alleged recovery of MO19 knife in accordance with law. 6. On conclusion of the trial, the learned Sessions Judge acquitted the first accused under Section 120B and found him guilty under Section 302 of IPC and sentenced the accused as stated in paragraph 1 (supra). 7. PW26 the Associate Professor and Deputy Police Surgeon, Department of Forensic Medicine, Medical College, Thiruvananthapuram conducted autopsy on the body of the deceased on 1.5.2006 and issued Ext.P10 postmortem certificate indicating the following injuries: ## “INJURIES (ANTE MORTEM) _1. Incised penetrating wound with cleanly cut ends 2.4x0.7 cm, obliquely placed on right side of lower abdomen, the lower inner end 7 cm outer to upper margin of pubis. The abdominal cavity was seen penetrated, punctured Psoas_ Crl.A.No.638 of 2016 :-6-: _muscle of right side and cleanly cut the outer wall of right external iliac artery. The ileocaecal junction was seen infiltrated with blood over an area 12x6x0.5 cm. Retroperitoneal haematoma 25x13x3.5 cm was also present on right side. The wound was directed backwards, upwards and to the left for a total minimum depth of 10 cm._ _2. Abrasion 1x0.3 cm on the front of right knee.”_ 8. According to the prosecution, the death of Hameed Kannu @ Shahul Hameed had occurred on 30.4.2006 during the night, pursuant to a brutal attack against him from accused 1 and 2 at around 9.30 pm during the night on the same day. He was taken to the Medical College Hospital, Thiruvananthapuram. He was declared dead when he was brought to the hospital. 9. PW26 stated before court that injury No.1 sustained by the deceased is sufficient to cause death in the ordinary course of nature. She clarified that injury No.1 could be caused with MO19 knife. PW26 stated that the death of the victim would have occurred approximately 6 hrs. prior to and within 18 hours of the postmortem examination. On a perusal of Ext.P10 postmortem certificate, it is clear that injury No.1 sustained by the victim has a minimum total depth of 10 cm and it is directed backwards and upwards and to the Crl.A.No.638 of 2016 :-7-: left. On going through the evidence adduced by PW26, we are satisfied that the deceased HameedKannu @ Shahul Hameed died due to the penetrating wound sustained to his abdomen. There is no case for the accused that the death was accidental or suicidal. Thus, we are of the view that the death of Hameed Kannu @ Shahul Hameed was homicidal. 10. Having regard to the entire facts and circumstances of the case, we have heard Sri.Arun.V.G., the learned counsel appearing for the appellant and Sri.Alex.M.Thombra, the learned Senior Public Prosecutor. Perused the entire materials on record. 11. On a perusal of the entire evidence, we are of the view that the prosecution has not adduced any direct evidence to support the prosecution case. PWs.1 to 8 have turned hostile to the prosecution. During investigation, their statements under Section 161 of Cr.P.C. were recorded by the investigating officer. A statement recorded under Section 161 of Cr.P.C. is not a substantive piece of evidence. In view of proviso to Section 162 (1) of Cr.P.C., the said statement can be used only for the purpose of contradicting the maker thereof in the manner provided therein. There is nothing on Crl.A.No.638 of 2016 :-8-: record to indicate that although the trial court granted permission to put leading questions to the witnesses, which might be asked in cross-examination, no such questions were put to the witnesses. The statements recorded under Section 161 of Cr.P.C. were not contradicted in accordance with law. In the light of the above facts, no materials were brought on record although PWs.1 to 8 were examined before the trial court. Unless necessary materials have been brought on record during examination of the witnesses, it is not correct to act upon the evidence so recorded. 12. PW9 was working as a staff under the deceased Hameed Kannu. He is not an eye witness to the occurrence. He stated that he did not witness the occurrence involved in this case. PW10, the President of Jama-ath during the year 2007 stated that he did not witness the occurrence. He turned hostile to the prosecution. PW11 stated before court that he had seen the deceased Hameed Kannu going to the house of Shahul Hameed during the odd hours of the day and in connection with the same, the local people filed a complaint before the Jama-ath. However, he also turned hostile to the prosecution. PW12, yet another witness examined by the Crl.A.No.638 of 2016 :-9-: prosecution, also turned hostile to the prosecution. On a perusal of the evidence let in by PWs.1 to 12, it is difficult to understand the purpose of their examination before the trial court. 13. PW13 is an official witness. On 13.6.2006, PW13 is working as Writer in the Police Station at Poovar. She stated that on that day, the Sub Inspector of Police, Poovar Police Station entrusted an amount of Rs.6320/- to keep in safe custody. As directed by the Sub Inspector, she had produced the amount before the C.I.of Police. PW14 is yet another police constable working in the Poovar Police Station on 12.6.2006. According to him, on getting reliable information, they proceeded to the river bank and arrested the accused after seizing an amount of Rs.6320/- from the custody of the accused. In Ext.P2 mahazar, PW14 is a signatory. PW15, a headload worker of Chalai market was examined to prove the seizure of mobile phone. However, he turned hostile to the prosecution. 14. PW16, an autorickshaw driver, was examined to prove that the deceased was taken in his auto to the Medical College for treatment. However, he turned hostile to the prosecution. PW17 is the wife of Shahul Hameed. She stated that the deceased Hameed Crl.A.No.638 of 2016 :-10-: Kannu was his husband's friend. She also turned hostile to the prosecution. The remaining evidence is that of PWs.18 to 25. PW18 is the Assistant Chemical Examiner, Chemical Examiner's Laboratory on 2.5.2006. On examination of 5 sealed bottles containing viscera and contents of deceased Hameed Kannu and noted ethyl alcohol in item Nos.1 to 4 . PW19, the Assistant Director (Serology), Forensic Science Laboratory, Thiruvananthapuram examined the material objects involved in this case and opined that RH factor is not detected in MO19. PW20 is a signatory in Ext.P6 mahazar. PW21 was working as Head Constable of the Fort Police Station on 1.5.2006.He stated that the second accused-Shahul Hameed gave First Information Statement before the Circle Inspector, Chalai on 30.4.2006 at 9 pm. He further stated that while so, the second accused was drenched in blood. He is a signatory in Ext.P7 mahazar. He identified MO17 and Mo18 clothes worn by the second accused when he gave statement before the Police. PW22, a headload worker, is a witness in Ext.P8 mahazar. PW23 accompanied the Assistant Sub Inspector of Police, Fort Police Station on 30.4.2006 to the occurrence place. PW24, the Village Officer, Thycaud had prepared Crl.A.No.638 of 2016 :-11-: Ext.P9 scene plan. PW25 is a formal witness examined to prove that the body of the deceased was handed over to PW1 after postmortem examination. 15. PW27 Abdul Khadar is the brother of the deceased. He stated that his brother was conducting mainly fish vending in the Neyyattinkara market. In addition to the same, he was doing business in electrical items as well. According to him, second accused Shahul Hameed was working as a staff of his deceased brother. He also stated that the second accused borrowed money from his brother which was not returned despite several demands made to him. He came to know that his brother was assaulted by the second accused and others at Karims Junction adjacent to Chalai market. He further stated that he had an occasion to quarrel with the accused as he refused to pay money to the accused. According to him, on 28.1.2006, the accused inflicted a severe blow on his legs whereby he had sustained comminuted fracture. Consequently, the Police registered Crime No.82/2006 before the Neyyattinkara Police Station as against the first accused, pursuant to Ext.P11 statement given before the Police. Crl.A.No.638 of 2016 :-12-: 16. PW28 is the wife of deceased Hameed Kannu. She stated that the second accused borrowed money from her husband deceased Hameed Kannu. She is not an eye witness to the occurrence. 17. PW29 is a mahazar witness. PW32 verified the charge sheet prepared by the investigating officer. PW30 recorded Ext.P13 FIS of the second accused. PW31 arrested the accused and conducted the investigation in this case. PW31 questioned the accused and recorded his confession statement. The first accused in custody stated that the knife was kept behind an old gunny bag adjacent to Achankadavu. Based on the information, PW31 proceeded to the place where the knife was concealed and recovered MO19 knife as pointed out by the accused as per Ext.P12 mahazar. 18. The trial court mainly relied on the recovery effected under Section 27 of the Evidence Act and convicted and sentenced the accused for the offence punishable under Section 302 of the IPC. The trial court is of the view that all other witnesses turned hostile to the prosecution deliberately. With regard to Section 27 of the Evidence Act, the trial court is of the view that the recovery of MO19 Crl.A.No.638 of 2016 :-13-: coupled with the evidence of PW27, the brother of the accused would be sufficient to prove the occurrence in this case. The trial court has taken into consideration of overall character of the first accused well pictured in this case though the relevant witnesses did not show courage to depose before the court. 19. In **Vijay Thakur** v. **State of Himachal Pradesh** [2014 KHC 4606], the Apex Court held that going by the scheme of Section 27 of the Evidence Act, what is important is discovery of the material object at the disclosure of the accused. However, such disclosure alone would not automatically lead to the conclusion that the offence was committed by the accused. In the case at hand, there is no reliable evidence to connect the accused with the crime. It is not correct on the part of the trial court to convict the accused relying on the disclosure made by the accused and the consequent recovery effected by the investigating officer. The blood stains found in MO19 is also not proved. The RH factor is not located in this case. 20. During the trial, the appellant denied his involvement in the crime. He maintained that he was falsely implicated in this case. All the independent witnesses turned hostile to the prosecution and Crl.A.No.638 of 2016 :-14-: failed to support the prosecution case. PW27 is the only witness to support the prosecution case to prove the rivalry between the second accused and the deceased. However, he did not witness the occurrence. The learned Sessions Judge accepted the testimony of PWs.27 and 31 as proof of incriminating circumstances. The circumstance, according to the learned trial judge, is that the conduct of the appellant was bad. Such a finding is against the scheme of the Evidence Act. 21. After taking into consideration of the totality of the facts and circumstances of the case and the evidence on record by the prosecution, we find that many important links are missing so as to form a complete chain of evidence, which could conclusively establish the guilt on the part of the appellant. In the absence of reliable evidence, moral conviction on extraneous consideration is unsustainable in law. In view of the above discussion, the judgment of the trial court convicting the accused and order on sentence dated 22[nd] August, 2015 passed by the trial Judge are hereby set aside. The appeal is allowed. The appellant is acquitted of all charges. The Crl.A.No.638 of 2016 :-15-: appellant is in custody. He is directed to be released forthwith in case he is not required in any other case. sd/- **A.HARIPRASAD, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/